The Legalization of Abortion

1969 witnessed a radical and revolutionary transformation in terms of women’s reproductive rights in Canada: the Criminal Code was modified, making abortion an act which was no longer defined as illegal.[1] Primarily, this momentous resolution allowed for women to use their voices to speak of issues relating to their health, as prior to the 1969 refinement of the Criminal Code, any woman who received an abortion could have been tried in court and imprisoned for up to two years.[2] In deciding what moment we as a group wanted to discuss, one issue was agreed upon consensus: women’s rights. A multitude of moments make up what Canada is today, however the history of women is long rooted in canadian history, and is essential when discussing the biography of this country. 2018 still represents a world in which inequality is present amongst men and women, and in order for the public to understand why feminism is still relevant and necessary today, it is necessary for them to have knowledge of the everlong fight women have endured. The government once had the power to tell women what they were and were not permitted to do, though this essay will show one of the first steps taken to allow for female agency over their bodies.

Since the decade of Confederation, abortion in Canada has been a topic of debate. In 1869, under section 251 of the Criminal Code, Canada passed a law stating all abortion was illegal.[3] [4] This law punished health professionals providing the service to women more severely than it did the individual obtaining the abortion.[5] The 1879 trail of Doctor Emily Stowe, for which she was acquitted, was a high-profile case in which she was accused of performing an abortion procedure.[6] Health concerns for the women having abortions monopolized the discussion on the issue in Canada as they encouraged the procedure to be considered illegal in order to have control over who could perform the procedure, certified rather than faulty doctors, and to avoid a declining birthrate.[7] Another hurdle regarding the abortion laws was the intersection between the federal and provincial government responsibilities. While the Criminal Code is federal jurisdiction – health care, which includes abortions, is under provincial jurisdiction.[8] This proved difficult for sentencing and decriminalizing the procedure. However, women’s reproductive health was being impacted by the absence of abortion services. The medical discourse and emphasis on population growth as sustaining the nation in addition to the jurisdiction struggle continued into the 20th century.[9]

 

A Changing Status

After their significant role in Second World War, Canadian women continued to demand equal rights with a renewed fervour.[10] Equality between men and women began to be considered a necessity rather than a choice.[11] Although women’s salaries were significantly less than men whilst performing the same job, their role in the war as paid labourers in non-traditional fields contributed to a rise of women in the workforce, breaking gender boundaries.[12] With their changing role in society, women were calling for change and a controversial topic was the right to abortion.

Women taking part in a demonstration in New York demanding safe legal abortions for all women. Accessed February 28th 2018. https://www.rollingstone.com/politics/news/abortion-backlash-women-lose-19771103

Second wave feminism in the 1960s and 1970s fostered a climate in which the pro-choice perspective and distaste for anti-abortion criminal nature was growing.[13] A Royal Commission on the Status of Women was created by the government in 1967 and organized by Judy Marsh, the sole woman cabinet minister.[14] They demanded reforms in “education, employment, immigration, criminal and family law, and child care” that were not being implemented straightaway.[15] Throughout the 1960s, Doctor Henry Morgentaler advocated for the abolishment of the criminal law to the government health and welfare committee as a spokesperson for the Humanist Association of Canada.[16] As he lobbied for the parliamentary group, he propagated his message to ensure that abortions were performed securely, and free from any hazard.[17] Upon multiple requests from women in need, he later opened up abortion clinics across the country despite the fact that performing abortions was still a crime.[18] In 1967, the Women’s Liberation Movement and Canadian abortion Law Reform Association petitioned for “abortion on request”[19] and a national referendum so that women could vote on this issue.[20] These women felt that government grievances regarding abortion stemmed from disapproval of women having sexual freedom.[21]

 

Laws Finally Changed

The Canadian Criminal Code was amended on August 26, 1969, decriminalising homosexuality, the sale of contraceptives, as well as making gun laws more strict among other amendments. Within those was the decriminalisation of abortion. This was proposed by Pierre Trudeau in December of 1967, who was the Justice Minister at the time. He claimed that “the state had no business in the bedrooms of the nation.”[22]  At the moment of passing the amendment, John Turner was the Justice Minister who brought Trudeau’s propositions to Parliament and implemented them.[23] There were extensive debates in Parliament on the issues before the amendment was passed, with the bill receiving some strong opposition.

With evidence that both women and children’s health improved with more easily accessible abortions – as underground abortions proved unsanity and dangerous, the government made the decision to make abortions more readily available, however specific conditions were required for an abortions to be allowed. The conditions necessitated the procedure to be performed in an accredited hospital by a physician, as well as the permission of a Therapeutic Abortion Committee consisting of at least three physicians. The approval of the abortion consisted upon the evidence that there were health endangerments to the pregnant woman if an abortion was not to be performed.[24] The number of these Therapeutic abortions performed greatly increased following the amendment of the Canadian Criminal Code, and deaths due to illegal abortions dropped immediately following this.[25] Furthermore, the number of births in Canada also rose despite an increase of legal abortions by over 10,000. Apart from secular reasons, there was fear of abortion becoming the primary method of contraception, as it had become in Eastern Europe and Japan.[26] Through allowing certain cases to be approved, the government was acknowledging the rise of women’s rights movements, with one of their demands being the loosening on restrictions of abortion.

