Of What Difference? ISBN 978-0-9812493-0-8 20th Anniversary of Regina v. Morgentaler Of What Difference? Reflections on the Judgment and in Today

SYMPOSIUM

Toronto, January 25, 2008

Co-hosted by the National Abortion Federation and the Faculty of Law, University of

20th Anniversary of R v. Morgentaler Symposium

Of What Difference? Reflections on the Judgment and Today

On January 25, 2008, in Toronto, Ontario, to representatives from government the Faculty of Law, and women’s advocacy organizations. (U of T) and the National Abortion Examining abortion from a variety of Federation (NAF) co-hosted an perspectives, participants addressed the interdisciplinary symposium to celebrate significance of the event and the difference the 20-year anniversary of Regina v. the R. v. Morgentaler judgment has since Morgentaler, the Supreme Court case in made to women, providers and the politics which the criminal law on abortion in of abortion in Canada. Canada was held unconstitutional. This reader, prepared in collaboration with The symposium brought together more the Women’s Health Research Institute, is than 100 participants, from legal scholars, a compilation of the day’s presentations at abortion providers and journalists this commemorative legal conference.

This document is the property of the National Abortion Federation. Permission to reproduce this document is granted for use without fee and without formal request provided it is reproduced accurately and not used in a misleading context. The material must be acknowledged as NAF copyright and the title of the document specified. Copies may not be made or distributed for profit or commercial advantage. An electronic version of this document can be downloaded from the NAF Canada website at: (http://www.prochoice.org/canada).

Acknowledgements

NAF and its co-host, the Faculty of Law, extended. Symposium organizers wish to University of Toronto, wish to thank all acknowledge law students Carolina S. Ruiz of the symposium attendees for their Austria, Chris Kaposy and Keri Bennett for participation in the 20th Anniversary their poster presentations. of R. v. Morgentaler Symposium. In We wish to thank the Canada Research particular, we would like to thank all of the Chair in Health Law and Policy for their symposium presenters who willing shared generous support of this symposium. their stories and perspectives for this historical event. (See Appendix 2 for a short NAF and the Faculty of Law, University biography of each presenter.) of Toronto, in collaboration with the Women’s Health Research Institute, are To all of the volunteers who generously pleased to present these proceedings of donated their time before and during the 20th Anniversary of R. v. Morgentaler the symposium, grateful thanks are Symposium.

Table of Contents

Forward...... 1

Introduction...... 3

Keynote Address: Dr. ...... 5

The Context: From Morgentaler to Abortion in Canada Today...... 9 R v. Morgentaler: Charter Rights and Abortion...... 11 Post-Morgentaler Challenges: From Crime to Health...... 1 2 Abortion in Canada Today: Who, What, Where?...... 16

Rights in Practice: Barriers to Available and Accessible Care...... 21 Abortion in Canada: From Sea to Shining Sea...... 23 Law: Facilitating and Impeding Access...... 25 Better Never Than Late, But Why? The Contradictory Relationship Between Law and Abortion...... 29 Information Failure: An Ontario Case Study...... 35

Our Providers: the Challenges of Their Work...... 39 Challenges of Providing Abortion Care: A Provider’s Perspective...... 41 Why Do I Do This? Being a Provider...... 4 6 The New Generation: Abortion in Medical Schools...... 49 The Role of Media in the ...... 54 The Politics of Abortion: The Work of the Politician...... 57 On Being a Legal Academic in a Politically Charged Context...... 63

Canada From an International and Comparative Perspective...... 67 Canada from an International and Comparative Perspective...... 69

Appendices...... 71 Appendix 1: Symposium Programme...... 73 Appendix 2: Presenter Biographies...... 75 10 Forward

The celebration of the 20th anniversary in Canada to shift the way in which health of the 1988 decision of the Supreme care systems generally treat women, from Court of Canada in the case of Regina v. paternalistic and demeaning approaches Morgentaler allows us to reflect on the to ones that respect their dignity and various factors that led to this judgment, autonomy, and enhance their agency. and its subsequent implementation. Ensuring recognition and respect of First is the extraordinary courage of Dr. women’s moral agency, and their rights to Henry Morgentaler in challenging what make their own conscientious decisions is called the modern day inquisition, the is not always easy, particularly given the prevailing efforts to suppress women’s stigma women face in their pathways to rights and freedoms. The Court applied the obtain abortion services. Canadian Charter of Rights and Freedoms Challenges ahead include those steps to ensure that women could exercise their that are necessary to reduce barriers and fundamental right to security of the person promote access, particularly to underserved to decide whether or not to continue populations. Measures to reduce barriers with their . The decision of the include removing therapeutic abortion Supreme Court explained the government from the list of excluded services under could not criminalize abortion in ways that the Interprovincial Reciprocal Billing infringed women’s fundamental rights, and Agreement. Steps to promote access in so doing heralded in a new era of human include the approval and wide availability rights and social justice. The Supreme Court of the safest and most acceptable means used public health statistics gathered in the of (that is non-surgical), 1977 Report of the Royal Commission on which would bring Canada into alignment the Operation of the , chaired with those 40 countries that have now by Professor Robin Badgley, to show how approved and provide medical abortion. inequitably the 1969 amendment to the Canadian Criminal Code operated. Some countries, such as Sweden, have developed a series of health service Second, is the perseverance of providers indicators that measure the quality of the and women’s health advocates across delivery of the service, and health status Canada to ensure implementation of the indicators that measure the outcomes of the Morgentaler decision. As the papers that health service. One of the most important follow explain, there have been many health status indicators is the percentage contests around the implementation of the of performed during the first 10 Morgentaler decision, including ensuring weeks of pregnancy. These indicators need coverage of abortion services in provincial to be disaggragated by age, rural status health plans, and controlling clinic and, for example, ethnicity, to ensure that harassment, violence against providers, subgroups of women, particularly those and against women seeking services. It is that are marginalized in the health care clear from these fights that the crime and system, have equitable and timely access to punishment mentality ebbs and flows, and services. it requires eternal vigilance if women’s rightful place is to be secure in Canadian In moving forward to ensure that each society. Province and Territory eliminates barriers, guarantees that every woman in Canada Third, is the ingenuity of all those has access to dignified and timely care, concerned with improving women’s health

1 and fosters respect for women’s moral agency, it is inspiring to remember the courage, perseverance and ingenuity of those who made the implementation of the Morgentaler decision possible. Rebecca J. Cook Faculty of Law University of Toronto

2 Introduction Vicki Saporta, President and CEO, National Abortion Federation (NAF)

Monday, January 28th, 2008 marks the rights, women mobilized—this time around 20th anniversary of R v. Morgentaler, the obtaining the right to have a safe and legal Supreme Court’s ruling that decriminalized abortion. abortion in Canada. This landmark decision In 1970, 18 years before abortion was has undoubtedly protected the health and removed from the Criminal Code, the saved the lives of countless women, and Women’s Caucus organized the was named as one of the most important first national feminist protest to liberalize the and influential Charter cases of the last abortion law. The Abortion Caravan, as they 25 years. Today, we are privileged to have were called, traveled over 3,000 miles from with us the lawsuit’s namesake and a Vancouver to Ottawa, where 500 women true champion of women’s reproductive demonstrated for two days demanding legal freedom, Dr. Henry Morgentaler. access to abortion. And 30 women chained As most of you know, in the years leading themselves to the parliamentary gallery in up to the Morgentaler decision, abortion the House of Commons, closing Parliament was permitted only in very limited for the first time in Canadian history. This circumstances. Hospitals with Therapeutic relatively small group of women stood up Abortion Committees could approve and and demanded that all women have equal provide abortion care only in cases of life or access to abortion care. These 30 women health endangerment. In order to obtain a gave a voice to the tens of thousands of legal abortion, women were forced to face Canadian women who were unable to an intimidating process of going before legally obtain the abortion care they needed. a hospital committee to petition for care. As women organized in our quest for This policy established unequal access to reproductive freedom, one man stood out abortion throughout the provinces and as a leader for our cause and a champion territories, and made it particularly difficult for our rights. Dr. Morgentaler defied for women outside major urban centers the law and opened the first Canadian to obtain abortion care. It is estimated freestanding in in during this time that 35,000 to 120,000 1969. For the next 20 years, he continued illegal abortions took place each year. to fight the system and even served prison We may never know the actual number time for providing women with safe of women who sacrificed their lives and abortion care. At tremendous risk to his health through back alley or self-induced life and personal safety, Dr. Morgentaler abortions. Many of you witnessed the remained committed to liberalizing devastation of illegal abortion first-hand Canada’s abortion law and continued and joined the fight to legalize abortion. to speak out for women’s reproductive Throughout history, major movements freedom. have been started by dedicated people who These efforts were successful, and today were willing to stand up and give a voice Canada is one of only a few countries to people in need. The battle for abortion without a federal law restricting abortion. rights was fought in Parliament, in the Although abortion has been decriminalized courtroom, and in the streets. Just as they for 20 years, challenges to accessing had done for voting rights and human abortion care in Canada still exist. As

3 we gather here today to reflect on this is a clear violation of CMA’s own Code of decision’s impact on the Canadian health Ethics, which requires physicians to: system, the political landscape, and the • Consider the well-being of the patient; women of Canada, we are reminded that in some provinces and territories women are • Practice medicine in a manner that still denied equal access to abortion care. treats the patient with dignity; and Even though abortion is considered a safe, • Provide patients with the information legal, and insured service, access is variable they need to make informed decisions across the country. about their medical care.

Currently, there are no abortion services The CMA’s policy treats women unfairly available in , and and impedes women’s access to care. access remains a challenge for rural women Now more than ever, it is important that throughout Canada. In , a we don’t lose sight of the women who woman can only obtain a publicly funded continue to face these obstacles in order to abortion if provided by an obstetrician/ obtain the abortion care they need. Now gynecologist (OB/GYN) in a hospital with more than ever, we must remain dedicated written approval from two doctors. This to advocating for these women. We must policy contradicts the decision we are here continue to work together to ensure that to commemorate and unfairly restricts women have the same access to abortion access for women in the province. care whether they live in an urban center or Women not living in their home province a small town, or whether they live in British or territory also face challenges because Columbia or Prince Edward Island. abortion is not part of the inter-provincial Some of you here today are students who billing agreement. In fact, abortion is the have never lived in a world without legal only time-sensitive and medically necessary abortion. You, most of all, must remain procedure excluded from the list of services vigilant in preserving this freedom so that on the inter-provincial billing agreement. we never have to return to the days of back This policy forces students attending school alley abortions where our sisters, mothers, in another province, or women who have and friends had to risk their health—and recently moved and are in the process of sometimes even their lives—to end an transitioning their health care benefits, unwanted pregnancy. to pay the full cost of their abortion care out-of-pocket, or incur additional expenses The National Abortion Federation and traveling back to their home province in the National Abortion Federation Canada order to obtain a publicly funded abortion. are pleased to co-sponsor this symposium with The University of Toronto’s Faculty Anti-choice physicians can also present of Law, and with generous support from barriers to access. Although many the Canada Research Chair in Health Law abortion providers accept self-referrals, and Policy. We’ve put together an insightful some facilities require women to obtain a day-long program and have assembled physician referral before they can access leading experts to examine themes drawn abortion care. Many women often go to from the Morgentaler decision. Thank their family physician for this referral you for joining us as we commemorate or simply to get information about this historic decision and its impact on their options. The Canadian Medical Canadian women. It is certainly a pleasure Association’s policy of allowing physicians to welcome all of you to this symposium. to refuse to refer patients for abortion care

4 Keynote Address: Dr. Henry Morgentaler Reflections on My Struggle to Make Abortion Legal and Available in Canada

This is a truly momentous occasion. I am remaining clinics and of the high quality of happy to be among so many people who services they continue to provide. have taken the time to mark a very special The past 20 years have certainly had their day. It has been twenty years since a historic share of challenges, but I believe I have Supreme Court decision profoundly met those challenges head on. I have changed the lives of women in Canada. The debated publicly on radio and television Morgentaler decision by the Supreme Court and unfortunately exposed myself and my of Canada of 1988 is an important milestone family to threats and harassment. in the emancipation of Canadian women. This is a proud moment not only for me but Although we mark 20 years since the for all those people who have played such Supreme Court decision, we must be an important role in this movement. cognizant of the fact that there have been additional court battles across Canada since In 1988 the ruled that time. I continue to fight the province that women have the right to make choices of New Brunswick; a province whose concerning their own . Government continues to stubbornly insist I am proud to have played such a pivotal that women have no access to abortion; role in that decision. I also believe that the where women continue to have to walk world is a kinder, gentler place for women through protestors; where doctors are still in Canada because they do have the right to being harassed. make choices. It is clear that children, who grow up The first case to be litigated after the wanted, loved and cared for, grow up to be decision was in , where the emotionally healthy adults. I believe that Government was intent on destroying the the documented decrease in crime today clinic which I had established there. It had is directly related to the fact that women introduced legislation to make abortion can now make choices concerning their outside of hospitals a criminal act, liable own reproductive health. I believe that to a $50,000 fine for each procedure. our society is a better society today than it Fortunately the judge who presided over was thirty years ago. I am thankful to have my trial in Halifax declared this legislation been able to play such an important role invalid and I was able to operate the in ensuring that women are treated justly, clinic in Halifax for eight years, providing with dignity and respect. services to women from all the Maritime provinces. Let me review briefly the situation in Canada regarding access to abortion Over the years, I have developed a near services across the country. Six provinces perfect surgical procedure. I have had the now have reasonably good access; Ontario, privilege of training over 100 doctors to do Alberta, , Newfoundland, this procedure safely and compassionately. and . At one time there were eight Morgentaler Clinics across Canada. I built those clinics We have won a class action suit in Quebec to ensure fair and equal access to the recently and women in Quebec now have abortion procedure in a safe and secure good access to abortion services under environment with caring and respectful . service providers. I am very proud of my

5 In Manitoba, where I had to fight the I have personally been responsible for Government for 20 years, I eventually opening eight clinics across the country, of sold my clinic in to a group of which seven still provide services. What pro-choice women. The clinic I established my clinics have achieved is a standard of eventually received funding so that women care based on competence and compassion; can now access abortion services under where the safety and dignity of patients is Medicare. the major consideration. I am proud to say The situation in the Maritimes is still that in all the years of operation, my clinics difficult. My Newfoundland clinic got have achieved an outstanding degree of funded many years ago and women there safety. In all those years not a single woman no longer have to travel all the way to died as a result of an operation and the rate Montreal for abortions. The main Nova of complications has remained very low. Scotia hospital providing abortion services Over the years, in spite of threats and hired a Halifax doctor whom I had trained harassment by anti-choice fanatics I have and improved access so that my clinic there, been able to establish clinics where women which had existed for 10 years, was no are treated with competence and dignity. I longer necessary. PEI has not had a facility have trained many doctors and nurses who offering abortion services for many years, established and worked in facilities with a so women there have to travel to Halifax or similar philosophy of care and compassion. New Brunswick for abortions. I am proud of what I have been able to The only province which deprives women achieve. of access to abortion is New Brunswick. I wish to thank the doctors, nurses, I established a clinic 14 years ago in counselors and other staff in my clinics, Fredericton, which the Government still who have helped me to attain a high refuses to acknowledge or fund, so access degree of safety and competence. I wish to to abortion services is still inadequate. congratulate all staff members in abortion I have initiated legal action against the clinics across Canada who continue to Government of New Brunswick, but the provide services in spite of harassment and process is slow. In the meantime, women threats. in New Brunswick are deprived of services Here in Canada, I can still remember the and are obliged to pay for them out of their years before the Supreme Court decision, own pocket. Unfortunately the Liberals when abortion was illegal and unsafe and who replaced the Conservatives in power was responsible for many preventable in that province are as anti-choice as the deaths of young women. Major hospitals like Conservatives; nothing much has changed the Royal Victoria or Saint Luc in Montreal since they took power. had entire floors filled with women who In the major cities and population centers were dying or were seriously injured from in Ontario, Quebec, British Columbia, unsafe, illegal or self-induced abortions. Alberta, Manitoba and Nova Scotia, women Fortunately, this is no longer the case. now have access to abortion services In Canada abortion is available on under Medicare. In the smaller population request, the direct result of the Supreme centres in the Maritimes and in vast areas of Court ruling in 1988, which gave women Manitoba and , women have the right to control their bodies, and to travel to obtain them, but overall the most importantly, the ability to choose situation has improved dramatically since motherhood at a time that was appropriate the 1988 decision.

