A Landmark Victory For Reproductive Liberty

by matttbastard

celebrate 20 years of choice

On January 28th, 1988, the Supreme Court of Canada tendered a watershed decision in the case of R. v. Morgentaler, rendering Canada’s restrictive abortion law null and void.

Judy Rebick recalls the moment she received word that the had court struck down the law:

It was freezing cold. A group of pro-choice activists were standing in front of the clinic along with a mob of media waiting to hear the news from our comrades in Ottawa. They were supposed to call the clinic as soon as the decision came down and the clinic staff would let us know. We didn’t have cell phones in those days.

A reporter called me aside and said she had just heard on her radio that the Supreme Court had struck down the law on the grounds that it interfered with women’s right to security of the person. I didn’t believe her. We thought the Court might very well strike down the law but we figured it would be on the technical grounds of lack of equal access. A decision based on the Charter guarantee of security of the person was too much to hope for. After all, the major argument of the pro-choice movement was that a woman had the right to control her own body and this was close.

Indeed the majority decision written by Chief Justice Brian Dickson stated:

“State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 (the old abortion law) clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.”

It was a profound and incredibly long lasting victory that for us was of equal significance to the winning of the right to vote a couple of generations before. In essence, the highest court of the land said that the abortion law violated women’s right to control her own body free from state interference.

Berlynn points to the minority report, written by the late Justice Bertha Wilson, which goes even further in highlighting her recognition that abortion is a necessity:

This decision is one that will have profound psychological, economic and social consequences for the pregnant woman. The circumstances giving rise to it can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.

Today we rightly celebrate the vindication of a woman’s right to exercise the “profound social and ethical” decision of controlling her reproductive destiny without fear of condemnation by the state. But we should also remember that, for too many women in Canada, the struggle for reproductive autonomy is far from over. 20 years after R. v. Morgentaler, access is still far from universal:

In Canada, access to health services is guaranteed by the Canada Health Act. Abortion is considered a safe, legal, insured and funded service, meaning that a woman should not have to pay for abortion services in Canada.

However, access is variable across the country and women are charged fees at some facilities. For example:

  • There are no abortion services in Prince Edward Island.
  • In New Brunswick, to have a publicly funded abortion a woman has to have approval from two doctors to have an abortion in the hospital. If she has an abortion at the clinic, then she will have to pay as the province will not pay for abortions outside publicly funded facilities, such as hospitals.
  • New Brunswick funds only abortion care provided by obstetrician/gynecologists, not family physicians as is common throughout the rest of Canada.

Some of these barriers may violate the Canada Health Act and the intent of the decriminalization of abortion in Canada.

Abortion is funded under provincial and territorial health plans, and coverage varies regionally.

According to the Abortion Rights Coalition of Canada, even though “two-thirds of all abortions are done in a hospital and covered by Medicare”, today “less than one in five hospitals provide abortions, making it difficult for women to access safe and timely abortion services.” This especially affects those women who are financially insolvent and/or reside in remote/rural areas of Canada by placing “undue physical and financial stress on women when forced to travel long distances, find accommodation, take time away from work and, in some cases, have to pay for the abortion themselves.” Furthermore, as Joyce Arthur noted this past November, there are a number of anti-choice activists in Canada who would eagerly re-criminalize abortion altogether, penalizing women (and abortion providers) for engaging in Charter-protected reproductive liberty:

In a disturbing section of November’s The Interim (“Canada’s Life and Family newspaper”), five prominent anti-choice spokespersons plus an anti-choice columnist consider the question of criminal punishment for abortion, if abortion were to be made illegal again. Shockingly, four out of six believe women should be prosecuted and sent to jail, while the other two want women subjected to mental health treatment. All six want abortion providers to be prosecuted for murder

The majority of Canadians would likely be horrified by the idea of sending women to jail for having abortions. Most reasonable people would see it as abhorrent and heartlessly punitive – not to mention totally unrealistic, given the large numbers of women who resort to abortion even when it’s illegal. But the unimaginable prospect and horrific consequences of trying to arrest and jail 100,000 women a year in Canada alone do not seem to faze anti-choicers.

April Reign captures the cruel folly of such proposed measures:

There is a mistaken belief that if abortion were completely outlawed no more abortions would ever be preformed. This of course is ridiculous nonsense. Women have always practised birth control and abortion. And would continue to do so.

Of course, anti-choicers don’t desire the outlawing an essential (gender-exclusive) medical procedure because they actually care about the purported “rights” of the unborn:

For all their talk about valuing babies and life, anti-choicers have demonstrated time and again that they could actually care less. They’re more interested in punishing women for sex and in maintaining a male-dominated family model. And they’re only “pro-life” up until the moment of birth — then you’re on your own.


There are no two ways about this one — when abortion is illegal, women are killed and maimed. Some 80,000 women die as a result of illegal abortion every year; hundreds of thousands more are injured. Women around the world suffer when pro-life laws rule the land. Andpro-liferscould care less. Illegal abortion is the cause of 25% of all maternal deaths in Latin America, 12% in Asia, and 13% in sub-Saharan Africa. Women’s lives, apparently, aren’t covered by that whole “pro-life” thing.

Make no mistake: now more than ever, a woman’s body is a moral battle ground. We can’t cede any ground to anti-choice zealots who would fallaciously and callously equate potential people with human beings, acorns with oak trees–no matter how “reasonable” compromise may seem in theory (especially to those who don’t possess a uterus–“objectifying [the decision], thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma,” as Justice Wilson further noted in her Minority Report). Those who believe in the rights of women as being 100% insoluble–the whole loaf or nothing, no allowance for seemingly tiny nibbles, until there’s nothing left but crumbs–must remain ever vigilant and assertive in the wake of the baby lobby’s concerted assault on a woman’s bodily sovereignty.

Update: More Choice Day posts from: Alison @ Creekside, Dave and The Rev @ The Beav, skdadl-with-one-‘sk’, Daev @ Designated Protest Zone, Lulu, pale @ ACR, JJ Hippie, Canadian Cynic (also here), Dr Dawg, The Regina Mom, Kuri, Fern, dBO, Mike @ Rational Reasons, Antonia, Miss Vicky, 900ft Jesus, Chet Scoville, F-email Fightback and BJ Bjornsen.

Update 2: Even more from Red Jenny and That Buzz Between Your Legs.

Updated 3: More! More! More! (h/t Antonia Z) Justice is a Woman With A Sword, Megan’s Place, Aurelia (absolute must-read) and The Pedgehog.

Update 4: Welcome Feministe readers! Make yourselves at home, drinks are in the fridge, etc.

Update 5: Great quote over @ Yappa Ding Ding.

Update 6: Always worth teh wait for teh Kitteh.

Update 7: Two more late entries: CathiefromCanada and Purtek.

Update 8: Nikita @ Ranting and Raving is succinct and on point:

This is an immeasurably important choice and we must be on guard to ensure it does not get taken away from us.


Recommend this post at Progressive Bloggers