The changed Criminal law under Section 251, allowing women who were experiencing potentially threatening pregnancies access to abortion, represented far more than the decriminalization of abortion in Canada. In a nation-wide context, having a large population with roots in Catholic French rule and a decreasing birth rate, this moment demonstrated a successful push from the 60s feminist and social justice movements toward a globalizing and modernizing cold-war society.

Early Christian Writings Against Abortion. Accessed February 28th 2018. http://thesplendorofthechurch.com/2016/04/08/early-christian-writings-against-abortion-by-aloysius-kayiwa/

 

Deeply Religious Roots

Having a considerable Catholic population as the foundation of Canada, conservative and religiously-influenced policy making was more common than one might believe[27]. With the election of liberal Prime Minister Pierre Trudeau to office in 1968, this legislative change was a symbolic moment for the secularization of women’s rights and the modernization of family planning policy in Canada. In the context of post- World War Two culture and capitalist ideology standpoint, women’s ability to family plan was crucial, as women became increasingly integrated into the workforce and pursued greater degrees of education. This is an example of legislative change being delayed[28], as with the use of contraceptives became widely used since the late 1930s[29].

Despite the decriminalization and the amendment on abortion, it continued to be a taboo and hard to access. However, while the significant reduction of maternal mortality rates due to illegal abortion [30]in a developed country such as Canada seemed unusual, this gained the attention of the expanding human rights and women’s liberalization movements from the 60’s and identified illegal abortion as being a serious public health policy problem.  The push to legalize abortion for the sake of maternal sanctity represented a liberal shift in public policy – especially in the context of the falling birth rate in Canada for the greater extent of the beginning of the century, having a tendency to reinforce ‘protection’ of the family rather than to undermine it. This ‘first step’ created public consciousness and capacity for direct demand toward the government to go further – unifying feminists to fight for abortion without restrictions for those under 12 weeks of pregnancy, and therefore gaining momentum for women’s sovereignty over reproduction processes.[31]

In many ways, the decriminalization of abortion also represented the effects of globalization and capitalist neoliberal ideals– with the Abortion Act of 1967 “loosening its restrictions on abortion [in England]” [32], and the legalization of abortion in many other countries such as Japan and Switzerland[33] – middle and upper-class Canadians began to travel to access legal abortion services. With neighboring countries such as the United States experiencing similar demands of action – the increase in technology and media access can be seen as a projection of global development creating international pressure on Canada to modernize. This pressure also existed within the medical field, with doctors “lobbying for the removal of reference to contraception and abortion from the criminal code” [34].  Doctors were willing to come forward to defend fertility control because their British and American counterparts were supporting it and employed a large number of professional doctors – and the development of ‘the pill’ in the late 1950s having such a great profit, luring in the business and medical developers into the fight for ‘pro-choice’ policies.

The legalization of abortion also saw a significant amount of backlash, raising several important questions surrounding access to abortion post 1969 and the problematic drafting of the amendment itself. Inequalities became increasingly pronounced as data collection grew showing that women who lived in more urban areas had a much higher approval rating from a physician committee as a result from the lack of physicians in rural areas – posing systematic inequalities for women in less populated areas[35]. Discrimination against religious and socioeconomic status also became apparent, as wealthy protestant women saw the highest approval rate, towering over Catholic, as well as, middle to lower class women. The clear beneficiary population was reflective of the WASP women’s liberation movement, but nevertheless, the intersectionality of social movements magnified a diverse voice throughout the 70s and 80s pressuring government for legislative reform.

Photo by Steve Rhodes. Accessed February 28th 2018. https://reformjudaism.org/blog/2014/07/28/are-anti-abortion-laws-un-jewish

In conclusion, the 1969 legalization of abortion was a moment that greatly impacted Canadians, however, it is imperative to acknowledge that this moment did not attain its full potential. This action was an example of the secularisation of government policy: the church was a great supporter of the pro-life argument, yet the Canadian government did not fully allow the church to influence their decision. Instead, the government adopted a new policy despite their knowledge that the church held a completely opposite view. Moreover, even after 1969 doctors were still not exempt from being taken to court for performing abortions. Dr. Henry Morgentaler was charged with performing abortions illegally, and his case made it to the Supreme Court of Canada in 1988 where it was ruled that the Criminal Code’s law on abortion infringed on women’s rights as they were stated in the 1982 Charter of Rights and Freedoms.[36] This case demonstrates that the 1969 decision did not have as much of an impact on Canadian society as some people thought it would have, though simultaneously showed that women did not really have the option to get an abortion unless their pregnancy was truly life threatening. Finally in 1990, the House of Commons passed a law with a vote of 140-131, that would have made abortion illegal again.[37] However  luckily in January 1991, the Senate did not pass the bill, thus ending the proposed law.[38] This failed attempt to re-criminalize abortion, which occurred after the Supreme Court ruling in 1988, indicates the view of certain individuals in government who continue to believe they exercise the ability to control women’s bodies. Furthermore, the scare of re-criminalization provides proof that feminism is as necessary as ever in showing that women’s rights must be recognized. This moment should be celebrated, but should also be looked at with a certain level of scrutiny – 1969 was less than 50 years ago, and if we look at the big picture, there is still a great deal of progress to be made regarding women’s rights.

