The Continuing Controversy on Abortion

The most important fact to remember about medical abortion is that it has, in the last 20 years, become a procedure that is safer than appendectomy and tonsillectomy, and is 12 times safer than childbirth itself. Due in part to the use of vacuum curettage techniques, and to the use of local anaesthesia, the procedure can be readily carried out in freestanding clinics or even doctors' offices. Nine out of 10 U.S. abortions occur in clinics outside a hospital setting. Besides being safer than hospitals, clinics are usually more modern in their methods and equipment. The empathetic and supportive environment can be in stark contrast to the disapproving and judgmental attitudes which may greet abortion patients in general hospitals.

Most importantly, the medical benefit of decreasing delay cannot be sufficiently emphasized. Every week of delay increases the danger of major complications by 20 percent. The stress of waiting in itself contributes to illness.

Let me present a -history of past legal skirmishes as I have lived them. In 1967, a committee of the House of Commons examined changes to the existing abortion legislation. Then abortion was punishable by life imprisonment, unless the pregnancy endangered a woman's life. The Humanist Fellowship of Montreal presented a brief to the Commons committee, which I researched and wrote. It was the first public body to advocate abortion on request--a novel and revolutionary concept for its day.

The ensuing debate and my involvement had an effect on me that I had not anticipated. I was a general practitioner, yet women started coming to my office seeking abortions. Initially, I refused their requests, mindful of the consequences to an act of civil disobedience. My moral dilemma became acute. In refusing these women the help that I had publicly stated they deserved, I was condemning them to unsafe back-alley procedures, possible infertility, injury or death. But on the other hand, if I decided to help them, I was risking my medical license, the security of my family, and possibly a long jail term and financial ruin. Eventually, after a great deal of soul searching, I decided that it was my duty as a physician and a humanist, to practice what I preached. I started to provide abortions in my Montreal office in 1968.

In August of 1969, the new Canadian abortion law became effective. It legalized abortions in the event that pregnancy was a threat to the life or health of the woman, as approved by a hospital's therapeutic abortion committee. Sixty percent of all hospitals opted not to provide the service, which de facto meant that many women were denied access and all were subject to delays. Needless to say, the demand was such that my practice continued to grow. It served both Canadian and American women.

The inevitable raid occurred in 1970. While the wheels of the law slowly ground forward, I continued to practice. Slowly too, American laws were being liberalized, and the historic Roe vs. Wade decision, invalidating all state laws against abortion, practically coincided with my first trial, which took place in Montreal in October, 1973. That trial, before a FrenchCanadian Catholic jury, ended in an acquittal. It was a great victory. I hoped it would provide a precedent, as had the trial in Britain of Dr. Aleck Bourne, in 1939, which effectively put a stop to prosecutions until British laws changed in 1967. In that celebrated case, Dr. Bourne had provided an abortion to a fourteen-year-old girl who had been raped by soldiers. He was acquitted and his case could henceforth be used by British doctors to point out the distress of women seeking abortions as a justification for the procedure.

However, the Canadian story unfolded quite differently. Premier Bourassa's government in Quebec appealed the jury decision. This right, to appeal a jury verdict, does not exist in the U.S. or Britain. But it does in Canada to this day. What was worse, a Court of Appeal had the right not only to cancel the verdict of the lower court, but also to substitute its own. For the first time in Canadian history, the Court of Appeal of Quebec overturned a jury verdict of innocence and declared that I was guilty. I was sentenced to 18 months in prison. The Supreme Court of Canada, in 1975, approved this decision. On March 27, 1975, I began to serve my sentence in Montreal's Bordeaux jail.

The Quebec government, trying to break my morale, and hoping for a jury conviction, immediately began proceedings with another trial, while I was in prison. That trial produced another acquittal but I was still in jail. This situation created an uproar among civil libertarians. John Diefenbaker, then in opposition, introduced the bill that would prevent a Court of Appeal from overturning a jury verdict. The resulting amendment to the Criminal Code is known as the Morgentaler Amendment.

