The Canadian Press obtained 20-year-old cabinet meeting minutes on the Mulroney abortion bill, C-43. The 83 pages of documents reveal a cabinet split into various factions on how to best deal with the aftermath of the Morgentaler decision, which sent the abortion issue back to Parliament if it chose to deal with it. The recently declassified documents were obtained by CP through the Access to Information Act and for the first time they provide a window into the cabinet debate and the evolution of a deeply flawed piece of legislation.
Prime minister Brian Mulroney appointed senator Lowell Murray, a Red Tory, to chair the Ad Hoc Committee on Abortion, made up of some 20 cabinet members, to examine what sort of abortion law the government would put forth. Several cabinet members, including health minister Jake Epp and fisheries minister Tom Siddon, argued for a law that focused on protecting the unborn child. The minutes also reveal that unnamed caucus members were urging the government to invoke the notwithstanding clause of the Charter of Rights to over-ride the Morgentaler decision.
Despite interest in meaningful protections for the unborn, Murray set up the debate to practically eliminate any such legislation, ruling out a blanket ban in favour of promoting a debate focused on two compromises: a trimester approach which placed no restrictions on abortion during the first trimester with new limitations placed on each successive trimester, and a “two-stage approach” which would permit abortion-on-demand during the first 12, 24, or 28 weeks followed by a ban with a health-of-the-mother exemption. This compromise pleased few members of the cabinet, with pro-lifers displeased at the lack of consideration given the unborn child and feminists such Barbara McDougall, minister of state for the status of women, decrying any limits on the abortion procedure. Epp also criticized the two-stage and trimester approach as “arbitrary” and initially insisted that the focus be on the “preservation and dignity of human life.”
According to a chart from a March 1988 meeting outlining the alternatives being considered, it was acknowledged that a trimester or two-stage limit “would be opposed by pro-life supporters as abortion-on-demand.” Murray later acknowledged that pro-life members of the committee could not countenance the notion that “life was staged” with life more valuable “at one point than another,” which intellectually underpinned the gestational approach to limiting abortion. The chart also clearly stated that health of the mother at any point in pregnancy included physical, social, and economic well-being.
What is not clear is why, on March 15, 1988, Murray declared the committee in favour of the two-stage approach to restricting abortion. There was no vote nor was there any consensus; it seemed to be a compromise to end the debate within the government and the one most likely to be accepted by the full cabinet and caucus. In short, politics, not principles or best policy, was the determining factor in the committee’s proposal of a compromise. The majority position of the committee was that 1) there should be some recognition that the unborn child was a human being with dignity that could be protected in law, 2) that women had a right to obtain an abortion, and 3) that there would be some criminal sanction for violating the law. There was no acknowledgement on the inherent contradictions of these three goals. Ultimately, the government would propose a law to “prohibit the performance of an abortion” except when “two qualified medical professionals” agreed it was in the best interests of the (broadly defined) health of the mother. It initially proposed a 10 year prison term for carrying out an illegal abortion, but that was later shortened to five and eventually two years.
When the bill was made public after the Progressive Conservatives were re-elected in 1988, Canada’s leading pro-life organizations – Campaign Life Coalition, Alliance for Life Canada, and REAL Women – were united against C-43, insisting that its exceptions and loopholes rendered it completely useless in protecting unborn children from abortion. While a tiny minority of pro-lifers complained those concerns were misplaced, a letter from justice minister Kim Campbell to abortionists in October 1990 proved their criticisms were accurate. Campbell told abortionists that they had “no need to fear” the supposedly restrictive abortion law because it had been worded in order that it would not prevent abortion and to protect medical professionals who committed them. “The legislation is designed to protect a doctor from being convicted under the new law (and) protect nurses and other medical staff acting under the doctor’s direction,” Campbell wrote. She insisted abortionists were protected under the proposed law because it legally recognized abortion as a “lawful medical procedure.” She also clarified the broad definition of “woman’s health” to include factors such as “rape, incest, genetic defects and socio-economic factors … social factors and personal aspirations could be considered in relation to a determination of health.” In other words, any reason a woman would want an abortion would justify procuring one under Bill C-43.
The media acknowledged the complete lack of protection for the unborn in C-43. A November 1989 Montreal Gazette editorial stated, “the government has wholly ducked the rights of the fetus. The law does not even refer to fetal rights.” Meanwhile an editorial in the Globe and Mail stated, “access to abortion will be easier and quicker under this Bill.”
Despite the fact that both pro-life and pro-abortion groups aligned against C-43, it passed in the House of Commons by a 140-131 vote in May 1990. Due to the heroic efforts of senator Stanley Haidasz, including forcing the senate’s justice committee to hear testimony from the pro-life groups that were being shut out of the hearings, it was defeated in the Senate on a 43-43 tie vote on Jan. 31, 1991.
The Interim recognizes now as it did then that human life is a continuum, and is not measured in weeks, months, trimesters, inches, or pounds; that a human being exists from the time of conception/fertilization, has dignity and is sacred; that every abortion kills a human being and can never be justified. We also find politically motivated compromise that creates arbitrary demarcations to protect some human lives but not others to be abhorrent, adding the insult of age discrimination to the injury of death by abortion. The answer to the frustrating question of abortion is to stop all the killing and to do that requires nothing less than a pro-life majority in Parliament. Protecting preborn life requires political action, not political compromise. Become involved. Get active. Elect pro-life candidates. It is hard work, but the prize is worth it.