[1] Linda Long, “Abortion in Canada,” The Canadian Encyclopaedia, Government of Canada, http://thecanadianencyclopedia.com/en/article/abortion/#h3_jump_0.

[2] Linda Long, “Abortion in Canada.”

[3]Fertile Ground: Exploring Reproduction in Canada, ed. Stephanie Paterson, Francesca Scala, and Marlene K. Sokolon (Montreal and Kingston: McGill-Queen’s University Press, 2014), 234. https://ebookcentral.proquest.com/lib/mcgill/reader.action?docID=3332769&query=.

[4] Ibid., 244.

[5] Ibid.

[6] Ibid.

[7] Ibid., 234.

[8] Kathryn McCannell, Claire McCarthy, and Barabara Herringer, “Images of Women in Canadian Social Policy: Em-bodying Patriarchy,” in Anatomy of Gender: Women’s struggle for the Body, ed. Dawn H. Currie and Valerie Raoul (Montreal-Kingston: McGill-Queen’s University Press, 1992), 179. http://www.jstor.org/stable/j.ctt7zt0gn.16.

[9] Fertile Ground, 4.

[10] Margaret Conrad, Alvin Finkel, and Donald Fyson, Canada: A History 3rd Edition, (Don Mills: Pearson Canada, 2012). 416.

[11] Ibid., 416-417.

[12] Ibid., pp. 366-367, 417.

[13] Fertile Ground, 235.

[14] Conrad, Finkel, and Fyson, Canada: A History, 417.

[15] Ibid.

[16] Barbara Kermode-Scott, “Henry Morgentaler,” BMJ: British Medical Journal 347, no. 7923 (2013): 27, http://www.jstor.org.proxy3.library.mcgill.ca/stable/23495656.

[17] Ibid.

[18] Ibid.

[19] Moira Armour and Pat Stanton, Canadian Women in History: A Chronology (Toronto: Green Dragon Press, 1990), 84.

[20] Ibid.

[21] Ibid.

[22] Corelli, Rae. “State leaves bedroom but little has changed.” Toronto Daily Star, August 27, 1969. Accessed February 28, 2018. https://proxy.library.mcgill.ca/login?url=https://search.proquest.com/docview/1419932605?accountid=12339.

[23] Burns, John. “Abortion, homosexual changes become effective in 3 weeks.” The Globe and Mail, August 6, 1969. Accessed February 28, 2018. https://proxy.library.mcgill.ca/login?url=https://search.proquest.com/docview/1242419619?accountid=12339.

[24] McCannell, Kathryn, Claire McCarthy, and Barbara Herringer. “Images of Women in Canadian Social Policy: Em-bodying Patriarchy.” In Anatomy of Gender: Women’s Struggle for the Body, edited by Currie Dawn H. and Raoul Valerie, 175-88. McGill-Queen’s University Press, 1992. http://www.jstor.org/stable/j.ctt7zt0gn.16.

[25] Schwenger, Cope W. “Abortion in Canada as a Public Health Problem and as a Community Health Measure.” Canadian Journal of Public Health / Revue Canadienne De Sante’e Publique 64, no. 3 (1973): 225. http://www.jstor.org/stable/41987973.

[26] Schwenger, Cope W. “Abortion in Canada as a Public Health Problem and as a Community Health Measure.” Canadian Journal of Public Health / Revue Canadienne De Sante’e Publique 64, no. 3 (1973): 223. http://www.jstor.org/stable/41987973.

[27] Angus McLaren and Arlene Tigar McLaren, The Bedroom and the State: The Changing Practices and Politics of Contraception and Abortion in Canada, 1880-1997 (Don Mills: Oxford University Press, 1997), 132

[28] McLaren, The Bedroom State, 9.

[29] McLaren, 13.

[30]Cope W. Schwenger, “Abortion in Canada as a Public Health Problem and as a Community Health Measure”, Canadian Journal of Public Health Vol. 64, No. 3 (1973): 226.

[31] McLaren, 160.

[32] Christabelle Sethna, Beth Palmer, Katrina Ackerman, and Nancy Janovicek “Choice, Interrupted: Travel and Inequality of Access to Abortion Services since the 1960s” Labor Issue 71, Spring 2013 (2013): 32.

[33] Sethna, Palmer, Ackerman, and Janovicek, “Choice, Interrupted”, 31

[34] McLaren, 133.

[35] Schwenger, “Abortion in Canada”, 225.

[36] Linda Long, “Abortion in Canada.”

[37] Linda Long, “Abortion in Canada.”

[38] Linda Long, “Abortion in Canada.”

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