6 for them. The Supreme Court decision and willingness to make this world a better allowed me and other physicians to place to live. establish clinics across the country which Let me end on a personal note. I am a could provide the services that women survivor of the Nazi Holocaust, that orgy needed, with competence and compassion. of cruelty, brutality and inhumanity. I The Morgentaler decision of the Supreme have personally experienced oppression, Court of Canada affirmed the dignity and injustice and suffering inflicted by equality of women in this country; breathed those beholden to a racist, dogmatic new life into the Charter of Rights and and irrational ideology. To have had the added a new dimension to democracy and opportunity to diminish suffering and liberty in Canada. Canada is amongst the injustice has been very important to me. best countries in the world for mortality Reproductive freedom and good access of women and babies in the process of to safe abortion means that women will childbirth. “Every mother a willing mother; be able to give life to wanted babies at a every child a wanted child” is a slogan which, time when they can provide love, care and if implemented, creates stronger families, nurturing. better communities and a kinder, gentler In my fight over the past decades for society. reproductive freedom and in helping to Over the past 37 years I have dedicated make it possible in Canada, I believe that myself to the struggle to achieve rights I have made a contribution to a safer and to reproductive freedom and to provide more caring society where people have facilities for women. This struggle gave a greater opportunity to realize their full meaning to my life, and corresponded to potential. the ideals that I inherited from my parents: dedication to human rights and an ability

7 8 The Context: From Morgentaler to Abortion in Canada Today

9 10 R v. Morgentaler: Charter Rights and Abortion Lorraine E. Weinrib, Faculty of Law, University of Toronto

Professor Weinrib’s presentation was the strongest predictors of a woman’s access unavailable for inclusion in this Reader, to abortion were her doctor’s age, sex, however she spoke to the issue of how whether it was a rural or urban practice, Canada’s old abortion law, Section 251 and her own age and marital status, none of of the Criminal Code, banned all forms which say very much about threats to her of abortion until 1969, when then Justice “life and health.” Minister introduced an Dr. Morgentaler, who had set up a clinic in amendment to allow it in certain cases, to Montreal, pushed this state of affairs to its protect a woman’s life or health. This is crisis by placing the decision solely with generally held up in history classes as a the woman, and it was his prosecution great leap forward for women, but it mostly that ultimately led the Supreme Court served the interests of doctors. She called it to rule the criminal law against abortion an “incomprehensible monstrosity.” unconstitutional. “If the judgment had “What it did was produced the capacity for gone to the dissent, I think that would have senior members of the medical profession been the end of the Charter, at least for a to open the door and control the traffic, generation and perhaps permanently,” because there were abortions they wanted Prof. Weinrib said. to do according to their discretion, and they (exerpted from: The , January didn’t want to go to jail,” she said. 26, 2008 Pro-live v. pro-choice: The debate The “life and health” standard was further beats on.) diminished when it became apparent that

11 Post-Morgentaler Challenges: From Crime to Health Joanna N. Erdman, International Reproductive and Sexual Health Law Programme, Faculty of Law, University of Toronto

What happened after R v. Morgentaler1 and to uniquely govern abortion as a health the Supreme Court of Canada? service.4 Canada followed the general trend in This presentation examines when and why abortion law reform—from crime and the different treatment of abortion as a punishment to health and welfare. At health service is legally justified. When does the federal level, Parliament attempted the different treatment of abortion serve to re-enact a criminal law on abortion. legitimate and important goals? When does This attempt, Bill C-43, An Act Respecting the different treatment of abortion unfairly Abortion, was unsuccessful.2 deny women access to medically necessary Abortion—throughout pregnancy—was care? When does it stigmatize women and no longer uniquely subject to criminal abortion providers? regulation. In this respect, Canada itself was The move from criminal to health unique in the international context. This is regulation placed us in a dilemma of no longer the case. The Canadian standard difference. Meeting our goals in abortion is now reflected in international human care requires both integration and rights law. All states are advised that separation, both similar and different punitive measures imposed on women who treatment in law and policy. 3 undergo abortion should be withdrawn. My objective is to examine this dilemma of With R v. Morgentaler—and the failure difference through key legal developments of Bill C-43—abortion was transferred from the last twenty years. These from the criminal to the health context. developments relate to three goals of Following decriminalization, abortion could abortion regulation: ensuring available, be legally integrated into health systems, accessible and acceptable abortion care. and governed by the laws, regulations, and medical standards that apply to all health The Dilemma of Difference and services. Abortion could be regulated as Available Abortion Care a health service like any other, but it was not. Following decriminalization, a series Available abortion in hospitals and clinics of laws and regulations were enacted has long been subject to unique legal regulation. 1 R v. Morgentaler, [1988] 1 S.C.R. 30. 2 An Act Respecting Abortion, C-43, 2d Session 34th Under the criminal law, lawful abortion Parliament, 38 Elizabeth II (1989) (as defeated by services were restricted to hospital facilities. Senate, Jan. 31, 1991). This restriction was one ground on which 3 See e.g. U.N. Committee on the Elimination of all forms of Discrimination against Women, General the Supreme Court in R v. Morgentaler Recommendation No. 24. Women and Health. UN (1988) held the law unconstitutional.5 No Doc. A/54/38/Rev.1, para 31(c), (1999): “When possible, legislation criminalizing abortion should 4 J.N. Erdman. “In the Back Alleys of Health Care: be amended, in order to withdraw punitive Abortion, Equality, and Community in Canada” measures imposed on women who undergo (2007) 56 Emory Law Journal 1093, 1093. abortion.” 5 Justice Beetz confirmed that “no medical

12 medical reason required that abortions be allow beneficiaries to receive abortions at restricted to hospitals. Clinics can offer that hospital.”10 In this case, the different comprehensive, supportive, and quality treatment of abortion functions to ensure care. rather than restrict its availability. Nevertheless, in 1989, Nova Scotia enacted Government action to ensure available a law that prohibited abortions outside of abortion services is increasingly being hospitals and denied public funding for advocated. The Health Equity and Law abortions performed in violation of the Clinic at the Faculty of Law, University prohibition. Its stated purpose: to prevent of Toronto, recently published an article two-tiered health care and to ensure high advocating for government intervention to quality care. In 1993, a unanimous Supreme ensure the introduction of safe and effective Court of Canada struck down the law.6 The reproductive health medicines—including purpose of the prohibition, the Court held, medication abortion—into Canada.11 was not to regulate clinics generally. It was “to prohibit abortions outside hospitals The Dilemma of Difference and 7 as socially undesirable conduct.” The Accessible Abortion Care intention was not to treat abortion like other health services, but to treat abortion In many countries, women’s access to differently. The law regulated “the place abortion services is conditioned on parent where an abortion may be obtained, not or partner consent. In Canada, no such from the viewpoint of health care policy, unique consent requirements apply. but from the viewpoint of public wrongs or Courts continue to uphold the rights crimes.”8 of mature young women to consent to A New Brunswick law was struck down abortion without parental involvement. A for the same reasons.9 The purpose of the young woman may consent to an abortion law was to prohibit abortion clinics, in provided she is sufficiently mature and particular, Dr. Morgentaler’s clinic. intelligent to understand the proposed care. In British Columbia, hospital abortion No different legal requirements apply. As services are currently subject to different stated by the Alberta Court of Appeal: “The legal treatment. After a number of hospital issue is not whether abortions are morally boards voted to discontinue abortion right or wrong; the issue is simply one of services, unique regulations were enacted the capacity to consent.”12 to ensure available care in every region of In 1989, in Tremblay v. Daigle, the Supreme the province. The regulations designate Court denied that any substantive rights, 33 public hospitals that “must provide fetal or parental, outweigh women’s rights the facilities and services necessary to to access abortion services.13 A partner or potential father cannot override a woman’s justification” required all therapeutic abortions to be performed in hospitals. According to expert decision to terminate her pregnancy. Her testimony, “many first trimester abortions may be safely performed in specialized clinics outside 10 Hospital Insurance Act Regulations, B.C. Reg. of hospitals…possible complications can be 25/61, s. 5.20, enacted pursuant to the Hospital handled, and in some cases better handled, by the Insurance Act, R.S.B.C. 1996, c. 204. facilities of a specialized clinic.” R v. Morgentaler, 11 J.N. Erdman, A. Grenon & L. Harrison-Wilson. [1988] 1 S.C.R. 30, 115. “Medication Abortion in Canada: A Right-to- 6 R. v. Morgentaler, [1993] 3 S.C.R. 463. Health Perspective” (2008) 98 American Journal of 7 Morgentaler, [1993] 3 S.C.R. at 513. Public Health 1764. 8 Ibid. 12 C. v. Wren (1986), 35 D.L.R. (4th) 419, 424 (Alta. 9 Morgentaler v. New Brunswick (Attorney General), C.A.). [1995] 121 D.L.R. (4th) 431 (N.B.C.A.). 13 Tremblay v. Daigle, [1989] 2 S.C.R. 530.

13 right to free and informed decision-making constitution law. For the first time, a Court governs. held that denied access to safe and timely Economic accessibility or affordability abortion care violates women’s equality 19 remains a continuing concern. Immediately rights. Litigation in New Brunswick after judicial decriminalization, all remains ongoing. provinces, with the exception of Ontario Canadian courts are increasingly finding and Quebec, restricted or withdrew public that the different treatment of abortion funding for abortion services. British services under public health insurance Columbia, Manitoba, New Brunswick schemes is unjustified. The opposite is true and Prince Edward Island limited public respecting the regulation of information: funding to “medically necessary” hospital the right to seek and receive information, abortions. All regulations were legally but also the right to privacy protection, and challenged on jurisdictional grounds. Some public interests in safety and health. 14 survived scrutiny, others were defeated. Privacy commissioners across the country The British Columbia Supreme Court have inquired into requests for abortion- declared the funding regulation related information and refused disclosures “inconsistent with the [law], and with based on health and safety grounds.20 In common sense.”15 In Manitoba, the Court the past, requests for abortion-related of Appeal called the policy perverse. By information from public bodies were requiring that abortions be performed in treated the same as all other information hospitals rather than clinics, “an insurance requests. There was no presumption that scheme designed to control costs, willfully the information qualified for protection. increased them.”16 A demonstrated risk of harm to health or Following successful challenges, many safety was required to refuse disclosure. provinces enacted amended restrictions and Section 22.1 of the Freedom of Information and so followed a second and more recent series Protection of Privacy Act in British Columbia of cases. reverses this presumption.21 A public In 2006, a Quebec court ordered the body must refuse to disclose abortion- province to reimburse almost 45,000 related information unless the request women for their out-of-pocket clinic meets narrow exceptions, for example, abortion expenses.17 In 2004, a Manitoba generalized statistical information. Court held that denied public funding This different treatment of abortion- for clinic abortions violated the Canadian related information acknowledges the Charter of Rights and Freedoms.18 While difficult context in which many abortion the judgment was subsequently set providers work. Given that provider safety aside, it remains significant in Canadian is necessary to ensure continued abortion care, the province protects again disclosure 14 Erdman, supra note 4 at 1094. that would deter service provision. Limited 15 B.C. Civil Liberties Ass’n v. British Columbia (Attorney General), [1988] 49 D.L.R. (4th) 493, 498 access to abortion information, however, (B.C. S.C.). 16 Lexogest Inc. v. Manitoba (Attorney General) 19 For equality rights analysis, see Erdman, supra (Lexogest I), [1993] 101 D.L.R. (4th) 523, 552–53 note 4. (Man. C.A.). 20 See e.g. Interior Health Authority (Re), 2007 CanLII 17 Association pour l’accès à l’avortement c. Québec 7545 (BC I.P.C.) re s. 22.1. (Procureur général), [2006] QCCS 4694 (Qué. S.C.). 21 Freedom of Information and Protection of Privacy 18 Jane Doe 1 v. Manitoba, [2004] 248 D.L.R. (4th) 547 Act, R.S.B.C. 1996, c. 165, s. 22.1(2). “The head (Man. Q.B.); rev’d. [2005] 260 D.L.R. (4th) 149 of a public body must refuse to disclose to an (Man. C.A.); leave to appeal to S.C.C. refused, applicant information that relates to the provision [2005] S.C.C.A. No. 513. of abortion services.”

14 can be problematic. Women are without and Freedoms. The British Columbia access to resources. Information deficits Supreme Court found the infringement also impede efforts for government was justified.23 The objective of the law, accountability. to facilitate equal access to health care, was recognized as a fundamental value The Dilemma of Difference and in Canadian society. The Court reasoned Acceptable Abortion Care that “a woman’s right to access health care without unnecessary loss of privacy and The different treatment of abortion dignity is no more than the right of every may also serve the goal of acceptability, Canadian to access health care.”24 ensuring that abortion care is provided in a manner respectful of women’s dignity. The Conclusion constitutionality of laws creating “access zones” to protect clinic facilities, and The legal regulation of abortion as a health provider homes and offices, is one example. service presents us with a dilemma of difference. Ensuring available, accessible The Preamble to the Access to Abortion and acceptable abortion care requires that Services Act of British Columbia recognizes we sometimes treat abortion differently that all persons “who use the… health than other health services and sometimes care system, and who provide services the same. This dilemma of differences for it, should be treated with courtesy makes clear that legal regulation is a means and with respect for their dignity and and not an end. Our task is to use the privacy.”22 When this law was challenged law to achieve our desired end: to ensure as unconstitutional, the Crown conceded available, accessible and acceptable care for that it infringed the freedom of expression every Canadian woman. under the Canadian Charter of Rights

23 R v. Lewis (1996), 139 D.L.R. (4th) 480 (B.C. S.C.). 22 Access to Abortion Services Act, R.S.B.C. 1996, c.1. 24 Ibid. at 509.

15 Abortion in Canada Today: Who, What, Where? Dawn Fowler, Canadian Director, National Abortion Federation (NAF)

The following is a synopsis of the Power • Previous abortions; Point presentation given by Dawn Fowler to • Date of last menses/gestation period; conference participants. • Abortion procedure; • Sterilization; 2004 Canadian Abortion • Complications & days of Statistics hospitalization

Statistics Canada (SC) reports annual Data collection deteriorated in 1983 when abortion statistics. While there are data PEI no longer reported to the TAS as quality issues regarding the reported data, abortions were no longer allowed to be the following is a review of published data performed. Then in August 1986, budget from 2004. It must be noted the available cuts at SC led to the cancellation of the data does not lend itself to analysis around TAS survey. Pressure from various sectors issues of access to care, time to care or resulted in the survey being revived in demographics such as ethnicity, income, November 1987 but with a much smaller health status, health reasons or education. budget. This impacted timeliness of data collection and data quality. History of Data Collection When abortion was removed from the The Therapeutic Abortion Survey (TAS) criminal code in January 1988, it had two started in 1969 as part of the new law significant effects upon the TAS: regulating abortion in Canada. The • The 1969 mandated data collection, law stipulated abortions could only now without a law, meant the be performed in hospitals—no clinics reporting system was no longer were operating at this time. To monitor required; and the impact of the new legislation, the • Clinics began to emerge because there federal department of Justice and Health was no longer a requirement that & Welfare required Statistics Canada to abortions could only be performed in collect, compile and publish the number hospitals. of abortions being performed in Canadian hospitals. The first report was published SC chose to treat the TAS as “voluntary” November 20, 1970. and encouraged hospitals and clinics to Representatives from Health & Welfare, SC, continue to supply data for health-related Society of Obstetricians & Gynecologists purposes. For the sake of continuity, the in Canada (SOGC) and the Canadian title of the survey continued to include Medical Association (CMA) established an the word “therapeutic” even though a individual case report form to collect a core health-related justification no longer had data set which included the following: to be provided for a woman to obtain an abortion. • Province of residence; In 1995, responsibility for data collection • Marital status; was transferred to CIHI (Canadian • Age/date of birth; Institute for Health Information) however • Previous deliveries; SC remains responsible for public

16 dissemination of the information. • Women in their 20s had the largest The following core data is currently decline in abortion rates from 25.8 for collected by CIHI: every 1000 women in 2003 to 24.7 in • Province of report 2004. • Facility information • Among teenage women the induced abortion rate was 13.8, down from 14.4 • Province of residence in 2003. The teenage abortion rate has • Age in single years declined gradually since 1996 when it • First day of last menses or gestation was 18.9. in weeks • Abortions continue to be most • Date of abortion common among women in their 20s. • Inpatient days of care They accounted for 53 per cent of all • Number of previous deliveries women who obtained an abortion in 2004. • Number of spontaneous abortions • Abortions declined in Nova Scotia, • Number of induced abortions New Brunswick, Quebec, Ontario, • Initial procedure Manitoba and British Columbia. • Subsequent procedure • Type of sterilization Pregnancy Outcomes • Complications • Estimated total number of 2004: 445,899. Statistics Canada 2004 • The overall pregnancy rate hit it lowest point in 2004 at 53.3 pregnancies per Induced Abortion Report 1,000 women. Highlights • Pregnancies declined for all age groups under 30 years of age and increased for • Fewer abortions reported in 2004 than those over 30, with women aged 35 to in 2003. 39 reporting the greatest increase. • Abortions declined in every age group except the 40+ age group, where it stayed the same.

Abortion Figures for 2004

Indicator Outcome Total Number of Abortions 100,039 Abortion Rate (# of induced abortions per 1000 women aged 15–44) 14.6 Abortion Ratio (# of induced abortions per 100 live births) 30.1 Percentage of Pregnancies Ending in Abortion (% of abortions to total # of pregnancies) 22.4

Statistics Canada Catalogue N. 11-001-XIE, July 13, 2007

17 Abortion by age group 2000–2004

120000 All ages 100000 Under 15 80000 15–17 18–19 60000 20–24 40000 25–29 20000 30–34

Number 0 35–39 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 40 & over Years Statistics Canada Catalogue N. 11-001-XIE, July 13, 2007

2004 Abortion Complications Surgical abortion is one of the safest types of medical procedures. Complications In 2004, SC based its figures on a total of from having a first-trimester abortion are 42,880 records, 86 per cent from hospital considerably less frequent and less serious data. SC also reports on second and third than those associated with pregnancy and reported complications. There were no childbirth. reports of third complications and only 0.01 reported retained products of conception (POCs), and 0.06 reported hemorrhage for second complications.

