Prior to 1803, various church and local governments administered abortion laws in England. In 1803, the Ellenborough Act was passed which treated abortion after quickening as a felony. This reflected the scientific knowledge available to them at that time about human development. British North America followed British law.
In 1837, the Ellenborough Act was amended to ban abortion before and after quickening.1 The colonies of Newfoundland, Upper Canada and New Brunswick made the same change in their laws within a few years. Canada’s first Criminal Code in 1892 reflected this view and with small revisions, this became s. 251 of the Criminal Code.2 Another change in 1869 meant that both doctors and women who have abortions could be charged for breaking the law. This remained the law until the 1960’s when Canada followed Britain in changing their law.
The Omnibus Criminal Reform Bill (1969)
With the slogan, “The state has no business in the bedrooms of the nation,” Pierre Trudeau’s government introduced the Omnibus Criminal Reform Bill in 1969. This bill legalized abortion, divorce and birth control, among other practices. It was introduced by the Trudeau government as a way of modernizing the law. Putting all these changes in one bill was a deliberate strategy by the Trudeau government. They wanted to ensure that MPs were forced to support the bill if they wanted to modernize most of these laws, even if they were opposed to changing the law for one of those issues. For example, an MP that wanted to change divorce laws had to support the changes to the abortion law too. The tactic worked and the Omnibus was supported by most MPs.
This Bill changed S.251 of the Criminal Code, allowing for abortions in hospitals for the “life or health” of the mother. Under the law, other abortions were still illegal and doctors could be charged with life imprisonment while patients could be charged with two years imprisonment.3
But the word “health” was not a clearly defined concept and even the World Health Organization at that time defined the term as, “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”4 In other words, abortions could be justified for almost any reason.
To help with this problem, the Trudeau government created therapeutic abortion committees at hospitals that would work to define “health” – basically, they would determine who could have an abortion.5 This meant abortion was not uniformly available across the country. If pro-lifers controlled the committee, most abortions were denied. If abortion advocates controlled the committee, most abortions were allowed.
The Morgentaler Decision (1988)
In 1988, the Supreme Court of Canada struck down the abortion law because they said it prevented women from having equal access to abortion across the country. But despite the 1969 law being overturned, it did not mean the courts endorsed the idea that there should be no federal legislation regulating abortion or protecting pre-born children. It wrote that Parliament has a right to make a new abortion law. Subsequent Supreme Court cases have echoed this sentiment.
Brian Mulroney’s Conservative government responded to the Morgentaler Decision by creating a committee of government members from all sides of the abortion debate to draft legislation for a new abortion law. They were instructed to write a compromise bill that would not be struck down by the Supreme Court and would not antagonize most Canadians. Members who were abortion advocates, did not want to see abortion in the Criminal Code and if it had to be there, they argued that it should be for late term abortions only. However, pro-life members argued that the gestational argument was not acceptable because “it sent out a message that life was not valued except after a certain period of time.”6 That sentiment won out and made no mention of the age of the fetus.
In 1990, Bill C-43 was introduced. It made abortion illegal unless a physician found that a pregnancy threatened a woman’s physical, mental or psychological health. The bill passed the House of Commons in 1990 because of support of the government and a few opposition members. However, it was defeated in the Senate because of opposition from both abortion advocates and pro-lifers.
Some pro-life supporters, including one political staffer at that time, argued that this compromise bill would have been ruled as constitutional by the Supreme Court of Canada and was the best legal protection for the pre-born that the government could provide.7 However, other pro-life and all abortion advocacy groups opposed the legislation and they succeeded in convincing enough of their political supporters to defeat the law in the Canadian Senate.
Mulroney warned the pro-life movement that if they fought to defeat the bill, he would not touch the issue of abortion again—a promise he kept. Today, none of the political parties represented in Parliament officially support drafting a new abortion law. Canada is the only country in the Western world with no such law.
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- www.abortionrights.org.uk/index.php?option=com_content&task=view&id=18&Itemid=44, accessed on July 2, 2010.
- Robert Campbell et al., “Courts, Politics and Morality: Canada’s Abortion Saga“, The Real Worlds of Canadian Politic Cases in Process and Policy, Peterborough, ON, Broadview Press, 1991, p5.
- F.L. Morton, Morgentaler v. Borowski: Abortion, the Charter and the Courts, McClelland & Stewart Inc., 1992, 90.
- Constitution of the World Health Organization, July 22, 1946, as amended to 1977, World Health Organization Basic Documents Twenty-seventh edition, Geneva, 1977.
- Raymond Tatalovich, The Politics of Abortion in the United States and Canada, M.E. Sharpe, Armonk, New York, 1997, 34.
- Paul Racine Abortion and the Issue of Compromise, Draft copy written around the time of the debate about Bill C-43, 4.
- Racine, 4.