In January, 1976, after 10 months in jail, the Federal Minister of Justice annulled the guilty verdict of the Appeal Court and ordered a third trial, a retrial of the first charge. Not double but triple jeopardy! A third acquittal in September of 1976 was about to be followed by a fourth trial, when Bourassa's government went down to defeat. The Levesque government promptly cancelled the projected trial, withdrew the threat of further judicial action against doctors, and agreed that the law, as it stood, was deficient and unenforceable. In the intervening years since 1976, I have trained about 50 doctors to provide abortions in community clinics, operated and financed by the Quebec Government. Today, Quebec leads the country in providing safe abortions and a benevolent policy of access.

While the situation was improving in my home province, it was deteriorating in the rest of the country. The anti-choice movement, mostly conservative Catholics and fundamentalist Protestants, concentrated on the weakness of the legislation to take over hospital boards for the purpose of eliminating the abortion services. Access for women shrank as hospital after hospital caved in to pressure tactics. In response to that development, I reluctantly decided to re-enter the fray in 1982.

That meant opening two clinics, one in Winnipeg and the other in Toronto, in May and June of 1983. Both clinics were duly raided, and the Toronto trial commenced. The judge rejected our challenge that the law violated the new Charter of Rights, but, nevertheless, another jury (the fourth) handed down a verdict of not guilty, in late 1984.

In what was by then becoming deja-vu, the Government of Ontario appealed the jury verdict. The Court of Appeal cancelled the acquittal, but this time, due to the Morgentaler Amendment, they could not send me to jail. They ordered a new trial. It was my appeal of that order which had its culmination in the historic Supreme Court of Canada decision of January, 1988, invalidating the abortion law.

While it seemed the judgement could not be clearer, and the struggle for dignity and autonomy for women was given a considerable boost, the reality remains that access to abortion in this land is still far from satisfactory. It is indeed a major problem in Canada at this point in many parts of the country. Thousands of women have to travel long distances to reach the limited number of institutions that provide abortion services. On Monday of this week, I worked at the Morgentaler Clinic in Winnipeg. Out of 17 patients that day, we had four who came from Saskatchewan and four who came from Alberta, travelling 8 to 16 hours by car or bus to reach Winnipeg. In our Montreal clinic, one-third of our patients come from the Atlantic provinces for a total of 500 per year. When you add up the fatigue, stress and increased cost as well as the delays involved, you get a picture of how women are still exposed to unnecessary suffering and risk.

Reactionary provincial governments have moved to curtail the rights of women in Atlantic Canada. When I chose Halifax as the site of a badly needed Maritime clinic, the government passed legislation which restricted abortions to approved hospitals. That was exactly one of the provisions struck down two years ago by The Supreme Court of Canada. The legal challenge to this legislation is, of course, going ahead. In the meantime, the Nova Scotia courts have consented to a government request to grant an injunction not to let me practice in the interim which I am now appealing to the Supreme Court of Canada. My trial in Halifax will be held in June, and, it still feels like Quebec, 1973. For now, the women of the region still have to trek to Montreal or the States while the callously indifferent Nova Scotia Government sits undisturbed by its deliberate inflicting of pain and suffering on women.

I wish to comment now on our new abortion legislation before Parliament, Bill C-43. The first point about this Bill is that it is completely unnecessary. We have lived now in Canada for over two years without any law on abortion and the sky did not cave in. The Province of Quebec has not enforced the. past criminal abortion law since December, 1976, and for the last 13 years, Quebec did very well without an abortion law. In fact, access to abortion is better now in Quebec than in any other province, with positive effects on the health of women and children. The decision on abortion belongs to the woman involved, taken usually in consultation with the man in her life if he is present and the relationship is .,.- good. The doctors willing to provide medical relief are regulated in each province by the College of Physicians & Surgeons that supervise the quality of care. To complicate matters by involving the criminal process on top of all this is clearly superfluous and must be seen as a concession to the anti-abortion lobby with potentially disastrous consequences to access.