Indicator Outcome

Records with no complications reported 98.56% Hemorrhage 0.07% Infection 0.41% Pelvic damage 0.05% Retained POC’s (products of conception) 0.72% Death 0 Other 0

Data produced by Statistics Division, Statistics Canada 2007 Source: Therapeutic Abortion Survey, CIHI

18 Induced Abortions Greater than 20 Week Gestation: 2003–2004

Gestation in Weeks 2003 2004 Per cent of Greater than 20 weeks Abortions to Total Number of Abortions 0.31% 401 Greater than 20 week Abortion Rate to Total Number of Pregnancies 0.0.7% 0.08%

Data produced by CIHI, 2007

According to data obtained through CIHI, under-representation is probably higher 0.08% of abortions in 2004 were provided than the 90 per cent reported by CIHI. after 20 weeks gestation. This percentage In Ontario, non Independent Health does not support the notion promulgated Facilities Act (IHFA) facilities are not by abortion opponents that women in included in the count nor are medical Canada routinely obtain abortion care up abortions in British Columbia. More than to nine months of pregnancy. In fact, nearly half of these abortions are only reported 80% of abortions are provided during the as aggregate counts with no detailed first trimester (12 weeks) of pregnancy information. In addition, no clinic data are reported from Manitoba and the percentage Data Quality Issues of abortions performed on non-residents and those performed on in the CIHI reports the Therapeutic Abortion are unknown. Survey database represents approximately 90 per cent of all abortions performed in Canada involving Canadian residents. This means, according to CIHI, the national number of abortions would be 110,042 yet

19 20 Rights in Practice: Barriers to Available and Accessible Care

21

Abortion in Canada: From Sea to Shining Sea Sheila Dunn MD, MSc, CCFP(EM), FCFP, Department of Family and Community Medicine, University of Toronto

The Canadian Health System as a medically necessary service. The Charter ruling, however, suggests abortion Under the British Act (1867) is in fact a medically necessary service, [now referred to as the Constitution Act], and this understanding is supported by health is a provincial responsibility. From the Federal Government (under Liberal the time it was initially decriminalized in leadership), and one would argue, the 1969, and reaffirmed with the Supreme medical profession. Court ruling, abortion has been considered to be a health issue. By deduction, it Hospital Care/Community Care falls under provincial jurisdiction. The Canadian health care system is based on The provision of health services in general 13 separate provincial/territorial health is moving from hospital care providers to insurance systems that use cost sharing community care providers (including home with the federal government. The federal care, ambulatory care, and surgical centres/ government is able to exert some control clinics). Similarly, nearly half of abortion over health care funds: there are minimal care is now being provided by clinics, a conditions placed on the use of federal substantial shift from only a decade ago monies, and if provinces do not abide by when the vast majority of abortion care was the federal regulations, federal transfer provided by hospitals. While the Canada payments may be withheld. Under the Health Act guarantees public funding for system there is public payment for services physician and hospital services, many provided by physicians (known as private services (e.g. drugs, nursing care) are no service provision) and by not-for-profit longer publicly funded once outside of the hospitals. hospital (i.e. in the community). Moreover, for clinic-based abortion procedures, the Public Financing/Private Delivery physician fee is covered; however facility fees vary in terms of coverage. The (1984) defines the requirements for publicly funded Access Issues: Geography Matters services: accessibility, universality, comprehensiveness, portability and Women’s access to abortion varies public administration. It is important to according to where in Canada they live. note there is no requirement for coverage For example, women in rural and northern of drugs [pharmacologics/ medications/ areas usually have to travel long distances analgesics] used outside of the hospital, nor to receive care, and Prince Edward Island is there required coverage for “medically (PEI) entirely lacks in-province abortion necessary” services provided outside of services. Women in PEI can access funding the hospital by non-physician providers. for out-of-province abortion services; Furthermore, the Canada Health Act does however, they require referral from a not define the term “medically necessary,” medical doctor. Such barriers to access raise leaving it open to interpret what is the question of whether or not these women considered a medically necessary service, have reasonable access to these services. and more specifically, if abortion qualifies

23 In New Brunswick, only hospital-based The Prairie provinces require long travel abortions are funded, and even so, there for northern women to receive service, are several caveats: only gynaecologists can and the Territories offer only in-hospital perform abortions, they can only occur in abortions during the 1st trimester, further the first trimester of pregnancy, and then stimulating concerns over barriers to access. only once two physicians deem it medically The Territories, however, are one of the necessary. Women accessing clinic-based few regions providing travel allowance. abortions must pay the full cost. These On the other hand, British Columbia (B.C.) regulatory barriers raise significant provides more medical abortions than concerns about accessibility for the women anywhere in Canada. B.C. women also have of New Brunswick, and also raise the access to clinic-based and hospital-based question of universality in terms of the way 1st and 2nd trimester abortions and their in which the care is provided. clinic fees are covered. Similarly, there is Ontario, British Columbia and Quebec are full funding for clinic-based abortions in the only provinces with physicians who Newfoundland, Alberta, Quebec and in provide abortions past 20 weeks. Even licensed Ontario clinics. so, access to abortion services in these provinces is variable; wait lists for service vary greatly and depend on municipality, and location with very limited availability in rural/northern regions.

24 Law: Facilitating and Impeding Access Sanda Rodgers, BA, LLB., BCL., LLM, Faculty of Law, University of Ottawa

The following is a synopsis of the Power Point gestational limits. presentation given by Sanda Rodgers. A fuller • Where abortions were provided, version of this discussion may be found in doctors failed to use techniques known “Abortion Denied: Bearing the Limits of Law” to reduce complications. in C. Flood, ed. Just Medicare: What’s In, • Punitive care existed—minimal What’s Out, How We Decide, (Toronto: University of Toronto Press, 2006) and in anesthetic, breaches of confidentiality, “The Charter and Reproductive Autonomy forced sterilization. in the Supreme Court of Canada”, J Downie, • Women subjected to non-supportive ed Health Law in the Supreme Court of behavior and outright hostility. Canada, (Toronto: Irwin Law, 2007). • Stereotypes existed including irresponsibility and promiscuity. • Women had to assume the expense of Bearing the Limits of Law: travel, accommodation. Morgentaler, Abortion and • Data on abortion were not collected, Equality nor analyzed. 1. The Facts Forming the Basis • Ontario had introduced legislation of Morgentaler banning extra-billing—some reduction in abortion services resulted due to physician protest. Two reports studied the barriers to abortion access, the 1977 Badgley Report and the The Badgley and Powell reports concluded 1987 Powell Report (Ontario). These formed that these barriers impacted particularly the basis of Morgentaler following the on “socially vulnerable women—the 1969 Criminal Code liberalization. The two young, less well educated and newcomers reports highlighted the following issues: to Canada”. Powell recommended the establishment of free standing clinics • Only 20.1 per cent of hospitals had providing a full range of reproductive established TACs (therapeutic abortion health care services. At the time, Dr. Henry committees). Morgentaler was operating abortion clinics • Major delays existed in access in Quebec and Ontario. abortion. • The average abortion occurred at 16 2. Decriminalization weeks gestation. In 1988, in Morgentaler , the SCC struck • There was increased risk to women. down section 251 as violating section 7 • Women often had to pay extra and section 2 of the Charter. Both clinic financial charges between $20–$500. and hospital abortions were now legal and • Additional requirements—spousal freed from the administrative structures consent, other reports, marriage or that delayed access. The evidence provided a repeat abortion all were reasons to by the Badgley and Powell reports was key refuse abortion. to the Morgentaler decision. Both Justices • Quotas existed on numbers and Dickson and Lamer referenced these reports

25 in their judgements, citing the reports Canadian Abortion Rights Action League findings regarding delays, complication (CARAL), now Canadians for Choice. This and mortality rates, psychological injury, private NGO released a 10 year report in the number of hospitals with functioning 1998 and a 15 year report in 2003, with the committees, the definition of health, and information presented updated in the 2007 the need for women to travel or to leave report Reality Check. Canada to obtain an abortion. Justice Beetz, with Justice Estey concurring, noted 5. Current Snapshot that the reports provided the evidentiary basis to support the claim that section 251 Prince Edward Island provides no violated women’s Charter rights. abortions. New Brunswick and Saskatchewan fund hospital abortions but 3. After Morgentaler provide no funding to clinics. Quebec and Nova Scotia provide hospital abortions The Federal Government moved to but only partial funding to clinics. Alberta, recriminalize abortion. Bill C-43 was British Columbia, Ontario, Manitoba and defeated in 1991. There was provincial Newfoundland fund hospital and clinic defiance to the Morgentaler decision based abortions. In general, hospital wait however, legislation and regulations times are approximately 6 weeks. The reinstating barriers were passed, but Morgentaler Clinic in Ottawa had a 6 week subsequently also were struck down. Most wait time in the fall of 2007. This is clearly notably, there was an increase in anti- too long. abortion violence in the country. Despite Morgentaler, all the barriers previously documented remain and 4. Access After 1991— hospital access has actually decreased. Post Decriminalization A) Access A second generation of government In 2003, access to abortion was reduced sponsored reports were released from from 20.1 per cent to 17 per cent of Ontario (1992), the Northwest Territories hospitals; by 2006 access fell to 15.9 (1992) and British Columbia (1994). It per cent. Barriers such as travel, lack was ‘deja-vue’ all over again with these of information, long waiting periods, new reports repeating Badgley and gestational limits, unsolicited anti-choice Powell’s original findings. There was counseling, increased violence, fewer documentation of racist delivery of providers, and failure to train physicians abortion and reproductive health care all continue. In addition, financial barriers services and of imposed contraception and also continued, with women being charged sterilization. The young, the poor, women between $250 to $1425 to obtain an abortion with disabilities and aboriginal women, in some locations. Evidence exists of refugees and women of colour were noted partner coercion and parental consent as being particularly mistreated. There requirements. Some abortion providers was documented evidence of pressure to have voice mail systems that require a terminate a pregnancy or to use permanent woman to leave personal information. forms of contraception such as sterilization or Depo-Provera for some women. B) Hospital Closings and Amalgamations A third generation of non-governmental A number of hospital closings and (NGO) reports was released from the amalgamations of religious and non-

26 sectarian hospitals impacted access to 6. Abortion and Women’s Health abortion. From 1997 to 1998, the number of Catholic-operated hospitals grew by 11 per In 2000, 105,669 Canadian women had cent while secular public facilities declined an abortion in Canada. Two-thirds were by 2 per cent. Of the 127 hospital mergers performed in hospitals, the balance in between 1990 –1998, half resulted in the clinics. Approximately 40 per cent of elimination of all or some reproductive Canadian medical schools teach no aspect health services. of the abortion procedure, in fact more class time is devoted to Viagra than to abortion In Ontario, in 2006, 17 per cent of hospitals law, policy, procedures and pregnancy had accessible abortion services, down options combined (Koyama & Williams 11 per cent from 2003—and only one is Abortion in Medical School Curricula north of the Trans Canada Highway. In (2005) McGill J of Medicine 157). Yet access Ottawa, the hospital providing abortion to abortion is access to essential health care. services shuts down for a month in the summer. Three Ontario hospitals had the A recent American report on women’s health longest wait times to access abortion in the identified access to an abortion provider as country—Ottawa, Sarnia and Peterborough. one of four indicators of access to health care. The report listed unintended pregnancies as a C) Details of Medical Malpractice “key health condition indicator”. In contrast, the first Women’s Health Surveillance Report, The following forms of medical malpractice done for Health Canada in 2003, listed sexual were identified in the delivery of abortion health, contraception and perinatal care, services: but not abortion access, as the key health • Deliberately misleading information indicators for women. given by anti-choice doctors and The Romanow Commission on the hospital switchboard operators. Future of Health Care in Canada opposed • Withholding a diagnosis of pregnancy. privatization, but “abortion” appears • Threatening to withdraw services from only once in the 357 page report, in a the family. string reference to for-profit clinic service • Failing to provide appropriate provision. Abortion, arguably the leading referrals. example of privatization, was not evaluated by Romanow for benefits and deficits, • Delaying access. nor was the impact on specific women’s • Mis-directing women to anti-choice constituencies considered. organizations. Women have the least to gain from for- • Providing punitive treatment. profit private parallel health care systems These are all examples of medical because they lack autonomous household malpractice and violate the CMA Code income, have fewer financial resources, are of Ethics prohibiting discrimination less likely to have health coverage through on gender, marital status and medical paid work, and are more likely to be poor. condition. They also breach the self Ironically, access to abortion services is regulatory requirements of Provincial so compromised that it is privatization Medical Colleges. In a British Columbia that resulted in increased access to some decision, the College may be sued where a women in some provinces — particularly doctor knew or should have known that a to women with financial resources— doctor is engaging in medical malpractice disproportionately white, middle class, and fails to investigate. educated women in urban areas.

27 7. Charter challenges and governments that increase risk. We have descriptions of interference with Two recent and successful challenges—in women’s security of the person, equality Manitoba and in Quebec—forced those and freedom of conscience. We know provinces to reimburse the cost to women that some women—aboriginal, disabled, who accessed clinic abortions at their racialized, rural, poor, immigrant and own private expense because of delays young—bear an even greater share of the associated with hospital based abortions. burden. At the time of this symposium, a New Discriminatory delivery of medically Brunswick challenge to the refusal to fund necessary health services needed only clinic based abortions was pending. by women is sex discrimination. Where discriminatory delivery of medically 8. Continuing Legal and Other necessary services disproportionately Impediments impacts racialized, immigrant, aboriginal and poor women, it violates s. 15 of the Anti-choice activists remain active in Charter on grounds of race and citizenship. Canada. One prime example is the Parliamentary Pro-Life Caucus. There is a Charter protections have proven elusive at history of private members bills of which best for Canadian women. The costs, delays the most recent (sic) is only the latest—Bill and lack of public funding for further legal C-484 Unborn Victims of Crime Act. In the challenges, and the limited impact of the 2006 election, there were 90 declared anti- victories, suggest that it is women who will abortion members in the Liberal (16) and continue to bear law’s limitations despite Conservative (74) parties. Nine of the 26 their right to law’s protection. For women Cabinet Ministers in January 2008 were who find themselves pregnant, access anti-abortion and an anti-abortion member delayed is justice denied. was named as Parliamentary Secretary to the Prime Minister and to the Minister of Finance. 25 Despite more than 105,000 annual abortions occurring in Canada, we cannot conclude that women who would choose or have no choice but to terminate their pregnancies are able to do so. Women are unable to terminate pregnancies in accordance with their own needs and aspirations. Thirty years after Badgley and twenty years after Morgentaler, ineffective and insufficient provision of abortion services continues to violate women’s Charter equality protections. We have detailed reports of multiple gatekeepers, provider malpractice and delays by professionals

25 John-Henry Westen, Nine Pro-life Members of Parliament in New Candian Government Cabinet” Feb 6, 2006 http://www.lifesite.net/ ldn/2006/feb/06020603.html

28 Better Never Than Late, But Why? The Contradictory Relationship Between Law and Abortion Shelley A. M. Gavigan, Osgoode Hall Law School, York University

I am honoured to have been invited to be this generation of law students about this a panelist in such distinguished company decision and its importance? One has at this important event. I am particularly to hope that they are not relying on the attracted to the invitation in the title of mainstream media for their introduction— the Symposium to reflect upon the 1988 or misinformation—about the Morgentaler decision of the Supreme Court of Canada case? Clearly this Symposium is an in R. v. Morgentaler.26 In reflecting upon important event, intended as it is to re- the case, its significance and legacy, I want insert abortion and on to talk about the importance of history, our collective agendae. the contradictory nature of law and the I was speaking last week about today’s enduring importance of ideology. Symposium to a friend who graduated I take this liberty of insisting upon the from Law School in 1989. She said her time importance of historical experience and at law school was marked by preoccupation perspective and I do so because I am of the with the issue of abortion law and that view that it is due entirely to my historical, for her and women law students of her as opposed to current, engagement with the generation, the 1988 Morgentaler decision critically important issues of abortion and was a defining moment of victory. I law that I have been honoured with this remember it so well, and so personally. invitation. On the early evening of January 28, 1988, almost two weeks after our daughter’s first Reflections on the Importance birthday celebration, we had bundled her of History into her stroller and joined hundreds of kindred spirits in a spontaneous rally in I was reminded recently of the importance front of the then still standing Morgentaler of history and how quickly something clinic on Harbord Street in Toronto to “becomes” history by my own lapse in celebrate the decision of the Supreme Court precision: I asked my research assistant historic decision. Women, abortion and to pull the Supreme Court’s Morgentaler law had become the issue around which decision for me, which she dutifully did: I politicized when I embraced the Supreme Court’s in my twenties, to the great chagrin of 1993 decision.27 Of course, this was my my Irish Roman Catholic father and my fault—I had not been clear enough. But French Roman Catholic mother who was a it then occurred to me that my smart maternity ward nurse. For the next twenty feminist research assistant may not have years my political and academic work known there had been other, indeed, a focused on abortion. As a law student in few other, Morgentaler decisions.28 To my a seminar on Advanced Administrative feminist colleagues in the academy I ask, Law, I tried to research the processes are we confident that we are teaching and practices of therapeutic abortion committees in Saskatchewan hospitals. This 26 [1988] 1 S.C.R. 30; [1988] SCJ No. 1. 27 R v. Morgentaler [1993] 3 S.C.R. 463 proved to be difficult research, as it was 28 e.g. Morgentaler v The Queen (1975) 30 C.R.N.S nigh unto impossible to find any working 209.

29 committees. Like many Canadian feminists The historical record of coercive and of my class and generation, I marched in restrictive abortion law in the Anglo- countless International Women’s Day and Canadian context is filled with relatively pro-choice demonstrations. Who can forget few criminal prosecutions and far more how cold our feet got in those frosty March expression of women’s resistance. One 8 marches on Women’s Day before the need think no further in our recent history arrival of global warming? We marched and than of an ordinary young woman, Chantal carried signs that demanded the state get Daigle, thrust unwillingly into the national its laws off our bodies, repeal abortion law news in 1989 when her former boyfriend and drop the charges, again and again and attempted to prevent her from terminating again. her pregnancy—neither the first nor last I studied the legal history and context of the man to attempt to do so, neither the first 31 criminalization of English abortion law, the nor last man to fail in the Canadian courts. genesis of the statutory prohibition in 1803, During that summer, under the watchful the demise of the relevance of eyes of an entire nation, Daigle resisted and the ousting of the of matrons, and her former boyfriend, the Canadian anti- the extension of the criminal law’s scope choice movement, the courts, among over the entire period of pregnancy.29 I others. Daigle reminded us that “women’s studied the issue of the criminal liability individual and collective struggles for of the non-pregnant woman attempting choice and self-determination may have the self-induce a of a non- been constrained, but have never been existing pregnancy which took me into the wholly confined nor determined by the snakes and ladders of the law of impossible legal and judicial processes.”32 attempts. But, there was not much ‘action’ in the criminal cases—one encountered The Contradictory Nature of Law abortion in criminal legal history principally in homicide, where a woman It was also in this work into the social had died, and her lover, friend, doctor, and legal that I began was prosecuted for willful . to develop an understanding of the contradictory nature of law, including When I turned to social history and criminal law, and what I later characterized women’s history, I found a different story. as the “fragile, incomplete and Indeed, it was in the course of this research contradictory” nature of legal victories,33 that I learned my most profound political including the decision we are invited to and intellectual lessons: to appreciate the reflect upon today. As but one illustration, importance of women’s agency and self- determination, and the ways in which in bringing on the menses’: The Criminal Liability the abortion context they had defied the of Women and the Therapeutic Exception in law and medical men: I found the voices Canadian Abortion Law” (1986) 1 C.J.W.L. 279. 31 Daigle v. Tremblay [1989] 2 S.C.R. 530; for of women who said to doctors, “Nonsense, earlier unsuccessful ‘father’s rights’ injunction doctor, there is no life yet…” and “Doctor, I applications in Canada, see Whalley v. Whalley et al do not believe it is a crime.”30 (1981), 122 D.L.R. (3d) 717 (B.C.Co.Ct); Medhurst v. Medhurst et al (1984), 9 D.L.R. 252 (Ont.H.Ct.). For a later one, see Murphy v. Dodd (1999), 63 29 Shelley Gavigan, “The Criminal Sanction as it D.L.R. (4th) 515 (Ont.H.Ct.). Relates to Human Reproduction” (1984) 5 J. 32 Shelley A.M. Gavigan, “Morgentaler and Beyond: 30 see Shelley A.M. Gavigan, The Abortion Prohibition Abortion, Reproduction and the Courts” in and the Liability of Women: Historical Development Janine Brodie, Shelley A.M. Gavigan and Jane and Future Prospects (Master of Laws thesis, Jenson, The Politics of Abortion (Toronto: Oxford Osgoode Hall Law School, York University, 1984) University Press, 1992) 117 at 146. at 96-97. See also, Shelley A.M. Gavigan, “‘On 33 Ibid.

