Abortion Politics and Law in Canada
This module is divided into two sections. While the second section will focus on the concept of reproductive justice, this first section will first provide an overview of reproductive rights and abortion debates in Canada. This part of the module covers the following two issues:
- Why are abortion politics important?
- A brief history of abortion law in Canada.
A note on language:
This part of the module will use the language of “men” and “women” given that the abortion debate has mostly occurred on this terrain. That being said, it is important to keep in mind that not only women have abortions, and not only women get pregnant. Transmen and non-binary folks face additional barriers and challenges when it comes to reproductive rights and abortion access.
Why are abortion politics important?
Abortion is an essentially contested issue. This is true even in Canada, where the abortion debate is relatively stable. Politicians are asked about it in every election and parties have policy debates about it. About 99% of states regulate abortion, and as we will see, Canada is a rare exception. Abortion is a concrete site where sexual politics are regulated by the state. Even in Canada the state plays an active role in shaping how we talk and think about abortion. In the 2019 election, we saw the enduring weight of the abortion debate when Andrew Scheer was hurt by his pro-life views (even when he promised not to reopen the debate).
Abortion politics can be understood through at least four frames:
- Religion vs. Secularity
- Men vs. women: The abortion debate raises questions about fairness and equality. Should men have any say in abortion? Should the state have a say in the reproductive lives and choices of women and folks who have abortions?
- Right to choose vs. right to life: There is a clash between understandings of human rights, e.g. who has rights and what rights should matter.
- Debates over the appropriate role of the state in people’s personal and reproductive lives.
Abortion has also come to be a defining issue for both feminism, progressive politics, and conservative politics. It has been significant matter for the feminist movement because it gets to questions of biological sex difference, bodily autonomy, and gendered and reproductive divisions of labour.
A brief history of the abortion debate in Canada
1. Early History
Documented abortions have a long history in North America, stretching well before colonization. There are accounts that suggest that many Indigenous women used a variety of practices to induce abortion, and it was also a fact of life after colonization as well. Abortion was practiced by women in settler colonies as it had been in their European countries of origin.
Prior to the 1820s, women’s reproductive health was largely seen as an issue left to the knowledge and discretion of midwives, the medical practitioners who handled most women’s health concerns of the time. Moreover, it was not always a highly contested, political issue nor has it always been viewed from the perspective of dichotomized “pro-life” and “pro-choice” positions. This meant that information about abortion and contraceptives was largely communicated by a network of women that remained at the periphery of the formal political and medical realms.
To the extent that abortion was subject to legal regulation, the standards in both the U.S. and Canada were relatively permissive until the 1800s, and followed the quickening distinction. Quickening was understood as the moment when a woman is able to feel the fetus move in her womb, usually occurring around the fourth month of pregnancy.
Beginning in the early 1820s, however, both Canada (under British colonial rule) and the newly independent U.S. began to enact increasingly restrictive laws fully prohibiting abortion. During this era, abortion became more commercialized. Public advertisements began to appear, making abortion a more obvious social reality and gaining public attention as a matter of political concern. At the same time, women’s reproductive health began to be seen as an area of medical expertise, and male physicians began expanding their control over women’s reproductive health. In order to stake out the moral high ground over midwives, physicians increasingly opposed abortion, which was largely practiced by midwives.
In this era, early opposition to abortion did not take on the explicitly religious and highly moralized tone that characterizes the debate today. Instead, physicians opposed abortion on the grounds that it harmed naïve and vulnerable women and focused on redefining the pre-quickening period as fundamentally the same as post-quickening from a scientific perspective. Largely driven by physicians, by the end of the 1800s abortion was illegal throughout all of North America, and would be for the next hundred years. This nearly blanket criminalization of abortion remained the legal norm well into the 1960s. As with most prohibitions, this didn’t mean abortion wasn’t practiced, as women with means could access it, and women without means would attempt to access it. Nevertheless, it was illegal in the eyes of the state.
