January 28, 2013: The 25th anniversary of the decriminalization of abortion in Quebec.
By: The Fédération du Québec pour le planning des naissances (FQPN), www.fqpn.qc.ca
Background…
The first Canadian criminal law on abortion was passed in 1869. It provided for a penalty of life imprisonment for the person procuring the miscarriage. Nineteenth century abortions were medically dangerous and, in a less regulated society with little concept of health care programs, often performed by non-physicians. In 1966, 45,000 women[1] were hospitalized after having tried to terminate a pregnancy, making it the primary cause of hospitalization for Canadian women that year. The 1960s brought a new social climate and the evolution of people’s attitudes in Quebec, including the secularization of Quebec society and the growing visibility of the feminist movement. These changes as well as several medical scandals related to clandestine abortions caused medical, legal and religious organizations to demand changes to the Criminal Code.
Faced with this reality, in 1969 Parliament passed The Criminal Law Amendment Act, 1968-69, an omnibus bill that introduced major changes to the Criminal Code of Canada. It was introduced as Bill C-150 by then Minister of Justice Pierre Trudeau. It proposed, among other things, to decriminalize homosexuality and allow abortion and contraception[2]. When it was passed, Bill C-150 amended the Criminal Code in a number of important respects, including Section 251 which specified when an abortion could be legally performed. It remained an offence to procure the miscarriage of a pregnant female, but now the criminal sanctions against abortion would not apply to a doctor performing an abortion or a female obtaining one if the abortion had been previously approved by a therapeutic abortion committee and carried out in an approved hospital. Outside of these circumstances, however, abortion remained in the criminal code as a criminal offense and subject to the Criminal Code sanctions.
Across the country, women began to rally to demand the right to access safe abortion on demand, free of charge. In 1970, the Vancouver Women’s Caucus, a group of independent feminists, organized political opposition to Section 251. The Caucus organized the Abortion Caravan, the first national feminist protest. Women travelled over 3,000 miles from Vancouver to Ottawa, gathering numbers as they went. In Ottawa, the 500 women strong Abortion Caravan, held two days of demonstrations, with thirty women chaining themselves to the parliamentary gallery in the House of Commons, closing Parliament for the first time in Canadian history. [3]
In Quebec…
Despite the new legislation, access to abortion in Quebec remained very difficult. In 1970, 181 therapeutic abortions were performed, of which only one took place in a francophone hospital[4]. The large majority of abortions were performed in anglophone hospitals for several years.
Dr. Morgentaler began protesting Canada’s restrictive laws, and founded The Montreal Morgentaler clinic in 1968. Even with the amendments to the Criminal Code, the abortions performed by Dr. Morgentaler remained illegal because he did not first submit his cases to an approved therapeutic committee or carry them out in an approved hospital. In 1970 Dr. Morgentaler’s Montreal clinic was raided by police and he was charged with performing illegal abortions, eventually being sentenced to 18 months in jail in 1974 and serving 10 months at Montreal’s Bordeaux jail after his appeal to the Supreme Court of Canada was dismissed. This marked the beginning of Dr. Morgentaler’s long legal and judicial battle which eventually lead to the decriminalization of abortion in 1988.
At the same time in the late 1960s, Quebec saw a profound social and cultural shift in society with the emergence of a new women’s movement. The Montréal Women’s Liberation Movement was founded in 1969, the Front de libération des femmes du Québec published a feminist manifesto in 1970 and gathered at Parc Lafontaine in their own abortion caravan, and the Centre des femmes edited the first French-language radical feminist periodical, Québécoises deboutte! (1971-75). At first, some were consciousness-raising groups, but others quickly turned to concrete action, providing abortion services, health centres, feminist magazines, militant theatre, day-care, shelters for battered women and rape crisis centres, and organizing for equal pay[5].
Thousands of men and women in Quebec mobilized to fight for sexual and reproductive rights. In 1972, 15,000 signatures were presented to Quebec Parliament to demand the removal of laws restricting abortion[6].