30 the 1969 introduction of the therapeutic campaigns, days of action, struggles to get exception in the Canadian criminal the sisters in the early days of National code had at least one surely unintended Association of Women and the Law to take consequence; in casting abortion as a a pro-choice position—I hope I will be medical matter, the law inhibited husbands indulged for saying simply that after years who went to court—prior to 1988—to of struggle—reading Chief Justice Dickson’s attempt to prevent their wives from and Madam Justice Wilson’s words made terminating their pregnancies.34 This is one one a bit lightheaded: small instance, in my view, of the law not Forcing a woman, by threat of criminal only mediating but inhibiting patriarchal sanction, to carry a foetus to term unless relations. In many ways, the legal history she meets certain criteria unrelated to of abortion taught me most of what I ever her own priorities and aspirations, is a learned about women, law and the state, profound interference with a woman’s about law and patriarchal relations, and body and thus a violation of her security law’s contribution to social change. of the person.35 But back to the evening in January Theoretically, I take the view that law is a twenty years ago—as we left the rally on social form in and through which social Harbord Street and walked back to our relations are mediated and expressed. But car, we encountered a small, disgruntled, with respect to abortion, I look outside venomous group of anti-choice women. the law to civil society. I do acknowledge Looking at the baby in the stroller, they legal abortions tend to be safer than illegal hurled an epithet at us, one that embodied abortions. And so I am not agnostic about all the contradiction and hatefulness of the efficacy of legality and its importance their self-proclaimed pro-life stance: “Why as a foundation for safety and access—it is didn’t you abort that one?” I had never most assuredly a necessary but insufficient doubted their commitment to life was precondition. confined to the invisible and unborn, but in that moment I came to appreciate that their In the area of abortion, Canadian women hatred and disrespect for women extended have experienced many legal victories in to living and breathing children. Canadian courts, some by the skin of their teeth, some at the hands of judges who are The historic Morgentaler decision was more grudging than others, with dissents but the first of many legal defeats their that give cause for alarm. movement would experience in Canadian courts. But, the experience of the last twenty years suggests their defeats at the The Importance of Ideology hands of the law have not been fatal. As I It is now axiomatic to observe the Supreme have suggested elsewhere, it takes more Court’s 1988 decision resolved some than “feeble law reform and litigation” to questions but left many more dangling— defeat patriarchal institutions, practices and tantalizing and inviting to the opponents of relations. women’s right to choose. For instance, the I am happy to leave close analysis of precise nature and expression of what all the Supreme Court decision to the judges of the Supreme Court characterized Constitutional scholars. Suffice it to observe as the “state’s interest in the foetus” that as a feminist activist and veteran remained to be elaborated and tested. of marches, all-candidates meetings,

34 E.g. Medhurst, supra note 7. 35 Morgentaler (1988), supra note 4 at 408.

31 Long-time anti-choice renegade, Joe imagination and tap the anxiety of people Borowski, had been granted standing who are receptive to the notion that by the Supreme Court in 1981 to bring pregnant women are capable of extreme an action challenging the validity of the acts of selfishness and irresponsibility. therapeutic abortion amendments to the The foetus is presented as helpless and Criminal Code in the name of foetal legal vulnerable, the most innocent of innocent .36 He lost the foot race with victims. Again, what is striking is that Morgentaler to the Supreme Court, and by this campaign has been so successful the time he reached the Court, the abortion without significant support in Canadian section of the Code had been struck down, law for its fundamental underlying and his appeal was dismissed as moot.37 premise: that the foetus is a person with 40 Still, the discourse of the ‘unborn child’ legal rights. began to appear in the judgments, and But, as Rosalind Pollack Petchesky argued is now ubiquitous, even as the Courts with prescience in the American context,41 resisted the claims advanced in favour the legalization of abortion contributed of foetal legal personhood and so-called to the ascendance of an aggressive anti- father’s rights.38 Having lost the legal fight abortion movement, one that has continued in the context of criminal law and access to organize in the churches and religious to abortion, anti-choice advocates looked schools. Their discourse of the unborn child to other legal forms, such as child welfare, has become a dominant ideology of our to advance their cause. In 1996, they found time. Their ability to present all pregnant what they surely believed to be the poster women as risky, possibly irresponsible, child for foetal rights in the pregnancy of always potentially hostile to their own a poor pregnant woman addicted to glue, pregnancies, has in my view become who had lost three children to child welfare pervasive and I believe socially shared. So, apprehension, and who refused to stop and rather than speak of maternal mortality, refused treatment.39 or of women’s inherent dignity, of the The child welfare agency sought a complexity of the abortion decision, never declaration that the superior court’s not a complex decision, never an easy 42 inherent parens patriae jurisdiction over choice, or of sexual coercion, they assert children extended to “unborn children.” only a chorus of the unborn child in a self- And they lost, taking comfort from a impregnated woman. dissent by Justice Major that my Children and the Law students thought was right on.

In 1992, I wrote, 40 Gavigan, supra note 8 at 132. 41 Rosalind Pollack Petchesky Abortion and a The potential cultural and political Woman’s Choice: The State, Sexuality and successes of the foetal rights movement… Reproductive Freedom (Boston: Northeastern lie in its ability to both capture the University Press, 1985). 42 See Wilson J. in Morgentaler (1988), supra note 2 at para 242: The decision is one that will have 36 Borowski v. Minister of Justice of Canada and profound psychological, economic and social Minister of Finance of Canada (1982), 39 N.R. 331 consequences for the pregnant woman. The (S.C.C.). circumstances giving rise to it can be complex 37 Borowski v. Canada (Attorney General), [1989] 1 and varied and there may be, and usually are, S.C.R. 342 (S.C.C). powerful considerations militating in opposite 38 e.g. R. v. Sullivan, [1991] 1 S.C.R. 489; see also directions. It is a decision that deeply reflects Daigle v Tremblay, Murphy v Dodd, supra note 7. the way the woman thinks about herself and her 39 Winnipeg Child and Family Services (Northwest relationship to others and to society at large. It is Area) v. G. (D.F), [1997] 3 S.C.R. 925. not just

32 The law is implicated in the ideology of the the broader context of women around the unborn child, but it seems to me that some world who are struggling under adverse of its currency and legitimacy derives from conditions to deal with unintended its opposition to the law—as a form that pregnancies. A recent study by Gilda needs to be protected, and the law is not Sedgh and her colleagues, published in doing that. I take the view that ideologies Lancet,45 found that 48 per cent of all become dominant not necessarily through abortions worldwide were unsafe and law and occasionally in opposition to that 97 per cent of all unsafe abortions law, but emergent as well as dominant were in developing countries—so many ideologies may nonetheless be imported or of the world’s women have access only incorporated into law. When I last wrote to unsafe abortions, if they have access about abortion fifteen years ago (hence my at all. I am neither a Constitutional Law commitment to an historical perspective nor International Law scholar. Currently I today), I wrote that the strongest weapon am interested in legal history of criminal in the arsenal of the anti-choice movement law, but I know something of the historic had not yet proven to be a legal one—and I struggle of women to control their fertility continue to hold that view. against the odds of men, medicine the I am mindful that the Symposium’s state, the law and religion. Is it at all dedicated organizer, Dawn Fowler, would surprising that women have always had have liked me to discuss the dilemma of to resist and challenge their relegation to the dearth of availability of late trimester social invisibility as moral agents? But abortions in Canada—and this I have not feminists have long known that there are 46 done. But I do want to make the point that no easy victories, certainly not in the area ideologues like David Frum43 attempt to of reproductive health, and we have the cultivate in the national imagination that expertise in this area, in this room, starting late trimester abortions are a ubiquitous with the person sitting next to me. menace, a direct legacy from Madam I do struggle with how to engage with Justice Wilson’s courageous reminder of the the dominant ideology of the unborn limits of men to be able to respond—‘even child. But there are some lessons that can imaginatively’—to something so out of be drawn from historical reflection. For his personal experience.44 It is difficult to me, it is important to remember the most discern even a kernel of truth in David meaningful victories, especially those Frum’s construction of the crisis– for the derived from law, need to be extended world is truly upside down through his and experienced outside the four corners lens. The image of the scourge of late of the courtrooms, and celebrated beyond trimester abortion could not be further from feminist circles, especially feminist legal the truth, and yet it is asserted as truth. Increasingly, I believe we must situate 45 Gilda Sedgh, et al, “Induced Abortion: Estimated Rates and Trends Worldwide” (2007) 370 Lancet the struggle of Canadian women within 1338 at 1342 (www.thelancet.com). Unsafe abortions are defined as “Abortions done either a medical decision: it is a profound social and by people lacking the necessary skills or in any ethical one as well. Her response to it will be the environment that does not conform to minimum response of the whole person. or medical standards, or both. These include 43 David Frum, “The Morgentaler Decision (a) abortions in countries where the law is Cheapened the Worth of Human Life” http:// restrictive and (b) abortions that do not meet legal network.nationalpost.com/np/blogs/fullcomment/ requirements in countries where the law is not archive/2008/01/21/david-frum-the-morgentaler- restrictive” (at 1339). decision-cheapened-the-worth-of-human-life. 46 Kathleen McDonnell, Not An Easy Choice: A aspx. Feminist Re-Examines Abortion (Toronto: The 44 Wilson J, in Morgentaler (1988) supra note 2. Women’s Press, 1984).

33 circles. For twenty years prior, leading up In closing, my last thought is this—if to the Morgentaler decision, women activists we acknowledge the current ascendant and their allies made abortion a public, discourse is one of the unborn child, then political issue in Canada, starting with the we as feminists and supporters of choice Abortion Caravan in 1969. Dr. Morgentaler for women must re-insert the women in the lent his name, his professional reputation, social vernacular, and start again from the his career and indeed his life to the support premise that the pregnant woman and the of this important campaign. But it was unborn child speak with one voice, and that never just about the law. It was about and voice is hers. for Canadian women.

34 Information Failure: An Ontario Case Study Lorraine E. Ferris, Faculty of Medicine, University of Toronto

This is a synopsis of the Power Point • No SAAS study data contained personal presentation given by Lorraine Ferris. patient identifiers—a unique encrypted patient identifier is used to link data. Why Do We Need Information • Complete data from the Ontario About Abortion Services? Abortion Database (JB06) was only available until 1997; this information Information about abortion services has was collected and maintained by the several uses such as: (Ontario) MOHLTC. • To examine if women have access to • Information was sourced from abortion services in their geographic standardized physician case reports area; (no patient or provider identifiers were • To understand if access is timely; provided). • To plan services and programs; and • The database contained information on both hospital (1985–1997) and clinic • To ensure quality of care. abortions (1992–1997). Detailed patient The focus of this presentation is on demographic and clinical information information gaps concerning provincial were available, including: information from administrative/registry – Age, marital status, county of databases. The information contained in residence; and this presentation has resulted, in part, from the Studies on Access to Abortion Services – Initial and subsequent surgical (SAAS), funded by the Ontario Women’s procedure, , Health Council through full funding subsequent complications (if from the (Ontario) Ministry of Health applicable), number of days in and Long-Term Care (MOHLTC). SAAS hospital (if applicable), number of Study 1 describes Ontario abortion services previous abortions/deliveries (if (1994–2005) by examining utilization applicable), facility type. patterns, distribution of abortion services and complication rates in the province by Data Limitations geographic area. • Data did not contain patient identifiers or encrypted universal patient SAAS Study 1 identifiers, thus there could be no • SAAS Study 1 was conducted at record linkage with other databases the Institute for Clinical Evaluative which: Sciences (ICES): ICES is named as – Limits examination of longer-term a prescribed entity in the [Ontario] complications or follow-up care; Personal Health Information and Protection Act. – Limits examination of access • SAAS is subject to ICES policies/ issues / barriers as only “county” procedures and falls within information is available. understandings/agreements between the (Ontario) MOHLTC and ICES.

35 • The accuracy and completeness of • They can be linked to other databases the data was dependent on physician using an encrypted patient identifier. diligence. Data Limitations Data Post-1997 • There is no standard definition for a “complication”. • The Ontario Abortion Database was discontinued after 1997 and there is • The data is by hospital and not by lost information for 1998. physician; therefore it cannot be linked to any other database to obtain • Post-1997, a number of administrative physician information. databases must be used to gather this information. There are both pros and • Key information is missing for some cons to this change. years (e.g. gestational age). • There are specific problems with the Context Canadian Classification of Health • Over the ten year study period covered Interventions (CCI) system (e.g. use of by SAAS, there was a distinct trend to laminaria). non-hospital abortions. In particular, • Changes to the definition of day a trend away from same-day hospital surgery/surgical day/night care make abortion procedures. comparison difficult over time. • However, after 1997, most of the • Changes to the diagnosis and detailed information available procedure coding systems. (ICD- concerns hospital-performed 9/CCP to ICD-10/CCI) impact procedures. longitudinal trend analyses.

Hospital Abortions Post-1997 Free-Standing Abortion Clinic Abortions • The Canadian Institute for Health Post-1997 Information (CIHI) and the National • After the discontinuation of the Ambulatory Care Reporting System Abortion Database, the only (NACRS) databases collect data on: information available for non-hospital – Inpatient Abortions—CIHI abortions is from the Ontario Health Discharge Abstracts Database Insurance Plan (OHIP) billing records. (DAD) • SAAS use of OHIP includes the use – Outpatient Hospital Abortions— of encrypted patient identifiers which NACRS, CIHI Same Day Surgery provide some linkability. (SDS) Database Data Limitations • These databases provide a reasonably complete picture of hospital abortions, • OHIP data undercounts the number of such as: abortions. – Patient age, postal code, • OHIP data is very limited with respect gestational age, past history of to clinic abortions (e.g., only that the therapeutic and spontaneous procedure occurred). abortions, procedure(s) performed, • Records must be linked to other co-morbidities, immediate databases to learn more about the complications, length of stay, and abortion. hospital.

36 – Demographic information (patient Addressing the Gap age, postal code) available from • SAAS is supplementing the the Registered Persons Database information from the administrative (RPDB) but postal code may be databases through primary data out-of-date collection (i.e. surveys of hospitals and – No information about gestational clinics). age, parity, number of previous • The studies within SAAS will provide abortions/ spontaneous abortions a comprehensive picture of abortion • The utility of OHIP fee codes in services in Ontario. determining the method of termination • Ontario needs a more permanent is limited. solution to this information gap. • Information on out-of-hospital Gaps in Abortion Information abortions needs to be collected • There is virtually no information on routinely using a standardized form out-of-hospital abortions since 1997. with clear definitions. – Major gap as these represent • This information should be available the majority of abortions in the by site and comparable to information province; we have for hospital abortions. – Cannot provide a complete picture • We believe sites performing abortions of Ontario abortions. may be the best catalyst for this change. • This means one cannot fully examine accessibility and timeliness because • Still, there are no simple solutions information on gestational age is and moving forward will require lacking. practitioners, lawyers, policy-makers, and others to work together to address • There is a lack of information the information gap. necessary to examine predictors of complications for all Ontario abortions. (e.g., gestational age is not available).

37 38 Our Providers: The Challenges of Their Work

39 40 Challenges of Providing Abortion Care: A Provider’s Perspective Konia Trouton MD, CCFP, FCFP, MPH, Vancouver Island Women’s Clinic

Providing abortion care in 2008 in Canada weeks gestation, but the clinics had a stable still has political, economic and regulatory group of providers. During the three years challenges. Because the existing facilities in Vancouver, I flew to Toronto one-to-two and provider numbers seem to be fairly times a month to keep up my skills. I have stable, this also poses challenges to enhance since met and trained other providers who abortion care, and to allow new providers have been unable to get enough work in to obtain and maintain experience in abortion care, and have moved onto other the field. Education about abortion has more stable forms of work. improved, but we have not yet made our When the opportunity came up in Victoria, profession in abortion, or in reproductive due to the retirement of the main provider health, part of mainstream medicine either there, I saw the chance to set up a women’s by regulation or certification. clinic. This was not as easy as I thought I want to start by highlighting a few of the and sometimes I am naive. What existed small “p” political challenges of abortion, as five years ago was dedicated hospital time my legal colleagues have spoken to many of for 20–30 procedures per week in the first the federal, provincial and inter-provincial trimester, and under general anaesthetic. issues. I have encountered many political This dedicated operating time for abortion challenges in trying to enhance abortion is unheard of in most of Canada. However, care—so I am going to use the experience this provider worked alone, did all her own of my clinic in Victoria as a case study to counselling and follow-up, and was a target highlight some of these issues. for some anti-choice activity. I have had the privilege of working on staff I sought to find family physicians who in 15 different facilities providing abortion would be excited to have me work care in five provinces and territories in alongside their practice, offering surgical Canada over the past 15 years. From this abortions, medical abortions and IUD care. experience, in 2003, I started working to Strangely enough, there are not many of establish my own clinic in Victoria. those types of clinics, or doctors. I called I came to Victoria believing that in the new the local clinic, and their millennium, abortion care should be linked board did not want me to work, even to related women’s health issues for two main just a day a week, doing pre-operative reasons: 1) to provide more comprehensive abortion assessments and scheduling the care to women who seek abortions, and 2) abortion in the hospital. Paradoxically, they to mainstream abortion practice within a supplied many referrals for abortion and women’s health care framework. In other provided after care. They were much more words, I wanted to set up a women’s clinic vigorously opposed than I ever expected, that included abortions, and not have a clinic and while I continued to work there once that focused only on abortions. a week doing IUD insertions, I knew to look elsewhere for office space. I called For the three years prior to that, I was some physician colleagues in the peace and based in Vancouver, but was unable to find justice movement, whom I knew for many more than a day and a half a week work in years, and I called some alternative health abortion care. When I came to BC, I had 10 care facilities, but the doors were shut for years experience in abortion care, up to 20 office space.

