Abortion In Canada: Criminal Law, Constitutional Law & Key Court Decisions

1. Abortion In Canada:Criminal Law, Constitutional Law& Key Court Decisions Rels 300 / Nurs 330 13 March 2014

2. ABORTION LAWS • Up to 19th century, no laws or regulations concerning abortion - not a medical procedure • prenatal care and birth attendance by midwives • earliest regulations enacted to protect women from non-medical abortionists who caused deaths, sterility, infections, etc. • 1920 - Soviet Union - 1st country to legalize and regulate abortion 300/330 - appleby

3. CANADIAN LAW Late 19th century – contraception and abortion both became criminal offences according to the 1892 Criminal Code of Canada In 1969 - Criminal Code was amended • Contraception removed from the Criminal Code – no longer a criminal offence • Abortion still a criminal offence, but allowed under specific conditions What sorts of conditions? 300/330 - appleby

4. What does the Criminal Code say about abortion in these 2 Sections? Section 287 (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life. (2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. 300/330 - appleby

5. (4) Subsections (1) and (2) do not apply to (a) a qualified medical practitioner… who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or (b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage, • if, before the use of those means, the therapeutic abortion committee…by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed, (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health 300/330 - appleby

6. Section 288 • Every one who unlawfully supplies or procures a drug or other noxious thing or an instrument or thing, knowing that it is intended to be used or employed to procure the miscarriage of a female person, whether or not she is pregnant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. 300/330 - appleby

7. 1969: ANTI-ABORTION RESPONSE Those who opposed decriminalization of abortion were not satisfied: • The law was too liberal • Access to legal abortions was not restricted enough • The only exceptions should be to save physical life of pregnant woman • The range of exceptions based on dangers to health were too broad • Many worried that health would be construed as not only including mental health, but economic and social factors as well 300/330 - appleby

8. 1969: RESPONSES OF ABORTION SUPPORTERS Those who supported the decriminalization of abortion were not satisfied: • The law was still too restrictive • Women were still dependent on the opinion of their doctors • Access to abortion services required the approval of hospital abortion committees and their support of a woman’s decision to end a pregnancy • Hospitals were not required to provide abortion services; many had no physicians who would do abortions, and no abortion committees • No government funding for abortions performed in health clinics • Some provinces offered no abortion services 300/330 - appleby

9. The Badgley Committee In 1975 a Committee on the Operation of the Abortion Law was appointed "to conduct a study to determine whether the procedure provided in the Criminal Code for obtaining therapeutic abortions [was] operating equitably across Canada" and to make recommendations "on the operation of this law rather than recommendations on the underlying policy.” • (http://www.publications.gc.ca/Collection-R/LoPBdP/CIR/8910-e.htm#D.%20The%20Badgley) 300/330 - appleby

10. Findings of the Badgley report Sharp regional disparities …meant the Criminal Code procedure for obtaining a legal therapeutic abortion was in practice illusory for many Canadian women. There was much concern among physicians about the definition of health, and little uniformity as to how the concept was interpreted.  The age at which a young, unmarried female is deemed capable of giving consent to medical care and treatment is within provincial jurisdiction, and the Committee found that uncertainties in provincial laws had been allowed to affect the hospitals' consent requirements for carrying out abortions. Although there was no known legal requirement for the consent of the father to a therapeutic abortion, more than two-thirds of the hospitals it surveyed which carried out abortions required the consent of the husband. 300/330 - appleby

11. Understanding Canada’s Systemof Law and Justice Canada’s System of Justice • http://www.justice.gc.ca/eng/dept-min/pub/just/img/courten.pdf • Particularly relevant sections: • The Canadian Constitution – pages 8 to 10 • Rights and Freedoms in Canada – pages 11 to 15 • The Court System – pages 16 to 18 • The Criminal Code – pages 21 to 24 300/330 - appleby

12. http://www.418qe.com/wp-content/uploads/2012/04/Charter-of-rights-and-freedoms.jpghttp://www.418qe.com/wp-content/uploads/2012/04/Charter-of-rights-and-freedoms.jpg 300/330 - appleby

13. Canadian Charter of Rights & Freedoms Overview of the Canadian Charter of Rights and Freedoms with brief explanations: • http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/ov-apr-eng.cfm • Section 1 – Guarantee of Rights and Freedoms • http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/grt-eng.cfm • Section 7 – Legal Rights • http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/lgl-eng.cfm • Section 15 – Equality Rights • http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/eql-egl-eng.cfm Read the Canadian Charter of Rights and Freedoms here: http://laws-lois.justice.gc.ca/eng/Const/page-15.html 300/330 - appleby

14. CHARTER OFRIGHTS & FREEDOMS #1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. #7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. #15. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 300/330 - appleby