In 1976, the Parti québécois (PQ) was elected for the first time. New to the Quebec political scene, the party brought about some progress in terms of social rights. During his first year in office, the new Minister of Justice granted immunity to doctors who were qualified to practice abortion. Thus, in Quebec, the legal proceedings were over: Morgentaler and other physicians who performed abortions without the consent of a Therapeutic Abortion Committee and outside of hospitals could no longer be sued. The early 1970s were also marked by the creation of groups that provided family planning information and services. In 1972, the Fédération du Québec pour le planning des naissances (FQPN) was established. At this time, the primary objective of the FQPN was to implement planning associations in all regions of Quebec to compensate for the lack of government services. The FQPN supplied information and training, in addition to carrying out political actions and lobbying the government to promote access to quality information about family planning and to emphasize freedom of choice[7]. This meant that by the end of the 1970s, each region of Quebec had a clinic and an access point for abortion services, despite this being illegal under Federal codes.
Decriminalization and its impacts…
Legislative changed occurred much later, further to charges laid against Dr. Morgentaler and two colleagues in 1983 after he opened an abortion clinic in Toronto, Ontario. The defence filed a motion challenging the constitutionality of s. 251 of the Criminal Code. Dr. Morgentaler and his colleagues were acquitted in 1984, but the Ontario Court of Appeals set aside the acquittal and ordered a new trial. Dr. Morgentaler appealed to the Supreme Court of Canada and in 1988, the Supreme Court of Canada struck down Canada’s abortion law, ruling that it conflicted with rights guaranteed in the Charter of Rights and Freedoms because it infringed upon a women’s right to “life, liberty and security of the person”. It was now recognized that the physical and emotional integrity of women was contingent on their right to control their bodies, and therefore, the right to choose abortion. The decision came approximately 20 years after Dr. Morgentaler first performed an abortion. Abortion became like any other procedure, governed by the Canada Health Act.
In Quebec, this news was greeted with a celebration held the day after the decision, January 29, 1988. There, feminists emphasized the importance of continuing the struggle, noting that the decriminalization of abortion did not lead to the end of anti-abortion pressure, and in fact, since 1988, there have been more than 45 motions or Bills introduced to limit or prohibit access to abortion.
A question of access…
The 1988 Supreme Court Ruling did not enshrine the right of a woman to have access to abortion. Prince Edward Island does not have a single abortion clinic, and certain provinces have clinics only in major cities, making access difficult or impossible for those in rural areas.
In the early 1990s a study was conducted in Quebec determine the availability of abortion services. Released in 1992, the study found that abortions were offered in 46 institutions in the province: 27 hospitals, 12 CLSCs, 4 private clinics, and 3 centres de santé des femmes. Regional disparity was also a major issue, with three regions still without access to abortion. In five other regions, only a single service delivery point existed. The study also recommended that improvements be made to public information, awareness, and training in sex education and family planning. The writers also demanded the introduction of abortion services in all regions of Quebec and added that all of the services should be provided for free[8].
During the same period, the Corporation professionnelle des médecins du Québec published L’avortement: elements d’unexercice de qualité. The first of its kind by a Canadian medical association, it dealt with the abortion issue from a purely medical perspective. The Corporation focused on ensuring the quality of abortion services offered, and identified obstacles impeding the accessibility of services, such as the small number of physicians who performed abortions and regional disparities..
In2006, the Association pour l’accès à l’avortement, established to defend free access to abortion services, filed a class action lawsuit against the government of Quebec to reimburse women who had paid for an abortion from 1999 to 2005. At that time, 44% of abortions in Montreal were performed by private clinics that charged fees ranging from $40 to $350. Therefore, in 2006, women in the Greater Montreal Area and surrounding areas who could afford to pay for an abortion benefitted from a two-tier system. The Association pour l’accès à l’avortement argued that this contradicted the principles of universal access. The Association won. In her ruling, Judge Bénard sentenced the government of Quebec to reimburse women who incurred costs for abortions in private clinics or at the CSFM between May 2, 1999 and February 22, 2006. She noted that in addition to having to reimburse women for a total of $13 million, the government should not circumvent its own law and should provide free services. In 2008 women were finally guaranteed free abortion services, regardless of where their abortion was obtained.
A pro-choice majority in Quebec…
In Quebec, an increasing majority of the population is in favour of the right to a legal abortion and in 2010, in a concerted broadside against Ottawa, Quebec legislators unanimously challenged the Harper government’s stance on abortion and asserted women’s right to choose. The Quebec National Assembly adopted an all-party motion urging the federal government to end its “ambiguity” on abortion, with Premier Jean Charest saying that “Abortion is an inalienable right and the consensus expressed in the National Assembly reflects the consensus on this issue in Quebec society. [Quebec’s]National Assembly reaffirms the right of women to free choice and to free and accessible abortion services, and asks the federal government and the Prime Minister of Canada to put an end to the current ambiguity on this issue, and that the National Assembly reaffirms that the fact of supporting women’s right to an abortion should not in any case be used by the federal government to cut funding to a women’s group.”