41 I eventually found a clinic home with three Speaking only about the gynaecology physicians who agreed abortion is part committee, we review complications of normal women’s health and could be brought to our attention from the nursing integrated alongside their family practice staff, unexpectedly long lengths of stay, and and obstetrics care. Once I started doing surgeries that have generated complaints. surgical abortions (MVAs) in the office In addition, it is unusual that a family and offering medical abortions, they were physician is on the gynaecology quality anxious but remained with me for three assurance committee. years, taking call for patients at night. As a family physician, my privileges come However, while I was able to see their from the family medicine department, not family practice patients, I still had no gynaecology, even though gynaecology clinical back up from them—they would theoretically reviews quality of not provide methotrexate for the medical gynaecological surgery. I had to have my abortion and did not plan to learn how to D&E ability assessed by a gynaecologist at do an assessment prior to an abortion. It the hospital who does not do D&Es. So, as was not a true collaborative practice. At that a family physician doing abortion work, I time, I also talked to the physicians at the could fall through the crack of having my birth control clinic about doing abortion work fall between two departments. In the assessments in our clinic while I worked end, the physician with the complications in Vancouver or was away. After calling voluntarily retired, and the committee each of the 12 doctors, two agreed, but they continually tells me they appreciate my only lasted for a few months, and never involvement. This year, the hospital is expressed interest in learning how to do the putting together an application for the procedure. National Abortion Federation (NAF) so During those first three years, I felt that they can become accredited as an constrained by the restrictions of the institution. hospital because they only permitted first In the hospital, abortions are part of the trimester abortions and all were done regular day surgery case load, so women under general anaesthetic. I was traveling are surgically prepped in one area, sent to once too often on the ferry with patients the OR, and moved to the Recovery Room whose laminaria I had inserted, and we alongside those receiving other care—in were both going to one of the Vancouver orthopaedics, neuro-surgery, general clinics so that I could do her dilation and surgery and gynecology. I am assigned evacuation (D&E) there. I worried about the to work with one of the 20 anaesthetists risks and costs to women travelling under and three of the 60 Operating Room (OR) these conditions and lamented about the nurses daily—different ones every day. inefficiency. Remember, the nurses in general hospitals In the first year there were also some have not done the patient counselling challenges with two other providers who prior to the abortion, they did not come to did three-to-four abortions per month, work necessarily because they care about and who had increased their volume in choice, they do not necessarily work in the six months before I started. It became that hospital because we do abortions—for apparent that the complication rate was the most part they are just doing their about 30 per cent. It may seem odd to you, job. All this led me to reflect that a better but the hospital does not generate annual model could be provided, and old dogs can statistics on each type of surgery for the learn new tricks. I work in some hospitals quality assurance committees to review. in Canada that have a separate floor or

42 wing where abortions occur, including clinic, needed bigger space, and needed counselling, and I was resistant to repeat accreditation from both the National that model, as it moves abortion care again Abortion Federation and the College of out of the realm of normal women’s health, Physicians and Surgeons. This meant a and can stigmatize it further. It is also a lot of work creating manuals and seeking more costly model of care compared to help from the clinics in BC and Alberta, clinic care or integrated hospital care. and from colleagues at the hospital. I found So, first, my challenge was to work on clinic space in a professional building the anaesthetists. Physicians are a one- where several family physicians, and on-one crowd, I have concluded, and yet also two worked—they were I have been thinking that in the public supportive of choice and wanted to work system, we are all of a similar training and together. However, one of the family subscribe to a similar ethical code. Over physician groups which does high volume the last five years, the 20 anaesthetists obstetrics tried to block our purchase. She have all managed to switch from general contacted all the other owners, told them I anaesthetic to their own particular version was an “abortionist” and that they should of monitored anaesthetic, or conscious stop the sale. Fortunately, the pharmacist, sedation, that those of us in the abortion the other groups of family physicians and clinics are familiar with in name. Only two the specialists did not mind, and were anaesthetists will not work with me, and extremely welcoming when the sale went a few nurses. Moving to D&E required through. some gradual work, first to 16 weeks, and Since then, I have been able to work on that then six months later to 20 weeks. I led one extremely hostile relationship and she some group sessions with the nurses in all has recently referred a few patients for post areas—pre-operative assessment, operating partum IUDs and even one woman who room and recovery—having the sessions had a lethal anomaly needing D&E. Our both before and after the change in practice. accreditation with NAF went through in The nurses responded really well in groups, 2004 and our College approval in 2006, so and seemed to find it helpful sharing now we are the only NAF approved clinic stories. So, while no one is legally obligated on Vancouver Island and a designated to explain or justify why a woman seeks an non-hospital surgical facility. We can do abortion, many health care workers find it abortions, but we are not yet funded, easier to care for women as a group when so women pay for the medications and they know some of the inside stories like disposable equipment needed. The family the failed IUD, the fiancé who was found physicians moved out a year ago due to our cheating, the fifth pregnancy to a couple need for space, and the midwives stayed. struggling financially to raise four children, The clinic now offers care for unplanned the holiday without the pill, the genetic pregnancies, wanted pregnancies and anomaly…all the stories those of us in the women seeking contraceptive management field know. Once they realize why I do and well women examinations. We what I do, they have been supportive to any have a solid presence in the community efforts to keep the wait list down. as a woman’s health clinic. We are So, back to my space issue and wait list. By now the referral point for Vancouver increasing my gestational limit and making Island for pregnancy terminations—the clinics up Island aware of our services, gynaecologists refer to me for the D&Es for our volume was increasing. I realized that anomalies and over half of the women are I had to start offering more abortions in a from outside Victoria. While I do three-

43 quarters of our work with women seeking supportive of non-hospital management of termination, I also do many IUDs, many abortion. With some struggle and two years well women assessments and endometrial of negotiating, we are able to do our own biopsies. Women coming to the clinic may blood testing at the clinic. However, while be seeing the midwives for care, me, or the the hospital recognizes this and supplies us nurse practitioner. with WinRho, they will not accept our Rh There has never been any problem in the test results, so women needing a hospital waiting room, or reflected in the patient abortion must attend the lab in the hospital evaluations women fill out at follow up. In at least two days prior to her abortion. The fact, many in the midwifery community blood issue is one shared by most clinics and regularly refer to the Clinic for post this delicate partnership with the local blood partum IUDs, for prolonged bleeding bank is usually not worth tampering with. post delivery, for management of fetal The current goal is to get total coverage for demise, and for fetal anomalies. Even the all the costs to women. Two years ago the anti-abortion members in that group have hospital put out a Request for Proposals acknowledged their clients receive good (RFP) for outsourcing surgical services. It care and are pleased with their visit. Some was a general call for all types of surgery women, therefore, come to the clinic and and while abortion was not specifically never know that we do abortions. The mentioned, nor were D&Cs, we applied. midwives share the view that the woman After hearing nothing back for over a year, is central to all care and want to manage earlier this month we started fleshing out normal women’s health in the community the details of a contract. rather than in a tertiary care hospital. They Looking back, my goal was to set up a appreciate that not all wanted pregnancies woman’s health clinic that included fully result in a live birth, and these women need funded abortion care. There have been care as well. many challenges but when I look at why This unexpected alliance led me to think this has been a successful story, it is because about working with other disciplines in it has been about establishing trust and health care. I have trained midwives, nurses, working across disciplines. I have worked members of the sexual assault team, and hard to get to know the hospital staff, the nurse practitioners in addition to the usual health authority personal and invited them host of medical students, residents and some into the clinic to see the work done and physicians. One of the nurse practitioner to convince them the clinic and hospital students suggested I apply for provincial partnership benefits them in reducing funding for a three year grant to involve a wait lists, costs and increasing training Nurse Practitioner (NP) in a fee-for-service opportunities and retention of excellent practice. I applied, argued my case for the staff. clinic, and for women of Vancouver Island, Here are some big picture questions for and I now have a full time NP who can you, although you may have some of your do counselling, education, follow up and own: well women examinations. Her salary and a contribution to overhead is paid by the • How do we evaluate if there really is a regional health authority. This was our first provider shortage? breakthrough in getting any funding. • How do we address issues of rural care, both the quality of that care and A few people have appeared to block the maintenance of skills? progress toward outpatient care of abortion. The head of the blood bank was not

44 • What is the relationship between birth control clinics and abortion providers? • How can changes be brought about in hospital based care? • How can we lobby for funding—is interdisciplinary partnership the way of the future?

45 Why Do I Do This? Being a Provider Garson (Gary) Romalis MD, FRCSC, FACOG, Elizabeth Bagshaw Women’s Clinic, Vancouver

I am honored to be speaking today, and it’s hard to believe now, but in those days honored to call Henry Morgentaler my they had one ward dedicated exclusively to friend. I have been an abortion provider septic complications of pregnancy. About since 1972. 90 per cent of the patients were there with Why do I do abortions, and why do I complications of septic abortion. The ward continue to do abortions, despite two had about 40 beds, in addition to extra murder attempts? The first time I started beds which lined the halls. Each day we to think about abortion was in 1960, when admitted between 10–30 septic abortion I was in second year medical school. I was patients. assigned the case of a young woman who We had about one death a month, had died of a septic abortion. She had usually from septic shock associated with aborted herself using slippery elm bark. hemorrhage. I will never forget the 17-year- I had never heard of slippery elm. A buddy old girl lying on a stretcher with 6 feet of and I went down to skid row and without small bowel protruding from her vagina. She too much difficulty, purchased some survived. I will never forget the jaundiced slippery elm bark to use as a visual aid in woman in liver and kidney failure, in septic our presentation. Slippery elm is not sterile, shock, with very severe anemia, whose life and frequently contains spores of the we were unable to save. Today, in Canada bacteria that cause gas gangrene. It is called and the U.S., septic shock from illegal slippery elm because, when it gets wet, it abortion is virtually never seen—like Small feels slippery. This makes it easier to slide Pox, it is a “disappeared disease”. slender pieces through the cervix where I had originally been drawn to obstetrics they absorb water, expand, dilate the cervix, and gynecology because I loved delivering produce infection, and induce abortion. babies. Abortion was illegal when I trained, The young woman in our case developed so I did not learn how to do abortions in an overwhelming infection. At autopsy my residency, although I had more than she had multiple abscesses throughout my share of experience looking after illegal her body, in her brain, lungs, liver, and abortion complications. In 1972, a couple abdomen. I have never forgotten that case. of years after the law on abortion was liberalized, I began the practice of obstetrics After I graduated from University of and gynecology, and joined a three-man British Columbia School of Medicine in group in Vancouver. 1962, I went to Chicago, where I served my internship and Obstetrics/Gynecology My practice partners and I believed residency at Cook County Hospital. At that strongly that a woman should be able time, Cook County had about 3000 beds, to decide for herself if/when to have a and served a mainly indigent population. If baby. We were frequently asked to look you were really sick, or really poor, or both, after women who needed termination of Cook County was where you went. pregnancy. Although I had done virtually no terminations in my training, I soon The first month of my internship was spent learned how. I also learned just how much on Ward 41, the septic obstetrics ward. Yes, demand there was for abortion services.

46 Providing abortion services can be quite times from blood loss and multiple other stressful. Usually an unplanned, unwanted complications. pregnancy is the worst trouble the patient After about two years of physical and has ever been in her entire life. I remember emotional rehabilitation, with a great one 18 year old patient who desperately deal of support from my family and the wanted an abortion, but felt she could not medical community, I was able to resume confide in her mother, who was a nurse work on a part time basis. I was no longer in another Vancouver area hospital. She able to deliver babies or perform major impressed on me how important it was gynecological surgery. I had to take security her termination remain a secret from her measures but I continued to work as a family. In those years, parental consent gynecologist, including providing abortion was required if the patient was less than 19 services. My life had changed but my views years old. I obtained the required second on choice remained unchanged, and I was opinion from a colleague, and performed continuing to enjoy practicing medicine. I an abortion on her. told people that I was shot in the thigh, not About two weeks later I received a phone in my sense of humor. call from her mother. She asked me directly Six years after the shooting, on July 11, “Did you do an abortion on my daughter?” 2000, shortly after entering the clinic where Visions of a legal suit passed through my I had my private office, a young man mind as I tried to think of how to answer approached me. There was nothing unusual her question. I decided to answer directly about his appearance until he suddenly and truthfully. I answered with trepidation, got a vicious look on his face, stabbed me “Yes, I did” and started to make mental in the left flank area and then ran away. preparations to call my lawyer. The mother This could have been a lethal injury, but replied: “Thank you, Doctor. Thank God fortunately no vital organs were seriously there are people like you around.” involved, and after six days of hospital Like many of my colleagues, I had been observation I was able to return home. The the subject of anti-abortion picketing, physical implications were minor, but the particularly in the 1980’s. I did not like security implications were major. After two having my office and home picketed, or murder attempts, all my security advisors nails thrown into my driveway, but viewed concurred that I was at increased risk for these picketers as a nuisance, exercising another attack. their right of free speech. Being in Canada, My family and I had to have some serious I felt I did not have to worry about my discussions about my future. The National physical security. Abortion Federation provided me with I had been a medical doctor for 32 years a very experienced personal security when I was shot at 7:10 AM, November consultant. He moved into our home and 8, 1994. For over half my life, I had been lived with us for three days, talked with us, providing obstetrical and gynecological assessed my personality, visited the places care, including abortions. It is still hard that I worked in, and gave me security for me to understand how someone could advice. In those three days he got to know think I should be killed for helping women me well. After he finished his evaluation, get safe abortions. I had a very severe gun when I was dropping him off at the airport, shot wound to my left thigh. My thigh his departing words to me were “Gary, bone was fractured, large blood vessels you have to go back to work”. About two severed, and a large amount of my thigh months after the stabbing I returned to muscles destroyed. I almost died several the practice of medicine, but with added

47 security measures. Since the year 2000, I people, and that includes providing safe, have restricted my practice exclusively to comfortable, abortions. The people I work abortion provision. with are extraordinary, and we all feel that These acts of terrorist violence have we are doing important work, making a affected virtually every aspect of my and real difference in peoples’ lives. I can take my family’s life. Our lives have changed an anxious woman, who is in the biggest forever. I must live with security measures trouble she has ever been in her life, and that I never dreamed about when I was by performing a five-minute operation, in learning how to deliver babies. So why do comfort and dignity, I can give her back I continue to perform abortions, and what her life. am I doing here? It’s a fair question. After an abortion operation patients Let me tell you about an abortion patient I frequently say “Thank You Doctor” but looked after recently. She was 18 years old, abortion is the only operation I know of and 18–19 weeks pregnant. She came from where they also sometimes say “Thank you a very strict, religious family. She was an for what you do”. Before any questions, only daughter, and had several brothers. and you can ask me anything you like, I She was East Indian Hindu and her boy want to tell you one last story that I think friend was East Indian Muslim, which epitomizes the satisfaction I get from my did not please her parents. She told me if privileged work. her parents found out she were pregnant Some years ago I spoke to a class of UBC she would be disowned and kicked out medical students. As I left the classroom, of the family home. She also told me that a student followed me out. She said: “Dr. her brothers would murder her boyfriend, Romalis, you won’t remember me, but and I believed her. About an hour after her you did an abortion on me in 1992. I am operation my nurse and I saw her and her in second year med school now and if it boyfriend walking out of the clinic hand in weren’t for you, I wouldn’t be here now.” hand, and I said to my nurse, “Look at that. We saved two lives today”. I love my work. I get enormous personal and professional satisfaction out of helping

48 The New Generation: Abortion in Medical Schools Pat Smith MD, Grand River Hospital, Kitchener, NAF, NAF Canada

Thank you for asking me to talk at this therapeutic abortion committee to obtain very important honouring of the Supreme an abortion in the hospital. While an Court Morgentaler Decision. I have not undergraduate at McMaster University in had the opportunity to hear lawyers in Hamilton there was no exposure to abortion Canada speak about this decision which so care or indeed to women faced with an fundamentally changed the lives and health unplanned and unwanted pregnancy. of Canadian women and I have found the Women’s health as a discipline was not yet content to be very interesting. It is also a born. pleasure for me to participate in an occasion As a resident in Family Medicine, I which acknowledges those men and women approached the Department of Obstetrics who worked so hard to make it possible and Gynecology to organize an elective that for this case to go forward and of course, in would train me to do abortions. I was flatly particular, Dr. Morgentaler. Dr. Morgentaler turned down and clearly told that abortions is a friend and mentor and someone who were done by gynecologists, not family has influenced my career many times and in doctors. Toward the end of my residency many ways. program, I was recruited to do training at My task is to talk about the future of the Morgentaler Clinic in Toronto. It was abortion care in Canada, in particular as part of a public relations strategy to inform it relates to future providers. Education the public and politicians that no matter and training for new abortion providers what they did to Dr. Morgentaler, there is fundamental to ensuring access to were physicians who were training to take high quality care. I am going to restrict his place. my comments to physician’s education A small group of us committed to train today because of the necessity of time and and then publicly indicate our willingness because I am not qualified to speak about to provide care. I was very pregnant at the other disciplines but I do want to make it time and the protestors at the clinic were clear that I know very well that physicians vicious toward me. It was not easy to even are only one member of the team of folks it enter the clinic. Although our group met takes to provide high quality care. with legal counsel and were reassured it was unlikely there would be legal action Provider Training: Past & Present against us or if we were arrested it was unlikely we would spend time in jail, I The current generation of abortion could not contemplate having my baby in providers came to their work very prison or leaving my baby behind were I differently than new providers today. The arrested. I was not made of the same stuff story of my own training parallels that of as Dr. Morgentaler and I dropped out at many other providers I have talked with. I that time. came to medical school after training and working as a social worker. I was a feminist A few years later, I was practicing as a who had worked for many years in the family doctor. Another family physician pro-choice community. I had friends who who I had been a resident with recruited had had illegal abortions. I had experienced me to train to do abortions urging me to put first hand the ordeal of going through a my “money where my mouth was” so to

