Abortion: Legal History

Prior to 1969, abortion was illegal in Canada except to preserve the life of the mother. At this time, the Liberals and Trudeau altered Section 287. Every hospital was to have a committee of three doctors who would determine if the abortion was necessary to preserve the life, health or psychological well-being of the mother. Since health and psychological well-being were not well-defined terms, inconsistencies between hospital committees and their application of the law arose.
Enter Dr. Henry Morgentaler.
Morgentaler believed that people had a right to control their own reproduction. Ironically, instead of advocating self-control, be it abstinence or any form of birth control, Morgentaler was a staunch advocate of abortion on demand. He began performing abortions illegally and eventually challenged the Criminal Code. In 1988 it was determined by the Supreme Court of Canada that Section 287 violated a woman's Charter Rights, specifically section 7. Section 7 of the Charter of Rights and Freedoms states that "Everyone has the right to life, liberty, and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Curiously, this right was not extended to the unborn. It is a matter of continuing debate as to whether or not this section truly applies to a woman desiring abortion for no reason other than late birth control. Furthermore, challenges to the ruling were not to be permitted.
The Supreme Court advised the government to create an adequate law to replace Section 287. The Conservatives did so, and under Kim Campbell a law prohibiting abortions except to save the life of the mother made it through the House of Commons. It was blocked by the Senate in an extremely rare tie vote. There have been few attempts to restrict abortions since then. In June 2006, Private Member's Bill 338 was tabled by Liberal MP Paul Steckle. The bill, which prohibits abortions (except to save the life of the mother) beyond 20 weeks, has not yet been debated on.
The result is that Canada is one of the few countries in the world with no restrictions on abortion whatsoever. A woman may legally have an abortion until she delivers. While abortions beyond the second trimester are very rare, they can and do still happen.
Related to the state of abortion in Canada is the issue of fetal rights. In 1989 the Supreme Court ruled in the case of Tremblay v. Daigle that the father of an unborn child has no legal rights to it. Tremblay had tried to obtain a restraining order against his girlfriend, preventing her from having an abortion. That restraining order was eventually rendered moot. In 1996 in the case of Brenda Drummond, the court ruled that since the fetus is not legally defined a person, it was not entitled to any legal rights. Drummond had attempted to perform a self abortion with a pellet gun, despite the fact that by this time obtaining an abortion from a hospital or clinic was easy. The baby was born a few days later and saved with an emergency surgery. When the bullet was discovered lodged in the baby's head, the father tried to charge Drummond with attempted murder. The charges had to be dropped.
The result of these rulings are that neither the unborn nor the father of the unborn have any rights.


Joanne (True Blue) said...

Good stuff, Ruth. It's interesting to see the history laid out like this.

I applaud what you are doing to try and enlighten people on this subject. I can't believe the number of Canadians I have personally talked to that are under the impression that we have some kind of abortion law in Canada.

Canadian Tar Heel said...

Hi Ruth,

(1) As I commented in your post about "Abortion Myths", I'm not quite sure what you're advocating. Are you calling for laws against particular abortions, against abortions during after certain time periods, a prohibition subject to exceptions, policies, or other?

Would you mind clarifying?

(2) ... instead of advocating self-control, be it abstinence or any form of birth control ...

Presuming a lack of self control is a pretty big assumption, especially when it comes to legislation and policy.

Ruth said...

Tar Heel, at this point I have advocated nothing. Please refer to my post entitled "Abortion: Intro to the Discussion." This particular post is only the second of what is to be a series on the issue.
Please note that I do plan to present what I feel is a suitable solution to the lack of abortion laws in this country. However, I have to lay the ground work before I can do this. Consider Canada's legal history on the subject part of that ground work.

Anonymous said...

Meanwhile back in the Labs the Scientists keep decoding the DNA and in one case found the Down-sydrome string so parents can plan for services and special Education classes , BUT, it seems this break through has morphed into justifying an Abortion to stop any of them from being born.

About 10 years ago I predicted that the Pro-abortion movement among the militant gay population would rue the day that they defended the pro-choice stance while Canada had no laws to protect humans before they leave the womb.
When Science discovers the Gay gene it will be impossible to stop a female from aborting the child because there would be no way to prove a motive of Homo-cide , and
it would happen in the first portion of conception where nobody would spot the pregnancy.
I often wondered if Star Trek was void of handicapped humans from birth because they stopped them from being born , Cpt Pike had a accident and technology helped him but other than Spock being Hearing-Superior with large ears, most episodes had able bodied people and few were overweight as well.

Vek said...

Meanwhile back in the Labs the Scientists keep decoding the DNA and in one case found the Down-sydrome string so parents can plan for services and special Education classes

Down syndrome is a case of trisomy 23, there is no Down syndrome gene. It's 3 copies (by mistake) of chromosome 23, rather than the usual 2 (one from mom, one from dad). Most trisomy is fatal, but in the case of 23, and some combinations of the sex chromosomes, it's not.

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