2. The decriminalization of abortion (1969)
Abortion was decriminalized in 1969 in Parliament by Canadian Prime Minister Pierre Elliott Trudeau. Interestingly, it was not feminists or an emerging women’s movement that pushed for initial decriminalization of abortion in the 1960s. At this time, the women’s movement was limited, had not mobilized, and did not have much political influence in Canada. Rather, in 1966 both the Canadian Bar Association and the Canadian Medical Association started to put pressure on the government to legalize abortion. The driving force behind the original decriminalization of abortion, then, was not gender equality or women’s rights but instead the professional self-interest of doctors and lawyers. Unsurprisingly, given that the push to decriminalize abortion came in large part from physicians, they were central to the new abortion law introduced by Trudeau.
Section 251 of the Canadian Criminal code became the new law regulating abortion. The law gave doctors the final say about whether women could access abortion care, through the implementation of therapeutic abortion committees (TACs). TACs consisted of a committee of at least three doctors appointed by the hospital board, whose job was to determine whether “the continuation of the pregnancy would or would be likely to endanger the life or health of the pregnant woman.”
While Section 251 undoubtedly liberalized access to abortion in Canada (women could now access legal abortion in some cases, whereas before 1969 they couldn’t), hospitals and doctors now acted as gatekeepers for women seeking abortions. Women did not have free reproductive choice. Rather, the state, through hospitals, retained the ability to choose whether and when abortion care was appropriate (and legal) for women.
The implementation of the TAC system in Canadian hospitals was hugely controversial. The controversy mostly centered on the ambiguity surrounding the terms “life” and “health” in the new law. Interpreted conservatively, “life” and “health” largely limited abortion access, while more sympathetic readings liberalized access. Also, because only accredited hospitals – those with TACs in place – were permitted to offer abortion services, abortion access was often irregular and unevenly distributed across the country.
3. The Morgentaler Era
By the 1970s and 1980s, the women’s movement had grown considerably, sparked in part by the 1969 abortion reform, and abortion became a defining issue of the Canadian women’s movement. Physicians have also continued to be crucial to abortion politics in Canada, notably, Henry Morgentaler. Morgentaler was a a physician and pro-choice advocate who fought many legal battles aimed at expanding abortion rights and care in Canada. He was a Holocaust survivor who immigrated from Poland to Canada after WWII, and a physician who performed abortion throughout the country in violation of Canada’s abortion law of the time. He opened his first clinic in Montreal in 1969, and was charged 4 times with “intent to perform an abortion” but was acquitted by juries all four times. In an unprecedented move, however, the Quebec Court of Appeal overturned the jury’s decision and Morgentaler would spend over a year in prison. Morgentaler’s battle to legalize abortion would take him to the Supreme Court twice, first in 1975 and again in 1988. In 1988, Morgentaler’s case brought a Charter challenge to the Supreme Court of Canada.
The main issue put forth before the Supreme Court in R. v. Morgentaler was whether or not Section 251 (the TAC system) infringed in an unjustified way on a pregnant woman’s right to “life, liberty and security of the person” guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court ruled that Section 251 did, in fact, “infringe on a woman’s right to security by limiting her effective and timely access to medical services when her life or health was endangered” and directed the issue to Parliament.
In the late 1980s, Brian Mulroney’s Conservative government found itself in a situation where Section 251 had been struck down as unconstitutional, the Supreme Court refused to rule on anything to do with fetal life, and there was no legal regulation of abortion in Canada. On May 29, 1990, Bill C-43 passed through the House of Commons by nine votes (140-131). Bill C-43 would criminalize doctors who performed abortions when a woman’s health was not at risk. Although the bill needed approval from the Canadian Senate in order to be enacted into law, the passage of the bill through the House of Commons had immediate effects. Doctors, unsure of how the new law would impact them as individuals, withdrew abortion services. Hospitals across the country began turning women seeking abortion services away. It soon became evident that Canadian doctors were scared of the unclear implementation of Bill C-43. After two months of Senate hearings, the Canadian Senate held a free vote on January 31, 1991. Shockingly the result was a 43-43 tie, the first tie in the history of the Senate in Canada. A tie in the Canadian Senate means that the bill is defeated, making Bill C-43 the first government bill defeated in the upper chamber in over thirty years. Bill C-43 would be the last abortion bill tabled by a government in Parliament to date.