49 speak. I began training at Choice in Health significant public health issues. No matter Clinic and from there went on eventually if you choose to provide abortions or to narrow my clinical work entirely to not, most physicians in whatever area abortion provision. Most of my colleagues of practice they end up in will come in today began in the same way, either starting contact with these issues and must be because of their own political convictions trained to understand and treat patients or at the urging of friends and colleagues appropriately. In terms of global health, because of the need for coverage in both lack of access to safe, legal and timely clinic and hospital programs. abortions has a very negative impact An important first point is for you to realize on the health of women, families and how different this path to clinical practice communities. These are very important is in comparison to other activities and issues for new physicians to understand disciplines in medicine. Most students do and perhaps address. not enter medical school knowing the area of work they will ultimately settle in to. Influences on Curriculum They come to their decisions via exposure Whether or not an area of study is included to study, practice and/or practitioners who in undergraduate or residency programs inspire or interest them. It is completely is determined by several factors. At the possible, even now, to complete an undergraduate level, licensing bodies, undergraduate and residency program such as the Medical Council of Canada without any exposure to abortion care. It is influence curriculum by including specific completely possible a student might never topics in their certification exams. The be prompted to think about including the Medical Council of Canada produces a set provision of abortion services to women of objectives to aid academic programs as an option. This leaves a huge task for and students to understand the breadth those of us hoping to ensure abortions will and depth of the information that will be remain an option for women in the future assessed in the licensing exams. or hope to someday retire ourselves. Abortion is listed only in the section on the In addition, one of the impacts of the legal and ethical aspects of practice. Morgentaler decision that led to relatively good access to abortion services throughout The CLEO objectives do list abortion as an most of Canada is that access to abortion example of one of the “controversial and is no longer the grass roots issue it once evolving ethical issues in practice” and was among feminists and the general sets as an objective that a student should public. There is not the same social justice be able to speak in a non-judgmental way, community activity that was necessary to understand the rights of patients and mobilize people to demand a change for ensure they receive full access to relevant women in Canada that was there in the 70s and necessary information. However, and 80s. Students may not be coming to abortion is only one of a list of several their medical school training with the social controversial topics like euthanasia and justice agenda on this issue many of us had is not listed in any other area of their in the past. objectives related to licensure. It is also interesting to note abortion is included in a There are other reasons to include abortion list that also includes euthanasia, physician education in undergraduate programs. assisted suicide, stem cell research, etc. Contraception, unplanned and unwanted There is no question that abortion in this pregnancies and the repercussions of country is controversial but it is not illegal unwanted children being born are all

50 as these other activities are. The message abortion content. I am going to highlight this gives is just another reinforcement that a couple of the trends that may have a abortion education is marginalized and negative influence and then talk about some would therefore not be appropriate in the of the positive things that are happening. standard curriculum. Medical Students Changing practice patterns indicate there for Choice did a curriculum mapping is an increase in the number of abortions survey which confirmed a complete lack of being done in clinics and fewer hospitals consistency across programs for abortion provide any abortion services. Most of education and training. undergraduate medical education is done The Royal College of Physicians and in hospitals and this changing practice Surgeons of Canada is responsible for pattern does negatively impact on exposure. overseeing medical education for specialists There is also a decrease in the number of in Canada, including Obstetrics and gynecologists doing abortions and therefore Gynecology. Their website indicates all less exposure to residents during their Obstetrician and Gynecologists must normal training rotations. have an extensive level of knowledge of There have been several studies that Pregnancy Termination. Having extensive indicate students exposed to abortion knowledge is described as being able to: practice and education are more likely to • Investigate, diagnose and/or manage become providers. It is of great concern that (including counseling and/or referral there is less and less exposure of practice for grief support): to students and residents and again, this is – Termination of pregnancy in the very different than other areas of specialty. first trimester There are other factors that influence – Termination of pregnancy in the whether or not a particular topic is covered second trimester in medical school. Interests of faculty both in clinical work and research may be one The only technical skill required though of the most significant determinants of is for “, diagnostic”. whether or not any particular group of A graduating Obstetrician/Gynecologist students are exposed to abortion content. must have knowledge about pregnancy In Canada, there have not been many termination in both the first and second academic physicians interested in or trimester but is not required to be able to do practicing abortion care. There has been one. very little research on abortion care done The College of Family Physicians of in academic settings. Because of this our Canada does not address the issue of hospital rounds, professional journals pregnancy termination or the management and academic meetings, where practicing of unplanned and unwanted pregnancy. It physicians, residents and medical students only speaks to being able to establish the learn new and quality practice standards, “desirability” of the pregnancy. have not had the theoretical content that would also expose and encourage other Trends in Student Exposure scholarly work. This is somewhat different to Abortion Practice than in the United States in recent years where there has been increasing research In addition to the policies and requirements and publication of research data. There of our professional and licensing bodies, are many well recognized and respected there are other factors that influence whether academic physicians involved in residency or not medical students are exposed to programs and undergraduate training.

51 There has also been the establishment of trying to influence specific committees so post graduate training programs for family our issues are brought to the attention of planning that encourage and support people in a position to change expectations. academic work in this area. Dr. Trouton is working closely with the However, it is not all bleak. There are College of Family Physicians and others of physicians working very hard in their us are working with the SOGC, the CMA clinical situations to increase curriculum and others. content and opportunities for training. Medical Students for Choice is doing an There are community and hospital-based outstanding job, trying to influence things physicians who lecture and tutor in from the bottom up. MSFC began in the undergraduate programs and who include U.S. as part of an effort to address the abortion content when they have the provider shortage. The group is now active opportunity. There are doctors who work across the US and is very active in Canada. with Medical Students for Choice and Of the 17 medical schools in Canada, 11 who offer workshops and lectures outside have active MSFC chapters. They work at the standard curriculum that augments the grass roots level organizing lectures reproductive health content. and other events to raise both the political There are two initiatives in Toronto right awareness and medical knowledge now that are very exciting. The first is a of students. Through their externship day long workshop being offered jointly program they have 125 host facilities that between the Departments of Family provide opportunities for students to meet Medicine and Obstetrics and Gynecology and work with providers, increasing that aimed at residents in both programs. It is important exposure I mentioned earlier. intended to inform residents so they can They also hold a national conference each provide better pre and post abortion care year bringing together many well known and to perhaps identify some students who providers to lecture and inspire students to might train to become providers. It is hoped pursue careers in abortion care whatever this workshop will eventually be offered specialty they chose. It is always fun to to a more multidisciplinary group and to spend time with these incredibly motivated practitioners outside of the Toronto system. and interesting young people. There is also an official elective experience The problem with many of these efforts offered to Gynecology residents that is that they are not imbedded in the will provide a great deal of exposure to curriculum. They are reliant on the time, abortion services, again to improve care interest and availability of individuals by consultants and to perhaps interest often donating their time. There is not future providers. These initiatives provide systematic integration into medical good examples of what is possible when school or residency curriculum and no you have academic physicians involved requirements this content be covered for in providing care, teaching and doing licensure or credentialing. I just want research. I know there are other physicians to make a comparison here with other across the country also involved in these areas of medicine. It is inconceivable any kinds of initiatives. Many clinics have undergraduate medical program would relationships with medical schools and rely on the individual interests of faculty residency programs and accept students to to be sure respirology is covered in their observe and train. curriculum. They would always have faculty who are respirologists and would We also have physicians who are working always include the material necessary to from within professional organizations

52 understand and deal with lung problems. If • Abortion from the perspective of a faculty person left who had this expertise, human rights there is no question it would be a part of • Global issues related to unsafe the requirements for a new faculty person abortion and its impact on women’s being recruited. Reproductive health issues health are treated very differently. There is no priority set on having faculty in Family Abortion training should include: Medicine or Gynecology who can provide • Exposure to clinical settings where scholarly research and teaching on this women facing unplanned and important topic. unwanted pregnancies should be I am going to close with what I see should mandatory be the goal for teaching abortion care in • Opportunities to rotate through medical schools and residency programs. and train to do abortions should be routinely offered to residents Standard curriculum should include: • Appropriate and standardized • Pregnancy options counseling relationships should be established • Contraception between clinical settings that provide • Descriptions of the different methods abortions and training programs and procedures of medical and • Some emphasis should be placed surgical abortions on recruiting faculty who have both • Pre and post medical and surgical interest and expertise in this important management of patients choosing part of comprehensive reproductive abortion health education

53 The Role of Media in the Abortion Debate Heather Mallick, Journalist and Author

As a feminist mainstream journalist, I have less have their abortion in a Morgentaler a lonely life. Every now and then I have clinic in Fredericton covered by Medicare? lunch with Michele Landsberg, who is That’s a great local story and the subject of retired from writing, and she tells me to an important lawsuit, but New Brunswick cheer up, things can only get better. newspapers are owned by the Irvings. I particularly appreciate that the symposium There is a media silence. We had a great today has been practical as well as event sponsored by the University of New theoretical, because journalism is very much Brunswick, Faculty of Law, in April last a “let’s get down to brass tacks” field. I have year, with an overflow audience, and a to win the attention of the reader. Being great legal panel. The paper refused to reasonable or logical isn’t enough. Although, cover it. as you’ll have noticed from media coverage But there’s a side issue. Media in Canada of women’s rights in recent years, being are in a terrible state. Media companies reasonable or logical isn’t even required. are, I think, the worst-managed sector Two things worry me about media of the economy and the recession will coverage of abortion rights today. The first make this more apparent. This is a time is complacency; the second is what will of fragmentation. The consequences will emerge from an increasing tide of misogyny be: newspapers will disappear, more in public life. One thing I always tell online sites will spring up, less money audiences: Never underestimate how much will be spent on TV newsrooms, reporting women are hated—by men and women. will be shared more across the country, there will be fewer journalists, they will Media coverage of abortion rights scarcely be a combination of less-trained and exists in Canada. Canadians in general overtrained, which is not good for anyone, think abortion is a personal matter and are and so on. therefore complacent about abortion rights, which is a nice state to be in although it isn’t One of the side effects of this is that terribly helpful if you’re poor and you’re newsrooms tend not to attract young pregnant. And since media coverage needs people, especially bright young people a news angle, it’s hard to cover a slide in who will go elsewhere for a career that accessibility in certain parts of the country. will provide a solid future. And this is a You try getting the word “accessibility” into disaster for all Canadians. But it leads to a headline. a particular problem when it comes to covering abortion rights. The older people The Ottawa Citizen ran a marvelous story who run newsrooms are decades past the recently on how hard it is to get an abortion baby-making years. They don’t care about in the Ottawa area. And that’s the genius the consequences to women of the sex of local coverage. There’s your angle, they’re not having. especially in a city that runs the country. Politicians’ daughters can’t get an abortion? I think the fact that newsrooms are run In Ottawa, where you’d think things would mainly by males, especially the middle- be more civilized? Now that’s interesting. aged and elderly, is responsible for the freak show that is coverage of female But the fact that women in New Brunswick sexuality. This might be dismissed as a can scarcely get a hospital abortion, much

54 matter of men being controlling. But I really movies as an excuse to expound on young do wonder why most female columnists in females thinking they can control their own Canada tend to be single and childless. Is bodies, their gorgeous, glowing, hot young this by choice or is there no way to have a bodies. Anything to get a babe on the cover. family life? Male columnists manage it. And Not a baby, a babe. why are women columnists so often really My first point was that Canadians are hard-core woman-haters? I may be wrong: complacent about abortion rights and this perhaps the pool of women columnists in is perpetuated by the media. Then I said Canada is too small to draw a conclusion. that women’s sexual rights are reported on But when it comes to editors and managers, in a distorted way because of the massive matters of sex and procreation are not changes in modern journalism and the kind going to be covered in a normal, sane way of people who run newsrooms. by people who, frankly, are probably not But my second point concerns forces getting any. Or much. So there’s a weird outside Canada. Yes, our first problem is prurience to these stories. There was a what we would do if were front-page story in the National Post in to be elected with a majority government. 2006 on why anti-abortionists are getting All bets are off, and we know that. nowhere. The headline wondered why Canadians wouldn’t discuss the A-word. But what happens in the United States Maybe because they’re busy talking about matters a great deal as well, largely because new technologies like the C-word, cloning? they have a lock on our culture and our It failed to answer that question. But it’s also media. Young people watch American TV funny when neo-con newspapers wonder shows and American movies; their cultural out loud why readers don’t care about the mores seep in. I’m always astonished when stuff they care about. Is it any surprise that women talk to me about The Wire and newspapers are said to be dying in their never mention that it is a womanless show. current form? Readers are smarter than In other words, just like real life. That’s journalists. You think otherwise at your seepage, when you fail to notice the erasure peril. of females from the landscape. Now we come to the demonizing of Liberal American websites like Salon young women. Maclean’s, which is criticize a Canadian university campus not a newsmagazine—more of a weird when students refuse to finance an anti- underdeveloped-guy cult plus a weird abortion group. What about free speech, the elderly lady named Amiel—has the latest feminist Americans say. But on a Canadian in a series of covers on the sexuality of girls campus, the rights of women are not up for and young women. Why do our daughters debate. dress like skanks? Why is teen pregnancy I was going to entertain you all with a cool (or “hot” to use that all-purpose very funny story about American support media word)? And that’s the approach groups for people who allegedly suffer that neoconservative men would take to from post-traumatic stress disorder from the issue of abortion rights, that the issue their relatives’ abortions. Broken parents, can be reduced to “sex with hot babes.” grandparents, weeping boyfriends who When in fact abortion is just as much about go on to kill abortion providers and so on. privacy and patriarchy and poverty and But then I realized that it’s an American sheer human desperation. story. Why should I publicize this lunacy So lascivious frustrated male editors might in Canada? The transfer of reporting on well use abortion and teen pregnancy American extremism, amusing as it is,

55 makes us more believing and tolerant of I’d like to make a request. When you see lunacy here, and that’s a terrible danger. something in the media that damages Anyway, the big problem would be the women’s rights, when you see a reporter U.S. Supreme Court overturning Roe v. go out on a limb for the rights of, say, a Wade, which I think they may well do. poor woman seeking an abortion, will you And the second problem is how any of the send an email or write a letter to the editor candidates would react, once in office, to speaking up? The anti-abortion people use that. I think we know they would all react this tactic. Can we get up to speed here? with cowardice. Can someone publicly defend abortion rights, please? I think if abortion rights disappear in the U.S., there will be a resultant anti-choice It’s all very well to call Canadians pressure here transmitted via the media. complacent, but feminists are complacent There are very few feminists in the media. too. It’s all very well to support each other I’m hoping American laws will be ignored, in academia and in specialist publications the way Canadians fly off to Cuba for their and in guarded online forums, but the winter vacation, but I’m not confident. mainstream needs to hear from you. And On the other hand, depending on how Dawn Fowler, whose group wants to help American states react, it may well be that poor women get the abortions they want, American women will cross the Canadian needs a cheque from you. border for their abortions. And we will have to support them to the same degree we have failed to support American war- resisters, some of whom are women.

56 The Politics of Abortion: The Work of the Politician Hon. Carolyn Bennett MD, MP, St. Paul’s, ON

The following in an overview of the Power Point Life as a Family Doctor presentation given by Hon. Carolyn Bennett. I had the best patients in the world. They Life before Politics were: • Empowered patients • Advocacy • Effective Advocates • Public position • Engaged Citizens • Profession • Consistency/values/principles Big ‘P’ Politics • “Immunization” • Ran provincially in ’95 and lost…. Personal Experience Pre-Politics – Platform of same sex benefits, adoption • High school in the 60’s • 1996…Provincial Liberal leadership • Medical school campaign… – Bracebridge, Gravenhurst elective… – 7/8 candidates practicing Catholics 1st patient needing an abortion – “Women have been trying to was a 14 year old daughter of a terminate pregnancies for as long prostitute serving her mother’s as they have been getting pregnant. clients…seemed clear to me she We have to ensure they don’t die should return as soon as possible to doing it.” Grade 9 • 1997 Federal Election… – OB/GYN rotation – “we’ll have to agree to disagree” – Marion Powell • Vigilance…ongoing • Clerkship elective in Barbados…septic • Private members’ business very sick patients result of criminal abortions • 2002: Bill C-13, Assisted Human Reproduction Act … proposed • Family practice residency amendments • Locums in Bracebridge, Midland – Criminalize vs. Regulate • Practice in Toronto’s Annex area in • 2005 Dispute resolution commenced 1977 on New Brunswick – Read Our Bodies, Ourselves (under the arms of ‘every’ patient) • Women’s College Hospital – Bay Centre for Birth Control – Impressive work on how women decide

57 Historical Listing of Anti-Abortion • October 23, 2003—Breitkreuz Motions introduces motion M-482 asking Parliament for a Woman’s Right to • March 14, 1996—Reform MP Garry Know Act, which would “guarantee Breitkreuz (Yorkton-Melville, women are fully informed of all the Saskatchewan) calls for national risks before deciding to abort their referendum on tax-funding for baby”. abortions. • March 11, 2004—Breitkreuz introduces • October 29, 1996—Reform leader motion M-560 calling on the calls for national government to create a new criminal referendum to place a ban on abortion code offence for the “murder of an in the Constitution. unborn child” when a third party • March 1997—Reform MP Keith a pregnant woman. Martin introduces private member • June 2006— introduces bill to charge pregnant women who Bill C-338, a private members bill abuse alcohol, drugs etc. with criminal that, if passed into law, would make endangerment of . abortion illegal after the 20th week of • November 20, 1997—Breitkreuz pregnancy. reintroduces private member’s motion • November 21, 2007 —MP Ken Epp M-268 calling for a binding national introduces Unborn Victims of Crime referendum on government funding legislation. for “medically unnecessary” abortions. • April 18, 2002—Breitkreuz introduces Other History motion M-392 asking the Standing • May 1998—First Annual March for Committee on Justice and Human Life on Parliament Hill organized by Rights to examine the current Campaign Life Coalition, Canada’s definition of “human being” in the national anti-choice group. Criminal Code to see if the law needs to be amended to provide protection • February 24, 2002—During a to and to designate a fetus/ nationally televised leadership debate, embryo as a human being. all four Alliance leadership candidates tell potential voters they would not • October 30, 2002—MP Maurice lead a push to have abortion banned Vellacott (-Wanuskewin) or delisted as a surgical procedure reintroduces his conscience clause covered by Medicare. legislation for debate, for health care workers who refuse to take part in • May 25, 2002—MP Jason Kenney procedures such as abortion speaks at the Alberta Pro-Life Conference in Edmonton and says • September 30, 2003—Breitkreuz most abortions are not medically introduces motion M-83, asking the necessary and should not be funded. justice committee to examine whether abortions are medically necessary as • November 26, 2002—Anti-choice defined by the Canada Health Act MPs Tom Wappel (Liberal), Elsie Wayne (Conservative), and Maurice – Breitkreuz got over 10,000 Vellacott (Alliance) release an open Canadians to sign petitions letter questioning Dr. Morgentaler’s supporting this motion, which was motivations and accusing him of defeated Oct. 2.