15. 1988 : ABORTION and theCANADIAN CONSTITUTION 1988 - Supreme Court of Canada R. v. Morgentaler, [1988] 1 S.C.R. 30 • Canadian Criminal Code sections on abortion judged unconstitutional  struck from Code • Judgement based on Canadian Charter of Rights and Freedoms (1982) • provisions #1 and #7 See full text of decision here: • http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/288/index.do?r=AAAAAQAQbW9yZ2VudGFsZXIgMTk4OAAAAAAB 300/330 - appleby

16. Supreme Court MAJORITY DECISIONR. v. Morgentaler 1988 “Forcing a woman, by threat of criminal sanction, to carry a foetus 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 a violation of security of the person” • also noted that the procedures of gaining consent of therapeutic abortion committee delays abortion and thus increases risks to woman of the procedure of abortion • Abortion – 10th Anniversary of Decision – 1998 • http://ms.radio-canada.ca/archives_new/2002/en/wmv/morgentaler19980128et2.wmv [http://archives.cbc.ca/politics/rights_freedoms/topics/107-782/ ] 300/330 - appleby

17. R. v. Morgentaler, [1988] 1 S.C.R. 30 4 Different Decisions 3 concurring decisions were written: • Chief Justice Dickson and Mr. Justice Lamer authored the majority decision • Mr. Justice Beetzand Mr. Justice Estey wrote a second majority decision • Madame Justice Wilson wrote a third majority position One dissenting decision was written • Mr. Justice McIntyre and Mr. Justice La Forest authored a dissenting position 300/330 - appleby

18. Summary of the majority decision: • section 287 (then 251) of the Criminal Code infringed a woman's right to security of the person; • the process by which a woman was deprived of that right was not in accord with fundamental justice; • the state interest in protecting the fetus was sufficiently important to justify limiting individual Charter rights at some point; and • the right to security of the person of a pregnant woman was infringed more than was required to achieve the objective of protecting the fetus, and the means were not reasonable. http://publications.gc.ca/collections/Collection-R/LoPBdP/CIR/8910-e.htm 300/330 - appleby

19. “[E]very pregnant woman is told…that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations. Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress. Section 251 [of the Criminal Code] clearly interferes with a woman's bodily integrity in both a physical and emotional sense.” from the Majority Decision by Dickson & Lamer 300/330 - appleby

20. Furthermore, the decision continues: “The evidence indicates that s. 251 causes a certain amount of delay for women who are successful in meeting its criteria. In the context of abortion, any unnecessary delay can have profound consequences on the woman's physical and emotional well-being… “…the earlier the abortion was performed, the fewer the complications and the lower the risk of mortality” 300/330 - appleby

21. INTERESTS OF WOMANvs. INTERESTS OF FETUS • “the interest in the life or health of the pregnant woman takes precedence over the interest of the state in the protection of the foetus when the continuation of the pregnancy would or would be likely to endanger the pregnant woman’s life or health.” • If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between…the commission of a crime…and… inadequate treatment or no treatment at all, her right to security of the person has been violated.” The Court did not rule whether “there would be a point in time at which the state interest in the foetus would become compelling.” 300/330 - appleby

22. Madame Justice Bertha Wilson: “[T]he foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman's autonomy would be absolute and a restrictive approach in the later stages where the states' interest in protecting the foetus would justify its prescribing conditions.” 300/330 - appleby

23. Madame Justice Bertha Wilson At what point does the state’s interest in the foetus become ‘compelling’ and justify state intervention in what is otherwise a matter of purely personal and private concern? “The precise point in the development of the foetus at which the state's interest in its protection becomes "compelling" should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines…It seems to me…that it might fall somewhere in the second trimester.” 300/330 - appleby

24. Legal personhood / moral personhood • In Canada, fetuses are not considered legal persons until they are born alive • Some moral positions on fetal status disagree with this non-recognition of fetal personhood prior to birth • Some moral positions on fetal personhood agree with this position • Some might even allow for infanticide Here are some additional considerations: 300/330 - appleby

25. Sentience • Sentience is the ability to experience things by means of our senses: • visual, auditory, touch, taste, motion • neurologically capable of experiencing pain Does capacity for sentience confer moral status or rights? • animals are sentient beings • fetuses become sentient at about 20 weeks 300/330 - appleby

26. Viability • Viability changes according to medical technology; not just a biological assessment • was 26-28 weeks; now can be closer to 24 weeks • with research on ectogenesis, viability may become a purely technological designation • once ectogenesis is possible, would all fertilized eggs have a moral right to life? 300/330 - appleby