Today, Canada is one of three countries that has no law regulating abortion. Abortion care is managed by the medical community, like all other medical procedures. It is funded (for most people) by Canadian healthcare, and is relatively accessible. That is not to say that abortion access is equally available to everyone or that there is no contestation around abortion. There is, for example, a rural/urban divide in women’s ability to access abortion care, and some provinces have lagged behind others in providing abortion care. Until recently, for instance, abortion care was unavailable on Prince Edward Island and abortion care continues to be unfunded in New Brunswick outside of three hospitals. Moreover, there is no universal provincial agreement concerning abortion, which affects students attending college or university outside of their home province. Additionally, there is continued stigma around accessing abortion. That being said, there has been no significant backsliding of abortion rights in the Canadian context, unlike in the U.S. That does not mean abortion is not an important issue for Canadians, as continued activism is happening on both sides of the debate.
From Reproductive Rights to Reproductive Justice
While the right to birth control and abortion have been central to white, middle class, heterosexual, able-bodied and able-minded feminist movements for reproductive rights, an intersectional feminism highlights that for many groups – women of colour, poor women, queer folks, and people with disabilities – the rights to have children and to raise the children they have are equally pressing issues. These groups have experienced eugenic barriers to parenthood including involuntary sterilization and state seizure of their children as often as they have experienced unwanted pregnancy, and an intersectional feminist political movement for reproductive justice addresses these concerns as well as the right to birth control and abortion.
An example of how an intersectional perspective complicates reproductive justice is that while feminists fought for the legalization of and right to birth control, the decriminalization of birth control in 1968 in Canada made it easier for doctors to sterilize people they deemed eugenically unfit without their consent. In Canada, Indigenous women continue to be sterilized against their wills, and while only 7.7% of children under 14 in Canada are Indigenous, over half of children in the Canadian foster care system are Indigenous. Although intersectional feminists situate the feminist struggle for birth control and abortion rights within a larger framework of reproductive justice, they also shine a light on the ways that racial and socioeconomic oppression make access to birth control and abortion particularly difficult for certain people. White women with socioeconomic means have always had access to birth control and abortion, legal or otherwise, while these have been and continue to be relatively inaccessible to poor women and women of colour.
As an example, we can consider the differential impacts of the U.S. Supreme Court 2022 overturning Roe v. Wade. With abortion now illegal in many U.S. states, women who wish to terminate pregnancies may need to travel to another state to do so, and this is easier for women with economic means than for poor women who are disproportionately racialized. Women of colour in the United States are thus more likely than white women to be forced to undergo an unwanted pregnancy and birth, and this has many repercussions. For instance, because women of colour in the U.S. are more likely to lack health care and to face discrimination in the health care system, they are three times more likely than white women to die of pregnancy-related issues and are also far more likely to die during birth than white women. Women who are unable to access abortion because they do not have the financial means to travel out of state will almost inevitably be made poorer by the birth of a(nother) child, particularly since the U.S. is a country without paid parental leave and where daycare often costs more than college. For these reasons, the Supreme Court’s overturning of Roe v. Wade was not only sexist but racist.
According to Sister Song Women of Color Reproductive Justice Collective, which is one of the first organizations founded to build a reproductive justice movement, the term reproductive justice refers to “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” Reproductive justice is different from the reproductive rights movements of the 1970s as it moves beyond pro-choice versus pro-life debates that have dominated white feminism and acknowledges intersecting factors such as race and class that impact marginalized groups’ relationship to reproduction differently. In particular, women with low incomes, women of color, women with disabilities, and LGBTQIA2S people do not always have the freedom to choose what they want to do as far as reproduction is concerned and their options are sometimes limited by oppressive circumstances or lack of access to services. Moreover, for these groups, sometimes the right to have and to raise children has been as important as the right not to have children or to limit the number of children that they have.
While the overturning of Roe v. Wade in the U.S. and its particularly acute implications for poor women and women of colour underscores the importance for feminist movements of defending women’s legal rights to abortion care, the assigned reading for this module, Karen Stote’s “Decolonizing Feminism,” builds on the work of women of colour feminists to argue that reproductive rights is but a small part of reproductive justice. Focusing on the experiences of Indigenous women, Stote explores what an intersectional approach to reproductive justice looks like in the settler colonial context of Canada. Ultimately, Stote argues that reproductive justice cannot be a single issue cause, and must be part of a larger movement for decolonization. This part of the module segues into the next and final module for this course, on Indigenous Sexualities.