Evolution of Abortion Rights in Canada
Document Type:Research Paper
Since the liberalization of a restrictive criminal code provision in 1969, there has been no criminal offence in undertaking induced abortion in occasions when the pregnancy can be deemed to be endangering a woman’s life in one way or the other (Millar, Wadhera, & Henshaw, 1997). This was followed by the striking of the liberalization of the law governing abortion in 1988 by the Supreme Court. Since then no any abortion law has ever been legislated in Canada. This has therefore significantly contributed to the rapid rise in abortion cases in Canada. A research publication indicates that between 1975 and 1993 the n umber of repeat abortions increased from 9 to 29% (Millar, Wadhera, & Henshaw, 1997). The illegal abortion was accompanied by several life threatening events that would even lead to lose of life of women who underwent it.
In 1960s a series of movements targeting the liberalization of abortion commenced (Tatalovich, 2015). During this period, abortion was undertaken primarily to terminate a pregnancy that would cause dangers in the life the mother. This was the only form of abortion considered legal. The legal form of abortion also referred to as gestational approach required a qualified physician‘s approval. The Morgentaler case arose after three doctors, that is, Morgentaler, Smolling and Scott came up with a clinic in Toronto to assist women undergo abortion (Anderson, 1996). The main underlying reason was they did not have any legal certification from a committee of approved or accredited hospital as required for under section 251(4) of the Criminal law. The three were indicted on the charge of conspiring with each other with the motive to conduct abortions contrary to section 423(1) d and section 251(1) of the Criminal code.
Morgentaler, Smolling and Scott moved to the court to challenge the indictment (Anderson, 1996). Judges together with a panel discussed the constitutionality of section 251 of the Criminal code and questioned whether it breached the rights to life, liberty and the person’s security as stipulated under the provisions of section 7 of the Canadian Charter (Forest, Marchildon, & McIntosh, 2004). Additionally, with respect to the right to security of the person, Justice Wilson concurred with chief Justice that the guarantee protected both the physical and psychological integrity of a woman. With respect to Justice Wilson’s opinion, the principle of fundamental justice was inclusive of not only the concept of procedural fairness but also any infringement of other fundamental rights stated elsewhere in the Charter.
She noted that section 251 other than infringing section 7, it also infringed section 2(a), which guarantees everyone freedom of conscience and religion (Butler, & Walbert, 2014). However, the main question was whose conscience she meant, was it the conscience of the woman or that of the state? In conclusion, Justice Wilson suggested that for the state to take sides on abortion issues as it did while enacting section 251(4), it was to validate one consciously held view at the expense of another (Butler, & Walbert, 2014). Bill C-43, an Act Respecting Abortion In 1989, Brian Mulroney’s progressive government presented Bill C-43 to the parliament. In 1988 motion 36 offered by the government promoted 21 amendments of which none was accepted from the floor of the Commons (Butler, & Walbert, 2014). This provoked eleven motions by the backbenchers.
Mps who presented motions were either legislators representing the pro-life position, the pro-choice stand or compromise supporting therapeutic abortions. It was noted that of the 90 Mps who debated motion 36, pro-choice and compromise options united all women regardless of their political affiliation and men belonging to the New Democratic Party whereas the anti-choice viewpoint majorly attracted support from Liberal and conservative men (Butler, & Walbert, 2014). The anti-choice movement demanded a new federal criminal legislation that would clearly offer supremacy to fetal rights while pro-choice movement on the other hand argued about the re-criminalization of abortion. Summary Canada’s abortion law, like the majority of laws adopted at the time of Confederation, mimicked existing British law. Britain first adopted formal, universal restrictions to the procedure in 1803 with Lord Ellenborough’s Act, which prohibited certain kinds of abortion following the “quickening” (Keown1988, 15).
Notably, the intention of creating what might be assumed to be an anti-choice law today appears not to have been moralistic; rather, it was designed with a mind to protecting women from what were seen as unsafe medical practices (often associated with midwives) as well as safeguarding the domain of the medical profession (Gleeson 2011, 217). In the years that followed, the British Act was broadened to include abortion at all stages and by multiple methods, though those performed before the quickening were only seen as felonies and not as destroying a human life (Keown 1988, 18–19). The maximum penalty for both the woman seeking the abortion as well as the provider was life in prison (Campbell1977–1978, 223–224). The desire to protect existing power structures likewise played a central role in subsequent changes to Canada’s abortion law.
The first change to the law took place seventy years after the original law was implemented. A provision protecting physicians against prosecution for performing an abortion to save the life of a pregnant woman was incorporated into Canada’s Criminal Code in 1939(Haussman 2002, 63). As in the case of birth control, this change was incorporated to maintain a specific power hierarchy; it was created not to protect women, but in defense of doctors. The focus on physicians began to fade in the 1960s, as the women’s movement gained strength and pro-choice groups began to organize, though it was not yet gone. Conclusion Despite the efforts to re-establish an active abortion law, it is notable that almost every single effort has failed.
It now seems that the drive to have an abortion law has faced several critiques than support. This is evident since the Supreme Court ruling that regarded the abortion law as unconstitutional. The major drawback in this process has always been the contradicting aspect of section 7 of the Canadian Charter. Another significant setback has been politicization of the issue of abortion. , & Walbert, D. F. Abortion, Medicine, and the Law. Fideli Publishing Inc. Badgley, Robin F. No, the Charter of Rights has not given judges too much power (Links to an external site. )Links to an external site. Retrieved from http://www. theglobeandmail. com Forest, P. New York: Routledge. Hartmann, Betsy. Reproductive Rights and Wrongs: The Global Politics of Population Control. Cambridge: South End Press.
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