58 hiding lucrative profits from his • May 2007—9th annual March for Life abortion clinics. on Parliament Hill. MPs Paul Steckle • January 2003—Three anti-choice MP’s and , co-chairs of the issue a press release criticizing the idea Parliamentary pro-life caucus, held a of awarding Dr. Henry Morgentaler news conference preceding the march. the . Paul Steckle (Liberal), Maurice Vellacott (Alliance), Summary of “Morality” Bills being and Elsie Wayne (Conservative) claim Debated in the House/Senate that Morgentaler’s “legacy” is one of harming women. We have just updated our “GET INFORMED” page with a concise listing of • May 13, 2004—20 MPs, mostly many the bills currently being debated in Conservatives, attend the annual the House or Senate that would fall under March for Life in Ottawa, organized the category of ‘moral’ issues. These bills by Campaign Life Coalition, Canada’s touch on drugs, sexual offenses, the rights national anti-choice group. of wanted children, internet pornography • May 30, 2004—Conservative Rob and more. We encourage you to take a scan Merrifield says in an interview with through and e-mail/call your MP to let them that women know what you think about these bills, considering abortion should be especially the ones that are currently being required to seek counselling first. debated. • June 2004—Conservative Cheryl Gallant draws a parallel between Support the Protection of abortion and the beheading of an Pregnant Women and their Babies American man working in Iraq. • Sept. 8, 2004—Conservative Vic Toews On Nov. 21st, 2007, the House of Commons told the National Pro-Life Conference, began the process of looking at a bill by in a speech entitled “Abuse of the Ken Epp that, if it is passed, will make it a Charter by the Supreme Court,” that criminal offense to harm a ‘wanted’ child the right to abortion is a result of in the womb (e.g. if violence against the “activist judges” abusing the Charter mother hurts the child). Mr. Epp has posted of Rights and Freedoms to develop a poll on his website and is asking for the and implement their own social policy. opinion of Canadians. If you are in support of protecting pregnant women and their • March 2005—The Conservative Party children, please click on the image to the adopts a resolution at their convention left and go to Mr. Epp’s site to vote “Yes!.” (by a vote of 55% to 45%) that “a Conservative government will not initiate or support any legislation to Pressure ?? regulate abortion.” Calls to the constituency office this week • May 2006—8th Annual March for Life about my participation in this event: on Parliament Hill, over 21 MPs in • “How can you properly represent attendance. the people of St. Paul’s if you are – Former Liberal MP Pat O’Brien was prepared to participate in the abortion awarded the Joseph P. Borowski event when 70% of the riding oppose award for his “heroism in battling abortion”. in Parliament for life and family.”

59 • In May 2004, Life Canada (a • But www.carolynbennett.net gives national association of municipal you LifeSiteNews.com—an anti-choice and provincial educational pro-life website. groups) ran an ad in the National Post that listed the number of tax-funded What do Canadians Think? abortions done per year in Canada. A note at the bottom invited readers to “Do you think abortions should be send letters of protest to politicians. legal under any circumstances, only certain circumstances, or illegal in all • Type in www.carolynbennett.ca to get to her actual website. circumstances?” According to polls:

Year Legal Only Under Illegal Under Any Circumstances Certain Circumstances in All Circumstances 1975 23% 60% 16% 1978 16% 69% 14% 1983 23% 59% 17% 1988 25% 59% 15% 1993 31% 56% 10% 1998 30% 55% 12% 2001 37% 51% 9%

American and Canadian Views The Role of the Elected Representative According to the 2002 Gallup poll: • Abortion is morally acceptable Voting on Abortion in the House of Commons: A Test for Legislator Shirking. University of – US 38% Regina, Professor Neil Longley. – Canada 57% • Examines the degree to which • But how much does public opinion legislators’ votes on a 1988 matter? parliamentary vote on abortion • The Canadian Conscience: reflected constituent preferences, Grenville and Canseco, Angus Reid versus the degree to which the votes pollsters found: reflected the personal ideological – Thoughtful Conservative—33% preferences of the legislators themselves. – Laissez Faire— 25% • It finds that MP voting on this issue _ Accepting Middle of the did not appear to be influenced Road —18% by the preferences of constituents, – Strict Moralist—12% but was significantly influenced by – Uncertain Relativist—12% the personal ideologies of the MPs themselves.

60 Trustees versus Delegates Role of an Elected Representative

Longley says legislators are “trustees” • Human rights are not subject to not “delegates”. Let’s examine the issue of majority rule in a democracy. “trustees” versus “delegates” • Should an MP represent their • Under the delegate view, the legislator constituent’s views or their own acts simply as the “voice” of his or her personal views on issues as constituents. contentious as abortion? • Legislators are not to use their own – The true role of the government and discretion to make decisions. They its MPs is to respect and support are expected to represent constituent women’s constitutional rights interests on all issues at all times. by ensuring abortion access and • Standard to legislative voting (e.g. funding. Legislators should cast their votes – Politicians have no “right to strictly in accordance with the choose”—that is the sole domain of preferences of their constituents). women. • Under the trustee view: – Constituents grant legislators The “Responsible” Elected relatively wide latitude to make Representative: decisions as legislators see fit. • ‘Representative democracy’ – This is justified on a number of • How do we know? grounds: • No $$$$ for polling – Legislators should be “leaders” and not “followers,” • Town halls, tabulating phone calls, emails – Legislators must also serve national interests, and not • Still a guess… simply the interests of their own – Was the question genuine? constituency. – Was the context explained? – No legislator should ever be • The seduction of direct democracy… forced to vote against his or her conscience on ethical and moral matters Miles to Go • When Professor Longley discovered • Freedom, equality, safety that MPs voting on the abortion issue • Dignity did not appear to be influenced by • Bias-free framework: Mary Anne the preferences of constituents, he Burke, Margrit Eichler; Global Forum described it as evidence of “shirking” for Health Research behaviour by legislators. • Research, trusted data – He’s wrong. • As elected officials, MPs are obligated Equal Access? to uphold the Charter of Rights and Freedoms and protect the equal rights • Over half of abortions in Canada are of minorities. Human rights are not still done in hospitals because clinics subject to majority rule in a democracy. only exist in the larger cities.

61 • 80% of hospitals don’t even perform • It’s harder for rural women to access abortions. abortion services than it is for city • Hospitals have: women. – Long waiting lists – Many women must travel long distances to find an abortion – Requirements for doctor referrals provider. – Quotas or gestational limits • Access is also poor in more – Anti-abortion staff who misinform conservative areas, especially the or judge patients seeking abortions. Atlantic provinces.

Anti-Choice MPs in the House of Commons Before and After 2006 Election Before Election After Election Total Anti-Choice MPs 93 of 306 MPs (30%) 100 of 308 MPs (32%)

Anti-choice MPs are deemed to be publicly co-participators. It’s because Jesus knew anti-choice if they have an anti-choice women would naturally follow”. (Christian voting record, or have publicly spoken at Week, November 27th 2001). or attended events organized by anti-choice Hon. Carolyn Bennett closed her groups, or have publicly stated they are presentation with this quote: “pro-life,” or would support abortion only in limited circumstances. “Physical and mental energy come from being in control of your life, having real For example, MP David Sweet was the choices, and being involved with others President of Promise Keepers Canada to find ways of organizing change for (1998–2004). He stated: “Men are natural the better.” influencers, whether we like it or not. There’s a particular reason why Jesus Barbara Rogers called men only. It’s not that women aren’t

62 On Being a Legal Academic in a Politically Charged Context Jocelyn Downie, Faculty of Law, Dalhousie University

Thanks are due to Sanda Rodgers for her choice is fulfilled and that initiatives to initial partnership in the editorial and compromise access are resisted.”48 The responses discussed in this piece, for her editorial was published on July 4, 2006. We comments on earlier versions of this piece, were immediately targeted on and for her unwavering commitment to websites (the very day the editorial was put advancing women’s equality through her up on the CMAJ website, negative notices work as a legal academic in this highly about it, and us, went up on various right politically-charged context. to life websites). This reaction was not a surprise. But what came next was. The Story Where was Editorial Independence? A few years ago, an opportunity came along to write a guest editorial in the In February 2007 (more than six months Canadian Medical Association Journal. after the editorial was first published), Reflecting on possible topics, I realized the CMAJ printed a number of letters to if I had to pick one message I wanted to the editor submitted in response to our get out to practicing physicians (apart editorial as well as our response to those from the need to protect our Canadian letters. In our response we argued that, health care system—a topic on which there given the Canadian Medical Association had just been an editorial in the CMAJ), Code of Ethics together with the Policy on it was on access to abortion. I had the Induced Abortion, “all physicians are under distinct pleasure of writing this editorial an obligation to refer” and “[the policy] with Sanda Rodgers. We described the does not allow a right of conscientious severe problems with respect to access to objection in relation to referrals.”49 Given abortion in Canada (particularly for the the realities of our health care system (e.g., most vulnerable women) and we argued the severe shortage of family physicians), that “physicians are not required to without a referral, women face barriers perform abortions (except in emergency and delays in access to abortion services. circumstances); however, regardless of Failing to provide a referral thus violates their personal beliefs, they should not the CMA policy provisions that “the patient prevent women from accessing abortion. should be provided with the option of Health care professionals who withhold full and immediate counselling services a diagnosis, fail to provide appropriate in the event of unwanted pregnancy”50 referrals, delay access, misdirect women or and “there should be no delay in the provide punitive treatment are committing provision of abortion services.”51 Our malpractice and risk lawsuits and response prompted an e-letter from Jeff disciplinary proceedings.”47 We also argued Blackmer, the Executive Director of the that “physicians should work to ensure Office of Ethics for the CMA in which he that abortion is available to all women who seek it, that the promise of reproductive 48 Ibid 49 Sanda Rodgers and Jocelyn Downie, letter, “Access to abortion” (February 13, 2007) 176(4) 47 Sanda Rodgers and Jocelyn Downie, guest CMAJ 494. editorial, “Abortion: ensuring access” (July 4, 50 Ibid 2006) 175(1) CMAJ 9. 51 Ibid

63 claimed we were mistaken in our claim with respect to its editorial independence that physicians have an obligation to refer. from the CMA (and its subsidiary CMA This letter was posted on the CMAJ website Holdings Inc.).55 Following a review of six days after our response to the first set the controversy, the CMAJ Governance of letters was published.52 On April 24, Review Panel (chaired by Dick Pound) 2007, another letter from Jeff Blackmer recommended that “any response was published in the CMAJ.53 This letter submitted from the CMA intended for was headed “Clarification of the CMA’s publication in the CMAJ should go position concerning induced abortion.” through the same process as all third-party Blackmer offered no argument in support submissions to the CMAJ.”56 The CMA of his interpretation of the CMA policy. officially accepted all recommendations Nor did he indicate any process was made in the report and yet here the CMAJ followed within the CMA to arrive at that provided a staff member of the CMA the interpretation of the organization’s policy. opportunity to pronounce unchallenged on Merely holding the position of Executive the interpretation of policy. Director of the Office of Ethics would not make one the final authority on the Where were Journalistic Standards? meaning of an organizational policy. On May 5, 2007, the National Post ran a We were not given an opportunity story by Anne Marie Owens with the to respond to Blackmer’s April letter. headline “The a word. How did abortion, Furthermore, his letter was accompanied that most contentious of issues, become by an “Editor’s note” which stated “We one that is simply not discussed publicly?” received a large number of letters in In this article, Owens stated “In their response to the editorial by Rodgers and essay ‘Abortion: Ensuring Access’, law Downie, with particular regard to the professors Sanda Rodgers and Jocelyn CMA’s policy on induced abortion. We Downie misstated what turns out to be asked the CMA to assist our readers by a key aspect of the Canadian Medical clarifying their position using a case-based Association’s moral compromise on the example, which they have provided here. issue: the physicians’ conscientious objector We will not publish any further letters status and the referral of patients desiring on this topic, unless they present new an abortion.”57 Although she clearly spoke information or state a new position on this with Jeff Blackmer, Ms Owens never matter.”54 In other words, they shut down an important policy debate and, contrary 55 The CMAJ Editor-in-Chief and senior deputy to convention in many academic journals editor were fired and most of the CMAJ’s editorial (wherein authors are given an opportunity board resigned in protest over the firing and concerns about editorial independence of the to respond to letters published in response CMAJ from the CMA. See, for example, Peter to their articles), gave the CMA the “last Singer and Gordon Guyatt, “Deeper lessons word.” It was particularly surprising from the CMAJ debacle” (May 2006) The Lancet they did this in this way given that, not 367(9522) 1551-1553. 56 CMAJ Governance Review Panel Final Report, less than a year earlier, the CMAJ had www.cmaj.ca/pdfs/GovernanceReviewPanel. been embroiled in a serious controversy pdf (date accessed February 25, 2009) Recommendation 25 at 41. 57 Anne Marie Owens, “The a word. How did 52 Jeff Blackmer, e-letter, “Clarification of CMA abortion, that most contentious of issues, become Policy” (February 19, 2007) CMAJ. one that is simply not discussed publicly?” (May 53 Jeff Blackmer, letter, “Clarification of the CMA’s 5, 2007) National Post available at http://www. position concerning induced abortion” (April 24, nationalpost.com/news/story.html?id=c9fb6309- 2007) 176(9) CMAJ 1310. 0a11-4951-b859-f1f5135915b8&p=1 (date accessed 54 “Editor’s Note” to ibid. February 24, 2009) called Sanda or me for comment. Her biases to impair their ability to accurately unexamined claim that we “misstated” or represent the law.59 (emphasis added) “misrepresented” CMA policy has since Fortunately, my Dean responded forcefully been repeated a number of times in various in defence of Sanda and me and the journals and newspapers—none of whom position we had taken on the law and, have contacted us to ask for an explanation most importantly, the principle of academic or defence of our interpretation of CMA freedom: policy (which we would, of course, gladly have provided). Universities operate on the principle of academic freedom, and in my view the Where was Respect for editorial written by Professors Downie and Rodgers falls squarely within the Academic Freedom? appropriate exercise of that freedom, commenting as it does on an important Some months later, our editorial surfaced matter of public and legal debate. It is again. In August 2007, my Dean (and essential that they be able to do so free of Sanda’s Dean) received a letter in the mail political or administrative interference. from Paul Steckle and Maurice Vellacott, You and others are of course free to present the Liberal and Conservative Co-Chairs of contrary arguments, but any attempt by the Parliamentary Pro-Life Caucus, signed me to take what you call “necessary steps” as Co-chairs of the PPLC and as members to prevent the expression of such views of the federal parliament. The letter to the would clearly violate the academic freedom deans began “[i]t has come to our attention of faculty members. that a faculty member of the Dalhousie Law School, Professor Jocelyn Downie [Professor Entirely apart from the issue of academic Rodgers in the letter to her Dean], has made freedom, I also note that you have false claims in an editorial published by suggested that Professor Downie and the Canadian Medical Association Journal Professor Rodgers have made what you regarding the legal status of abortion in call “false claims”, have presented “a false Canada.”58 It went on to claim we were statement as truth” and allowed “personal “wrong” and concluded: biases” to affect their legal analysis. I do not see any factual basis for these We are concerned that Professor Downie assertions. It is clear that you disagree [Professor Rodgers in the letter to her with the arguments and views they have Dean] has presented a false statement presented, but that in itself is not a basis as truth. It is particularly disturbing for the serious allegations you have made coming from a professor of law who in your letter.60 will be perceived by the uninformed as authoritative on legal matters—in this case, the legal status of abortion in The Coda Canada, and particularly the question of Obviously neither Sanda nor I were a constitutional ‘right to abortion’. We silenced by the events that followed the respectfully ask that you take the necessary publication of our editorial. However, steps to ensure that your Faculty I was shocked and disappointed by members—who have tremendous power to the actions of the journal, journalists, influence the minds of our future lawyers and parliamentarians. Clearly legal and doctors—not allow their own personal

59 Ibid. 58 Letter from Paul Steckle and Maurice Vellacott to 60 Letter from Phillip Saunders to Paul Steckle and Phillip Saunders, August 14, 2007. Maurice Vellacott (August 22, 2007). academics working in politically charged contexts must continue to be ready for, and vigorously resist, attempts to shut down debate on important matters of public policy and interfere with academic freedom. The question is, will the journals, journalists, and members of parliament step back from the political fray and adhere to the journalistic and ethical standards and values that should guide their conduct?