27. Maternal / Fetal Relationships • Most women welcome and are able and willing to nurture fetal life • avoidable harms are avoided • efforts are taken to protect the fetus • nurturing care for the pregnant woman enhances the well-being of fetal life • some believe that efforts to designate fetuses as persons with legal rights in contradiction to maternal rights may be misguided 300/330 - appleby

28. Maternal / Fetal Unit • Prior to birth, the pregnant woman and fetus is a complex or composite unit • structurally and qualitatively unique • no comparable human relationship • organic unity • organic functioning of one inseparable from other Physicians cannot treat a fetus independent of the pregnant woman within whose body it exists 300/330 - appleby

29. IN CONFLICT WHOSE RIGHTS SHOULD PREVAIL? Jewish, Muslim, many Christian, many non-religious people believe that women are already persons: • thinking, self-aware, interactive, social beings • fetuses are “not yet” persons • late-term (maybe viable?) fetuses may have substantial moral rights • with agreement of pregnant woman, fetuses may be cared for even at her expense • but the legal choice is hers • the fetus has no legal right to prenatal treatment independent of the pregnant woman’s legal rights 300/330 - appleby

30. LEGAL PERSONHOOD • Pregnant women have a right to autonomy, physical integrity, and life • forcibly treating a woman and/or her fetus without her consent amounts to assault “There is room for only one person with full and equal rights inside a single human skin.” Mary Anne Warren in “The Moral Significance of Birth” According to Canadian law, live birth marks the beginning of legal personhood 300/330 - appleby

31. March 1989: The Supreme Court of Canada refused to rule on Borowski'sclaim that fetuses have a constitutionally guaranteed right to life. • 1989: The Supreme Court ruled that a man has no legal right to veto a woman's abortion decision.  • 1990: Bill C-43 would sentence doctors to two years in jail for performing abortions where a woman's health is not at risk. • June 2007: Bill C-338called for the re-criminalization of abortions performed after the 20th week of gestation • June 2004: Conservative Leader Stephen Harper says he has no plans to reintroduce abortion regulations. • March 2007: The Unborn Victims of Crime Act would establish a separate offence for fetal homicide when a pregnant woman is killed. 300/330 - appleby

32. None of these bills were passed Do you think that it would be possible to introduce abortion legislation that would not infringe on the constitutional rights of pregnant women? • Is this something that you think should be done? • Try to formulate an abortion law that might be consistent with the constitutional rights of pregnant women 300/330 - appleby

33. May 2013Abortion rights activist Dr. Henry Morgentaler dies at 90 http://www.cbc.ca/news/canada/abortion-rights-activist-dr-henry-morgentaler-dies-at-90-1.1321542 Morgentalersurvived a five-year stay in the Nazi concentration camps of Auschwitz and Dachau where his parents were killed. "By fighting for reproductive freedom, and making it possible, I have made a contribution to a safer and more caring society where people have a greater opportunity to realize their full potential," he said in 2005, shortly after receiving his honorary doctor of law degree from the University of Western Ontario in London. "Well-loved children grow into adults who do not build concentration camps, do not rape and do not murder," he said. 300/330 - appleby

34. Death of Dr. Garson Romalis31 January 2014 “Early on the morning of Nov. 8, 1994, as Dr. Romalis sat down for breakfast in his west side Vancouver home, a sniper’s bullet smashed through the glass doors of his kitchen and tore into his left thigh. Gravely wounded, he fell to the floor, blood pouring from a large severed artery. Only his quick application of a tourniquet, using the belt from his bathrobe, prevented Dr. Romalis from bleeding to death… “Dr. Romalis remained firm in his resolve to provide a safe, legal service for women, many of whom, he noted, were in the biggest trouble of their lives. “’By performing a five-minute operation, in comfort and dignity, I can give them back their lives,’ he would say.” http://www.theglobeandmail.com/news/british-columbia/garson-romalis-risked-his-life-to-perform-abortions/article17052093/?page=all 300/330 - appleby

35. Additional Government of Canada resources: Abortion: Constitutional and legal developments • Mollie Dunsmuir, Law and Government Division; 18 August 1998 • http://www.publications.gc.ca/Collection-R/LoPBdP/CIR/8910-e.htm Abortion in Canada: Twenty Years AfterR. v. Morgentaler • KarineRicher, Law and Government Division; 24 September 2008 • http://www.parl.gc.ca/content/LOP/ResearchPublications/prb0822-e.htm; also at http://www.parl.gc.ca/content/LOP/ResearchPublications/prb0822-e.pdf R. v. Morgentaler, [1988] 1 S.C.R. 30 • http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/288/index.do?r=AAAAAQAQbW9yZ2VudGFsZXIgMTk4OAAAAAAB 300/330 - appleby