Whenever that “inalienable right” is attacked, Quebecois women and men move to the streets by the thousands to protest, as witnessed in the case of Chantal Daigle[9] in 1989, the 1995 Human Life International conference, and 2008 the fight against Bill C-484[10]. And what makes the mobilization so swift and vocal? Certainly the answer lies partially in the strength and solidarity of the women’s movement, which has continued the fight for women’s rights for more than 40 years.
But…
The picture is not always rosy. In Quebec, as elsewhere in Canada, a vocal anti-choice opposition continues to be present, holding frequent conferences and “pro-life” vigils. At least thirty fake “pregnancy care centres” continue to operate around the province with the stated goal of dissuading women from obtaining an abortion.
Furthermore, access to abortion services continues to be difficult for those who are not Canadian citizens, or who are physically challenged.
Although we celebrate 25 years of decriminalization today, we must not forget that freedom of choice is a hard-won privilege. We must remember that many women still have few or no options due to their economic status, their geographical region, their physical handicap, or their residency status. Despite all of the work done to promote sexual and reproductive health and defend women’s rights, today, certain groups continue to be disenfranchised. In Quebec, as in the rest of Canada, there is still much to accomplish in terms of social justice. We must stay vigilant: while sexual, reproductive and maternal rights continue to be challenged, the fight to control our bodies has not yet been won.
[1] Canadians for Choice and Fédération du Québec pour la planning des naissance. “Focus on Abortion Services in Quebec”. Bibliothèque et Archives nationals du Québec, 2010. ISBN: 978-2-9810623-8-3(electronic version)
[2] Mollie Dunsmuir. “ABORTION: CONSTITUTIONAL AND LEGAL DEVELOPMENTS”. Prepared for the Government of Canada, Law and Government Division. Reviewed 18 August 1998. Retrieved from: http://publications.gc.ca/collections/Collection-R/LoPBdP/CIR/8910-e.htm
[3] Hackcanada.com. “A history of Abortion in Canada”. Retrieved from http://www.hackcanada.com/canadian/freedom/aborthistory.html
[4] Canadians for Choice and Fédération du Québec pour la planning des naissance. “Focus on Abortion Services in Quebec”. Bibliothèque et Archives nationals du Québec, 2010. ISBN: 978-2-9810623-8-3(electronic version)
[5] Canadians for Choice and Fédération du Québec pour la planning des naissance. “Focus on Abortion Services in Quebec”. Bibliothèque et Archives nationals du Québec, 2010. ISBN: 978-2-9810623-8-3(electronic version)
[6] Ingrid Vahali, “Abortion increases 500 percent in Canada, government apathetic to need for reform”, The Gazette, March 5, 1972.
[7] Canadians for Choice and Fédération du Québec pour la planning des naissance. “Focus on Abortion Services in Quebec”. Bibliothèque et Archives nationals du Québec, 2010. ISBN: 978-2-9810623-8-3(electronic version)
[8] Canadians for Choice and Fédération du Québec pour la planning des naissance. “Focus on Abortion Services in Quebec”. Bibliothèque et Archives nationals du Québec, 2010. ISBN: 978-2-9810623-8-3(electronic version)
[9] Chantale Daigle was a pregnant woman who decided to leave her abusive partner, Jean-Guy Tremblay. The latter obtained, as a result of litigation, an injunction preventing his ex-girlfriend from obtaining an abortion in the name of the supposed “right to life of the foetus” and “father’s rights” over his offspring. On July 27,1989, more than 10,000 people gathered in the streets of Montreal to show their support for Chantale Daigle. She would gain appeal from the Supreme Court of Canada, but did not wait for the verdict to act. Twenty-one weeks pregnant, she chose to defy the law and to appeal to the CSFM for help in organizing her abortion in the United States.
[10] A private member’s bill called The “Unborn Victims of Crime Act”, Bill C-484 sought to amend the Criminal Code to allow separate homicide charges to be laid in the death of a fetus when a pregnant woman was attacked. It would have been a key step towards re-criminalizing abortion, and could also have criminalized pregnant women for behaviours perceived to harm their fetuses.