66 Canada from an International and Comparative Perspective

67 68 Canada from an International and Comparative Perspective Katherine McDonald, Action Canada for Population and Development

The following is a synopsis of the Power Point 6. Convention on the Rights of the Child presentation given by Katherine McDonald. (CRC): CRC Committee

Abortion Rights in International Law First Provision on Abortion in a Human Rights Instrument • Right to non-discrimination and Protocol to the African Charter on Human equality and Peoples’ Rights on the Rights of • Right to health Women in Africa: • Right to life “Protect the reproductive rights of women • Right to liberty and security of by authorizing medical abortion in cases of the person sexual assault, rape, and where continued pregnancy endangers the mental and • Right to decide on the number physical health of the mother or the life of and spacing of children the mother or foetus” • Right to freedom of conscience and religion Treaty Bodies Hold States to Account States that have ratified the treaty report to International Law the treaty body. Treaty bodies issue: • Treaties and conventions signed • General recommendations and ratified by States • Specific comments (concluding • Customary international law observations a or comments) • General principles of law • Precise and concrete standards • Judicial decisions, legal scholars 275 Concluding Observations on Abortion Human rights treaties Identifying Multiple Rights Violations 1. International Covenant on Civil and Such as… Political Rights (ICCPR): • Right to life CCPR Committee • Right to health 2. International Covenant on Economic Social and Cultural Rights (ICESCR): • Non-discrimination and equality CESCR Committee • Right to liberty and security of the 3. Convention to Eliminate All Forms person of Discrimination Against Women • Right to be free form cruel, inhuman (CEDAW): CEDAW Committee and degrading treatment 4. Convention to Eliminate All Forms • Right to freedom of conscience and of Racial Discrimination (CERD): religion CERD Committee 5. Convention Against Torture (CAT): CAT Committee

69 Concluding Observations: CCPR Concluding Observations from CEDAW Committee Right to Life • as cause of high • Unsafe abortion as a cause of maternal maternal mortality rate = 28 mortality = 8 • Derides abortion as means of family • Restrictive abortion laws as violating planning = 19 human rights = 27 • Critique sex selection = 2 • Amend laws to permit abortion in • Review restrictive abortion legislation certain circumstances = 15 = 16 • Abortion as a means of family • Where abortion legal ensure services planning = 2 = 7 • Inappropriate use of conscientious • Conduct national dialogue = 3 objection = 2, • TOTAL = 92 to 81 countries • TOTAL = 42 Concluding Observations from CRC Right to Health • High incidence of teen pregnancy and The right to health is found in four international abortion = 33 treaties with the exception of the ICPPR and • High incidence of maternal mortality Torture Convention due to unsafe abortion = 15 • All except CERD define the right to • Abortion as a means of family health in relation to abortion planning = 15 • Condemned restrictive abortion laws • Sex selective use of abortion = 2 as a violation of women’s human rights • Deploring lack of data on teen Concluding Observations: CESCR pregnancy, maternal mortality and • Decrease use of abortion as means of abortion = 16 = 6 • Permit abortion in cases of rape and • Link between high maternal mortality incest = 2 rate and unsafe abortion = 20 • TOTAL = 60 to 66 States • Urge states to amend laws to permit abortion in certain circumstances = 4 Conclusion

• Inappropriate use of conscientious Restrictive laws that force women to risk objection = 2 their lives and health through resort to • Permit therapeutic abortion = 2 unsafe abortion constitute violations of • TOTAL = 43 women’s rights to life and to health.

70 Appendices

71 72 Appendix 1: Symposium Programme The Faculty of Law, University of Toronto and the National Abortion Federation Present

A Symposium to Mark the 20th Anniversary of R v. Morgentaler Of What Difference: Reflections on the Judgment and Abortion in Canada Today

Friday, January 25, 2008 Post-Morgentaler Challenges: 9:00am–5:00pm From Crime to Health Faculty of Law, University of Toronto Joanna Erdman Faculty of Law, University of Toronto This interdisciplinary symposium Abortion in Canada Today: celebrates the twenty year anniversary of Who, What and Where? R v. Morgentaler, the Supreme Court case Dawn Fowler in which the criminal law on abortion in National Abortion Federation, Canada Canada was held unconstitutional. The symposium examines the significance of the RIGHTS IN PRACTICE: judgment twenty years on. What difference BARRIERS TO AVAILABLE AND has it made to women, providers and the ACCESSIBLE CARE politics of abortion in Canada? (10:45–12:15pm) REGISTRATION AND LIGHT BREAKFAST Geography: Variation Across the Country (8:30–9:00am) Sheila Dunn Bay Centre for Birth Control, Department of WELCOMING REMARKS Family and Community Medicine, Women’s College Hospital, University of Toronto (9:00–9:30am) Law: Facilitating and Impeding Access Dean Mayo Moran Sandra Rodgers Faculty of Law, University of Toronto Faculty of Law, University of Ottawa Vicki Saporta Better Never Than Late, But Why?: National Abortion Federation The Contradictory Relationship between Colleen Flood Law and Abortion? CIHR—Institute of Health Services and Policy Shelley Gavigan Research, Faculty of Law, University of Toronto Osgoode Hall Law School, York University Dr. Henry Morgentaler Information Failure: An Ontario Case Study THE CONTEXT: FROM MORGENTALER Lorraine Ferris TO ABORTION IN CANADA TODAY Faculty of Medicine, University of Toronto (9:30–10:30am) R v. Morgentaler: Charter Rights and Abortion Lorraine Weinrib Faculty of Law, University of Toronto

73 LUNCH WITH STUDENT POSTER ABORTION IN LAW AND POLITICS PRESENTATIONS (3:00–4:30pm) (12:15–1:15pm) The Role of Media in the Abortion Debate When Freedom Fails: Free Speech Heather Mallick and Women’s Right to Safe Abortion Journalist and author in the Philippines The Politics of Abortion: Carolina S. Ruiz Austria The Work of the Politician Faculty of Law, University of Toronto Carolyn Bennett The Other Morgentalers Hon. Carolyn Bennett MD. MP St. Paul’s Chris Kaposy Legal Reform in a Politically Dalhousie University Charged Context Permitted Exceptions to Abortion Law Jocelyn Downie in Brazil: Helpful or Harmful? Faculty of Law, Dalhousie University Keri Bennett Faculty of Law, University of Toronto CANADA FROM AN INTERNATIONAL AND COMPARATIVE PERSPECTIVE OUR PROVIDERS: THE CHALLENGES (4:30–5:00pm) OF THEIR WORK Canada from an International and (1:15–2:45pm) Comparative Perspective Challenges of Providing Abortion Care: Katherine McDonald A Provider’s Perspective Action Canada for Population and Development Konia Trouton Vancouver Island Women’s Clinic SYMPOSIUM CONCLUSION AND THANKS Why I Do This? Being a Provider Gary Romalis The Elizabeth Bagshaw Women’s Clinic, Vancouver The New Generation: Abortion in Medical Schools Pat Smith Grand River Hospital, Kitchener and NAF and NAF Canada

74 Appendix 2: Presenter Biographies

The Honourable, Dr. Carolyn Bennett, graduation from law school, she clerked for PC, MP, was first elected to the House of Chief Justice Lamer at the Supreme Court Commons in 1997 and re-elected in 2000, of Canada. 2004 and 2006 representing the Toronto Jocelyn’s work is geared to contributing riding of St. Paul’s. Carolyn has served as to the academic literature and affecting Opposition Critic for Social Development, change in health law, policy, and practice a portfolio that includes social policy areas in a variety of areas. Past work has such as child care, people with disabilities, explored assisted death, organ donation homelessness and housing. Carolyn also and transplantation, and the governance served as the Vice Chair on the Standing of research involving humans. She has just Committee on Health and sat on the embarked upon a new program of research Standing Committee on National Defense focusing on legal determinants of women’s and traveled with the Committee in January health and relational theory—both of which 2007 to Afghanistan. Presently Carolyn is have significant potential implications for the Opposition Critic for Public Health, abortion law and policy in Canada. Seniors, Canadians with Disabilities and the Social Economy Portfolio. Dr. Bennett obtained her degree in medicine from the Sheila Dunn MD, MSc, CCFP(EM), FCFP University of Toronto in 1974, and received is an Associate Professor in the Department her certification in Family Medicine in 1976. of Family and Community Medicine at Prior to her election, Dr. Bennett was a the University of Toronto. She works as family physician and a founding partner of a family physician at Women’s College Bedford Medical Associates in downtown Hospital and is the Research and Program Toronto. She was President of the Medical Director at the Bay Centre for Birth Control, Staff Association of Women’s College a large sexual health clinic for women. She Hospital and Assistant Professor in the is involved in undergraduate, graduate Department of Family and Community and post-graduate teaching in women’s Medicine at the University of Toronto. Dr. health, abortion and family planning, Bennett served on the Boards of Havergal sexually transmitted infections, and office College, Women’s College Hospital, the gynecology. Her research interests include Ontario Medical Association, and the new contraceptive methods, provision of Medico-Legal Society of Toronto. contraceptive care, medical abortion, and access to emergency contraception.

Jocelyn Downie holds a Canada Research Chair in Health Law and Policy and is Joanna N. Erdman is the Co-Director of a Professor in the Faculties of Law and the International Reproductive and Sexual Medicine at Dalhousie University. Jocelyn Health Law Programme and Director of received an honours BA and MA in the Health Equity and Law Clinic at the Philosophy from Queen’s University, an Faculty of Law, University of Toronto. MLitt in Philosophy from the University Joanna has published in the areas of access of Cambridge, an LLB from the University to reproductive health care, Canadian of Toronto, and an LLM and doctorate in health care policy and human rights law. law from the University of Michigan. After Her primary scholarship concerns sex and

75 gender discrimination in the regulation, from the University of Auckland, New structure, and financing of health care Zealand and her LL.M. and SJD from the systems. Joanna obtained her B.A. and J.D. University of Toronto, Canada. Her primary from the University of Toronto and her area of scholarship is in comparative health LL.M. from Harvard Law School. Joanna care policy, public/private financing of is a member of the Law Society of Upper health care systems, health care reform, Canada. and accountability and governance issues more broadly. She has been consulted on comparative health policy and governance Lorraine E. Ferris is a Professor of issues by both the Senate Social Affairs Public Health Sciences in the Faculty Committee studying health care in of Medicine, U of Toronto and a Senior Canada and by the Commission on the Scientist, Clinical Epidemiology Unit, Future of Health Care in Canada (the Sunnybrook Health Sciences Centre and Romanow Commission). She is the author in the Institute for Clinical Evaluative of numerous articles, book chapters, and Sciences (ICES), Toronto, Ontario. She has reports as well as the author and editor of a PhD in Psychology, is licensed to practice five books. (C.Psych.), and holds two Masters of Laws degrees (LLM, LLM). Dr Ferris focuses on women’s health, health services research, Dawn Fowler is the Canadian Director and medico-legal issues, especially issues for the National Abortion Federation. This concerning public protection, standards newly created position started in 2006 and of care, confidentiality, regulation, and Dawn has been working on trying to have research environments. She is currently abortion included on the inter-provincial the Principal Investigator, Studies on billing agreement and to ensure that Access to Abortion Services in Ontario physicians have to provide a referral for (SAAS) funded by the Ontario Women’s abortion care when a woman requests such Health Council. Ten years ago, she was care. She worked at Health Canada for 11 the Principal Investigator of the Studies on years as Chief of Reproductive and Child Access to Therapeutic Abortion Services Health and developed Canada’s Perinatal (SATA) funded by the Ontario Ministry of Surveillance System which included Health and Long-Term Care that provided abortion. Dawn also headed up the Health the first provincial comprehensive picture Surveillance Division and created the of access to abortion services through an women’s health surveillance system. Dawn analysis of primary and secondary data. also worked as a consultant with WHO— EURO Office and worked on reproductive health and quality assurance issues in the Colleen M. Flood is a Canada Research newly independent states of the former Chair in Health Law and Policy. She is Soviet Union. Upon her return to Canada also the Scientific Director of the Canadian she organized the opening of a new Institutes for Health Research, Institute abortion clinic in Victoria, British Columbia of Health Services and Policy Research. and became its Manager. She is also an Associate Professor of Law at the University of Toronto and is cross- appointed into the Department of Health Shelley A.M. Gavigan is an Associate Policy, Management and Evaluation and Professor and member of the faculty of the School of Public Policy. Professor Flood Osgoode Hall Law School and the Graduate obtained her B.A. and LL.B. (Honours) Programs in Sociology and Women’s

76 Studies at York University. She joined the and children by promoting progressive faculty of Osgoode Hall Law School in policies in the field of international Toronto in 1986 and is currently serving her development with a primary focus on third term as Academic Director of Parkdale reproductive and sexual rights and health Community Legal Services in Toronto. She and an emerging focus on international was Associate Dean of Osgoode Hall Law migration and development. School from 1999 to 2002, and Osgoode’s Before joining ACPD Katherine McDonald Director of Clinical Education from 2004 practiced law for ten years, was the to 2006. Her publications include the book, Executive Director of the Nova Scotia The Politics of Abortion, with Jane Jenson Public Legal Education Society, and and Janine Brodie (Oxford, 1992), Her President of the Nova Scotia Advisory recent research includes a doctoral project, Council on the Status of Women. She is “Criminal Law on the Aboriginal Plains: a Past President of The First Nations in the First Criminal Federation of Canada, and a former Court in the North-West Territories, 1870– member of the regional and international 1903;” a community-based project on access governing bodies of International Planned to justice for low income and marginalized Parenthood Federation (IPPF). youth, in collaboration with colleagues in clinical legal education at Osgoode and the Faculty of Education at York University. Sanda Rodgers, B.A., LL.B., B.C.L., LL.M is a professor and former Dean of the Faculty of Law, University of Ottawa. Heather Mallick, who writes for CBC.ca She holds the Shirley Greenberg Chair in well as the Guardian online, has written Women and the Legal Profession. She has about abortion rights throughout her been a Bencher of the Law Society of Upper journalism career. She has been nominated Canada and Commissioner of the Ontario four times for National Newspaper Awards, Law Reform Commission and is a recipient winning for Critical Writing and Feature of the Women Lawyers Association Writing. She has worked at the Toronto President’s Award for Outstanding Star, The Financial Post, The Sunday Sun in Contribution to the Legal Profession and Toronto and As If columnist in the Review of the Business and Professional Women’s section and Focus section of the Globe and Association of Ottawa Women’s Choice Mail. Last spring, Knopf Canada published Award for Outstanding Contributor to the paperback version of her second book, Gender Equity. a collection of essays on surviving in the Bush era called Cake or Death. In 2007, she gave the annual Hurtig lecture at Garson Romalis, MD, FRCSC, FACOG the University of Alberta on the threat to is on the Honorary Staff of the Vancouver Canada as it allows itself to be taken into General Hospital and the Active Staff of the American sphere. BC Women’s Hospital, and is the Medical Director of the Elizabeth Bagshaw Women’s Clinic. He graduated from the University Katherine McDonald, LL.B., LLM, is the of British Columbia Medical School in first Executive Director of Action Canada 1962. Gary served his rotating internship for Population and Development, which and Ob/Gyn residency at Cook County was formed in 1997. ACPD is a human Hospital in Chicago from 1962–1966. Gary rights advocacy organization that seeks to did further residency training in general enhance the quality of life of women, men

77 surgery, pathology, and gynecologic cancer Committees. She is also the current Chair at the Vancouver General Hospital from of the Board of Directors of NAF Canada. 1967–1968. Pat participated in the NAF international Gary has been in the private practice of program, training physicians to use Ob/Gyn, including abortion services, in manual in Russia. She Vancouver since 1972. Gary has survived has worked with Medical Students for to two murder attempts in 1994 and 2000 Choice in Canada and the United States in connection with abortion. Since 2000 he and has been a speaker at many of their has limited his practice to the provision of meetings. She was the faculty advisor for abortion services. the first Canadian group when it formed in Hamilton.

Vicki Saporta, President and CEO of the National Abortion Federation. Under Konia Trouton MD, CCFP, FCFP, MPH Vicki’s direction, the National Abortion is the medical director of the Vancouver Federation has played a critical role in Island Women’s Clinic, which she promoting and preserving women’s access established with her partner in 2004. She to safe, legal abortion care. Since taking has worked for over 15 years providing the helm in 1995, Vicki developed a public pregnancy terminations in 5 provinces and policy program that brought abortion territories. She offers medical abortions providers and the women they serve with methotrexate and , and into the forefront of the public debate surgical terminations to 20 weeks. Konia about abortion; guided NAF in setting does research and provides workshops on the standard for quality abortion care in abortion and reproductive health topics. North America; led the introduction of She particularly enjoys regular teaching medical abortion (RU-486) in the U.S.; opportunities with midwives, nurses and and broadened NAF’s outreach and doctors through her appointment as a direct assistance to underserved women. clinical associate professor with UBC and Vicki is an expert on public policy issues, UVIC. reproductive health, and anti-abortion violence. Lorraine E. Weinrib was appointed to the Faculty of Law and the Department Pat Smith, MD is a family doctor by of Political Science of the University of training and has been an abortion provider Toronto in 1988. Previously, she worked for 16 years. She has provided care in in the Crown Law Office—Civil, Ministry a variety of settings, including a large of the Attorney General (Ontario), academic medical centre, small community holding the position of Deputy Director hospitals and free standing clinics. She is of Constitutional Law and Policy at the very interested in training new providers time of her departure. Her work included and works closely with residents and legal advice and policy development on medical students. Pat has been on the constitutional issues, as well as extensive Board of Directors of the National Abortion litigation, frequently in the Supreme Court Federation for 8 years and is currently the of Canada. At the Faculty of Law, Professor Chair of the Board. While on the Board Weinrib teaches the first year constitutional of NAF Pat has worked on the Medical law course as well as advanced courses Education, Clinical Policy Guidelines, and on the Charter, constitutional litigation, Quality Assessment and Improvement and comparative constitutional law.

78 Her writing, in which she advocates the institutional coherence of the Charter, includes articles on the interpretation of sections 1 and 33, the theoretical dimension of the Supreme Court of Canada’s Charter jurisprudence, the process leading up to the 1982 amendments to the Constitution, and studies of leading cases, e.g., Morgentaler (abortion), Ford (override), Keegstra (hate promotion) and Rodriguez (assisted suicide). Professor Weinrib holds law degrees from Yale and Toronto, and an undergraduate degree from York.

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