Abortion and the Law: A primer for politicians, pundits and the Canadian public
By Joanne Byfield

Anyone paying attention during last month’s federal election will recall Prime Minister Paul Martin’s frantic, last-minute attacks on the Conservative Party and leader Stephen Harper. Mr. Martin announced during a televised debate about a week before the vote that he would repeal section 33 of the Charter of Rights and Freedoms which allows governments to opt out of legislation. His announcement surprised many candidates within his own party. He went on to challenge Mr. Harper to commit to the same promise. When Mr. Harper declared his support for the so-called “notwithstanding clause,” Mr. Martin warned voters that the Conservatives wanted to restrict a woman’s “right to choose.”
    
I’m not sure that Mr. Martin ever used the word abortion. I read many news reports of the then-Prime Minister’s words and watched him on a CBC forum discussing the issue, and I never saw or heard the word. Mr. Martin expressed disbelief that the “right to choose” could even be an issue in Canada. We all thought that was “settled,” he opined. Day after day in city after city, Mr. Martin warned voters that the Conservatives would invoke the notwithstanding clause to restrict the “right to choose.”
           
This was utter nonsense. First, at its policy convention last March, the newly-formed Conservative Party passed a resolution not to introduce new legislation on abortion. Mr. Harper said whenever asked during the campaign that his government did not want to deal with abortion and that it would not bring in legislation.
           
Second, and more important, Mr. Martin misled Canadians about the current situation with respect to abortion. The Conservative Party could not invoke section 33 to restrict abortion because there is no charter right to abortion in Canada. Paul Martin, a lawyer by training, lied. In this, he was aided and abetted by the media, who complied either out of ignorance (that would be the charitable view) or because they wished it were so.
           
In 1969 it became legal to perform an abortion if a therapeutic abortion committee set up in a hospital approved the procedure to protect the life of a woman. All other abortions were illegal under the Criminal Code. That law was in effect until 1988 when the Supreme Court of Canada struck it down in the Morgentaler case. The court found that the law violated the charter on procedural grounds because it was not applied equally across the country. A majority also found that Parliament had a legitimate interest in protecting the fetus and that it had the constitutional right to enact a law restricting abortions to those which were necessary to protect the life and health of the woman.
           
Parliament did pass such a law in 1990 but a tie vote in the Senate killed the bill and that left Canada without any law whatsoever. That means that abortions can be performed for any reason up to the moment of birth. There are no legal restrictions on abortion in Canada. In some provinces there are guidelines put forward by the College of Physicians and Surgeons but these are not laws. A child is not accorded any rights, including the right to life guaranteed in section 7 of the Canadian Charter of Rights and Freedoms, until it has passed fully from the body of its mother.
           
As a result, in Canada there are now more than 105,000 abortions each year. Statistics Canada reports that that number is probably underestimated by 10% since  many private clinics, except those in Alberta, do not report their numbers. Almost 40% of the abortions are repeats.
           
We do not know from the statistics how many late-term abortions are performed in Canada. After about 20 weeks of pregnancy most abortions are performed by inducing labour. They are coded for billing purposes as inductions of labour or stillbirths. In some jurisdictions babies are first injected with potassium chloride to ensure they are dead before the abortion is performed. This prevents the baby from surviving the attempted abortion to be born alive.
           
In early February Margaret Somerville, the founding director of the McGill Centre for Medicine, Ethics and Law, wrote a column that appeared in several CanWest newspapers, in which she related two recent cases of physicians who phoned her for advice. Both cases involved women over 32 weeks’ pregnant. One, a 28-year-old grad student, wanted an abortion because her family would disown her if they knew that she was pregnant. The other had learned that her baby would have a cleft palate, “a relatively minor, correctable, congenital abnormality,” said Dr. Somerville. The doctors were uncomfortable about abortion in such circumstances and contacted Dr. Somerville for her advice. In the absence of a law, doctors are hard-pressed to refuse these requests.
           
During the election, Mr. Martin was allowed to freely assert that abortion was a charter right. No one in the media or other political parties contradicted the lie. Even the Conservatives, many of whom are pro-life (as are many Liberals), did not refute the statement but instead reasserted party policy. Of course, if the Tories had pointed out that there was no such charter right, that women in Canada were not guaranteed the right to abortion at any time for any reason and paid for by taxpayers, their political opponents and the media would have pounced. “Aha, so you do have a hidden agenda. You do want to force women into back alley abortions.”
           
Public and political discourse on this subject is pathetic. Ignorance abounds. This election proved beyond any doubt that LifeCanada’s role as a public educator is vitally important.

Joanne Byfield is the president of LifeCanada