Sarah Leamon: Reproductive rights stand on a shaky foundation in Canada

They risk being further destabilized by the Conservative party's repeated leadership shuffles, according to a Vancouver lawyer

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      “Don’t worry about access to reproductive rights.  We live in Canada.  Everything will be fine.”

      Following the bombshell leaked draft of the U.S. Supreme Court’s upcoming decision in Dobbs v. Jackson Women’s Health Organization, this is the type of comment you can typically expect to hear during watercooler talk about abortion access and reproductive rights in our country.

      But how accurate is it?

      Understanding reproductive rights in Canada requires a quick history lesson. And, as you will learn, it’s a sordid history.

      Prior to 1988, abortion was explicitly prohibited by federal law. Although the procedure was first banned in 1869, it was criminalized in 1969 under the Criminal Law Amendment Act.  

      The Amendment Act, however, paved the way for therapeutic abortions for the first time. This allowed an abortion to be legally performed, without penalty, on the recommendation of a committee of doctors. In order to recommend the procedure, the committee needed to deem it necessary to preserve the life or health of the mother.

      In spite of this apparent loosening of the restrictions, significant barriers remained.    

      There were serious and chronic access issues throughout the country. Women were still unable to exercise any unilateral choice over their health-care decisions. Instead, they were left at the mercy of a bureaucratic medical system that was often complex, unfriendly, and impassable. 

      Moreover, the criminal sanctions against those caught in contravention of the law were severe.  The maximum penalty for a doctor, or anyone else who illegally assisted a woman in ending her pregnancy, was life in prison. If the woman was prosecuted, she could spend up to two years behind bars.

      But by the late 1970s, the tides were changing. In 1976, Canada entered into the United Nations’ International Covenant on Civil and Political Rights, which stated that every person had the right to liberty and security of person. This foreshadowed what was to come to Canada in the following decade. 

      It also helped to inspire the civil disobedience of Dr. Henry Morgentaler. 

      Dr. Morgentaler was a champion of women’s rights. He had been operating illegal abortion clinics in Canada since the late 1960s. Dr. Morgentaler was firmly committed to the idea that women should be provided with comprehensive access to reproductive medicine and should be empowered to make their own choices about their healthcare and personal autonomy. He was so committed, in fact, that he endured numerous police raids, criminal charges, and public prosecutions related to the operation of his clinic. 

      No stranger to the justice system, Dr. Morgentaler first found himself before the Supreme Court of Canada in 1976. His attempt to overturn abortion laws at that time was unsuccessful.  The legal foundation just wasn’t there.    

      That changed in 1982. It was then that then prime minister Pierre Trudeau enacted the Canadian Charter of Rights and Freedoms. Like the International Covenant, it further cemented every Canadian’s right to liberty and security. 

      Just six years later, Dr. Morgentaler went in for round two. He found himself before the Supreme Court once again. This time, the Charter provided him with the foundation for success.  The court held that Canada’s abortion laws violated section 7 of the Charter. They were consequently struck down.

      Now, here’s where it gets really interesting. Typically, when a law is struck down by the court, the court does not replace the law. Instead, it puts the matter put back into the hands of the legislative branch, which then attempts to fill the gap as it sees fit and within the confines of the newly established law. 

      But with abortion, it didn’t happen that way.

      Instead, the government du jour opted out of drafting any new laws.  What was left was a legal vacuum; a situation where the pre-existing abortion laws had been struck, but no new laws were introduced to replace them. The issue was perhaps just too contentious for any politician to touch.  The result was very Canadian stale-mate on the issue.  

      Now, 40 years later, the status quo remains.

      The only real attempt to define the issue, which happened in 1990, failed miserably.  The Mulroney government tried to take action on the abortion issue by introducing Bill C-43, which sought to recriminalize the procedure. However, it suffered an abrupt end at on the Senate floor when a tie vote caused its automatic defeat.

      Since then, only a fringe handful of private members bills have made their back way into Parliament, each one—thankfully—as short-lived as the last. Without broader political support, it seems that any bill on the issue is not likely to get very far.  

      The stalemate remains.

      But what this means, is that without any legal guarantees on abortion rights, we are left to rely on our elected members of Parliament not to stir the pot. 

      With a number of very vocal and well-funded antichoice organizations in Canada, this position is precarious. For decades, these organizations have used their resources to leverage their agenda in Parliament. The impending SCOTUS decision appears to have only reinvigored their efforts.

      Moreover, the shaky foundation of reproductive rights in Canada is further destabilized by the instability of the Conservative party, which has been chronically without a leader over recent years.

      The two most recent party leaders have had a poor track record when it comes to reproductive rights. While Andrew Sheer was vocal in the past in his opposition to abortion, Erin OToole claimed to be pro-choice while simultaneously espousing and supporting a decidedly antichoice agenda. 

      This certainly does not bode well. 

      Moreover, a recent motion by the Bloc Québécois to have members of Parliament confirm the right to abortion in Canada failed as Conservative MPs were told to abstain and warned against commenting on their views one way or the other. 

      Although the Liberals have committed $3.5 million to improving access to reproductive rights for Canadian women, there is little doubt that as abortion comes back into the political spotlight, tumultuous times lay ahead. 

      So next time someone tells you not to worry about reproductive rights in Canada, consider politely declining their advice.