OTTAWA – It’s been 25 years to the day since the Supreme Court of Canada ruled that criminalizing abortion violated a woman’s charter rights.
In many ways, it feels like it was just yesterday.
The question, which pits the rights of a woman against those of her unborn child, is as polarizing as it was in 1988, when five of the seven high court judges involved declared Canada’s Criminal Code provisions restricting access to abortion a violation of the Charter of Rights and Freedoms.
Abortion rights advocates across the country are planning modest celebrations to mark today’s anniversary. On the other hand, those long opposed to the decision known as R. vs. Morgentaler consider it a sombre occasion — one that reaffirms their resolve to one day see the ruling overturned.
The two sides can agree on one thing, though: even a quarter-century later, the issue of abortion has never really gone away.
The case was brought by controversial Toronto doctor Henry Morgentaler, who had been providing abortion services to women since the 1960s, and constantly running afoul of the law as a result. In 1983, a year after the Charter of Rights came into being, he and three colleagues opened an abortion clinic in Toronto and were promptly arrested.
At the time, the only way a woman could have an abortion was in hospital and after the approval of a committee of doctors. Not fair, the Supreme Court said.
“Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person,” wrote Chief Justice Brian Dickson and Justice Antonio Lamer in their opinion.
The Progressive Conservative government of the day tried to pass new laws after the court’s decision, but none made it through Parliament. To this day, there exists no enforceable legislation in Canada on the issue.
“We’re the only democratic country in the world that has no abortion laws or restrictions against abortion and it’s been 25 years since we’ve had no law,” said Joyce Arthur, executive director of the Abortion Rights Coalition of Canada.
“Going 25 years without a law, without having the sky fall in, is proof we don’t need a law.”
Since the decision, more than 30 abortion clinics have opened across the country, expanding access significantly, although some barriers remain for women living in rural areas or the North.
The Canadian Institute for Health Information says at least 64,000 abortions were performed in Canada in 2010, the most recent year for which information is available.
For the Campaign for Life Coalition, those numbers mean the anniversary is no time to celebrate.
“It’s an opportunity to be ashamed of where we are in our country,” said Mary Ellen Douglas, a national organizer with the group.
Douglas, an anti-abortion activist for more than 40 years, said while new technologies have made getting the message out easier, the ultimate goal — overturning the high court ruling — has never changed. Reaching it remains simply a matter of time and political will.
“We work to find people to run for the government, as well as to support them and get them elected, and hopefully, eventually we will have a law that will protect all human life from the moment of conception,” Douglas said.
There have been attempts since the Supreme Court decision to put the issue back on the political and legal agenda, most recently a motion that was debated this fall in the House of Commons.
Conservative backbench MP Stephen Woodworth’s motion called for a committee that would explore the question of when life begins, in the context of its definition within the Criminal Code.
Arthur said she feared the worst.
“We had a lot of fears when the Conservatives came into power that this would be the start of of their so-called hidden agenda and they would start passing restrictions against abortion or policies,” she said.
But Prime Minister Stephen Harper took a stand against the motion, making it clear his government had no intention of re-opening the debate. Woodworth’s motion went down to defeat.
“I think the thing is that Harper is pragmatic,” Arthur said. “He knows that abortion politically is a losing issue.”
Anti-abortion advocates, meanwhile, were gratified to see Woodworth’s motion come up for debate. Douglas, for one, laments that Canadians in general seem terrified at the prospect of confronting one of humanity’s most vexing questions.
“It seems really strange that in a country like Canada we should put our head in the sand with something going on on any issue and not bother to find out about it.”