In 1969, Parliament effectively introduced abortion-on-demand in Canada when it amended the Criminal Code to permit abortions when a hospital’s therapeutic abortion committee (TAC) deemed it necessary for the health of the mother to have one; by definition, free-standing abortion facilities that did not have these TACs were illegal. TACs were to take into account the health of the mother, but the definition of health was so broad it included emotion and psychological consideration, and any distress the mother reported would qualify a request for abortion as permissible under the law. Critics called the TACs rubber-stamp committees and the number of abortions carried out every year increased steadily until by the 1980s, more than 100,000 unborn babies were being killed annually.
In the 1970s and early 1980s, abortionists such as Henry Morgentaler would occasionally be charged with running an illegal abortion mill, but were generally allowed to operate (Morgentaler was sentenced to an 18-month sentence in 1975 for doing illegal abortions but the verdict was later set aside by the federal justice minister). Despite losing a pre-Charter challenge in which the Supreme Court said it did not have jurisdiction to overrule Parliament – Morgentaler v. the Queen (1976) – the Montreal-based abortionist challenged the law again after the Charter was adopted in 1982. Morgentaler claimed it violated a woman’s right to security of the person as guaranteed under Section 7 of the Charter of Rights and Freedoms. On Jan. 28, 1988, in a 5-2 decision, the Supreme Court of Canada struck down the abortion law. The majority was divided into three majority decisions, and only one of them, Justice Bertha Wilson’s (alone), found any right to abortion. Justice Wilson was hardly unbiased; she helped draft the United Church of Canada’s pro-abortion policy in 1966, yet even she acknowledged Section 1 of the Charter “authorized reasonable limits” on abortion if Parliament so chose.
Justice Brian Dickson, joined by Justice Antonio Lamar, and Justice Jean Beetz, joined by Justice Willard Estey, both said the 1969 law violated a woman’s security of the person protections in the Charter. By requiring abortion-minded women to get the permission of a committee, the law placed an undue burden on them to control their own bodies, the justices said. Justices Beetz and Estey had concerns about equal access to abortion, noting that the TACs were not administered uniformly across the country. Still, the justices acknowledged abortion limits could be imposed by Parliament in Dickson’s words, “in accordance with the principles of fundamental justice.”
Justices William McIntyre and Gerard La Forest disagreed with their colleagues, saying that nothing in the “language, structure or history of the constitutional text,” supported wide-open abortion and confirmed that there “has always been a clear recognition of a public interest in the protection of the unborn.”
Jim Hughes, national president of Campaign Life Coalition, was quoted in the Canadian Press at the time calling the day Black Thursday. Pro-life activists assumed that they could work within the democratic system to help pass a new pro-life law, but were concerned about the toll in human lives that the state of lawlessness would cost. In the absence of a law, Canada tolerates abortion as permissible and it is widely available in hospitals, abortion facilities, and even private doctor’s offices. The number of abortions done every year grew to 115,000 before official statistics became unreliable in the past decade and the numbers appeared to decline.
The pro-life movement took the battle to Parliament, where among the numerous proposals, Brian Mulroney’s government sought to pass a law similar to the 1969 one thrown out by the Supreme Court which would have permitted abortion in most cases including under a broad physical and emotional health exception. The Mulroney bill was defeated in 1991 on a tie vote in the Senate.
Since 1988, courts dealing with fetal rights have used Morgentaler to deny the unborn child any legal protections. In 2012, MP Stephen Woodworth attempted to rectify the total denial of legal protection to the unborn by having the Criminal Code definition of human being examined. His motion was defeated last September.
Campaign Life Coalition condemned the legal void created by Parliament’s failure to enact a new law after Morgentaler. In a press release last month, Jim Hughes said, “as a global leader in human rights, it’s a disgrace that for the last 25 years, this country’s government has neglected to put an end to the greatest human rights violation of our time, the killing of children before birth.”
An estimated 2.5 million unborn children have been killed by abortion since January 1988.
