The Fervour of the Righteous

"They did not, on balance, view the judgement as a victory. Rather, there was a sense of relief that the most restrictive elements of the law had been struck down. The practical concern was that there was no legal definition of the time frame in which an abortion could be performed."
Barbara McDougall, Minister for the Status of Women, 1988

A little shudder would most certainly go through the apprehensions of most women in Canada at the recent revelations -- thanks to the public release of confidential government documents outlining discussions in the cabinet of then-Prime Minister Brian Mulroney, through Access to Information -- that the fundamentalist religious members of his caucus and cabinet would have, if they could, enacted legislation to firmly criminalize abortion.

There were those religiously sanctimonious members of cabinet who felt that punishment in long prison terms was earned by women or/and their doctors who helped them terminate a pregnancy. A draft resolution that came to light had the intention of banning the abortion of malformed fetuses. Another that the claim of stress caused by an unwanted pregnancy not be considered a danger to health, nor should social and economic considerations of an unwanted pregnancy be considered reason to abort.

Bill C-43 passed the House of Commons, but found defeat in the Senate where a split vote negated the bill on January 31, 1991. Bill C-43 made it a criminal offence to induce a woman to abortion at any stage, the exception being that it be performed by or under the direction of a doctor whose professional opinion it was that the woman's life or health was threatened by a full-term pregnancy and delivery.

The penalty for violating those terms would be two years' imprisonment. A relaxation of the originally proposed ten years' penalty, alternately watered down to five years in prison for illegal termination of a pregnancy. Leading the punishment crew was then-Health minister Jake Epp, a Mennonite Christian hailing from Steinbach, Manitoba. He declared life began at the moment of conception.

Opposing him was the sole woman in cabinet's 20-member priorities and planning committee, Barbara McDougall, minister for the status of women, who argued for free choice for Canadian women. One woman, representing fifty percent of the Canadian population, against a hugely opposed majority representing the other half.

In January of 1988 the Supreme Court of Canada tossed Canada's abortion law, ruling Section 251 of the Criminal Code was in violation of the Charter of Rights, denying women "security of the person." They held that a woman's right to an abortion, particularly in late pregnancy, could be subject to reasonable limits to protect the unborn or the woman's life or health, and it wanted Parliament to resolve the issue and come up with a formula.

In the interim, there was a legal void. Canada had no abortion law. Cabinet debate followed, with an ad-hoc cabinet committee advising ministers to bypass extreme restrictions that would have the effect of risking a backlash whereby "the government would look like fools if it passed a law that was subsequently thrown out by the Supreme Court."

Two approaches were considered; access to abortion freely early in pregnancy and becoming more restricted with the development of the fetus. The other approach would recognize the same restrictions throughout pregnancy, and Mr. Epp again argued life began at conception, and dividing lines between stages would be "arbitrary"; no free choice whatever at any stage would be more suitable to the seriousness of the issue.

The special committee struck to advise cabinet issued a report favouring a law permitting early stage abortion, up to between 12 and 28 weeks, and from then forward only if the mother's life might be seen to be in peril. "The implications of such an approach were frightening should a similar approach be taken for the elderly or the disabled", said an objecting Mr. Epp.

Another draft resolution was meant to "exclude physical or mental abnormalities of the unborn child as a reason for obtaining an abortion." According to the minutes of the debate: "The debate was too wrenching and divisive to be allowed to continue much longer". To his credit the minutes also stated that the Prime Minister "was concerned that the government's approach be in tune with a modern society, and avoid steering too far to the right".

And so, those sentiments prevailed by default, when the Senate rendered its negative vote and the bill that would have given Canada a law on abortion and its restrictions failed.