My major philosophical disagreement is that Bill C-43 takes away from women their recently hard-won autonomy and dignity. It does so by returning them to a paternalistic system that takes decisions about their bodies and their lives and places it, once again, in the hands of others who are presumed to know, better than they do, whether motherhood is healthy for them or not.

The decision to terminate a pregnancy is not one taken lightly or frivolously. The decision ought to be taken by a woman or couple with a doctor willing to provide help, as the Canadian Medical Association recommends. The criminal law should not be present, as a Damoclean sword lurking in the consulting room. A woman does not deserve to be forced to role-play a sick person in order to ensure agreement from a doctor, who may be charged with a criminal offence for a wrong diagnosis, with patients liable to be accomplices.

The significant differences of this law and the previous one are that the word "health" becomes more specifically "physical, mental, or psychological health", that a committee of doctors becomes one legally vulnerable physician; and abortions may be performed in free standing clinics. Ironically, this is the very point the Nova Scotia legislature has just made illegal. However, most significantly, abortion is once more part of the criminal code. It may be considered a crime again, carrying a penalty of two years for the doctor and the woman, if provided outside the accepted parameters of the law. This is wrong and possibly unconstitutional under the Charter. A freely chosen abortion is a moral, ethical and responsible decision, certainly not a crime. The law exposes doctors to third party litigation. Doctors will now be forced to choose between a woman's security and her right to determine her priorities and aspirations, and the doctor's own security, that is, the perfectly sensible fear of the criminal code. Many doctors will stop providing abortion services to women because of this threat. Thus, access will become even more difficult than it is now.

I believe the Bill is fundamentally flawed and I hope it will be defeated. Should it pass, I hope the government will be decent enough to seek the opinion of the Supreme Court of Canada about its constitutionality before it becomes law. Canadian women deserve better than the gratuitous insult of this legal monstrosity. Canadians deserve better than an irrational law leading to hypocrisy, breeding disrespect for law in general.

Let us put the abortion controversy into some kind of perspective. Abortions have moved out of the back allies and into the best of care that medical science can offer. This is a reflection of a caring society. It is time that laws for a mature country be enacted that are rational and respect the lifestyles and individual conscience of all citizens in a pluralistic society. In the words of Chief Justice Dickson, "a truly free society is one which can accomodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct". The full acceptance of women as equals of men is adding a new dimension to the adventure of humankind. It is part of the steady progression toward the recognition of the dignity and rights of groups which had previously been discriminated against. Slaves, prisoners of war, and especially children, are examples of groups that, at certain times in history, used to be treated with brutality and senseless neglect until recently. We now recognise how important it is to raise a child with love and affection, if we are to produce a caring and nurturing adult.

Most countries have now recognized the right of women to participate fully in the construction of a society that, up to now, had been the preserve of men. This revolutionary change has, not surprisingly, been opposed by many elements that are recalcitrant, those who remain obedient to dogma, to tradition and the heavy legacy of past conditioning.

The real problems of the world--starvation, misery, poverty, pollution of the environment, and the potential for global violence and destruction--call for concerted action on the part of governments, institutions, and society at large to effectively control overpopulation. It is imperative to control human fertility and to bring children into the world only when they can be well taken care of, receiving not only food, shelter and education, but also the emotional sustenance that comes from a loving home and parents who can provide love, affection and care. In order to achieve this, women across the world have to be granted the rights and dignity that they deserve as full members of the human community. This would naturally include the right to safe medical abortion on request.

As we approach a new decade, a new century, and a new millenium, let us dedicate ourselves to the achievement of a just and compassionate society where women work together with men in equality and love, to bring about a millenium of universal brotherhood and sisterhood based on the potential of human beings for goodness, creative self-realization, a loving acceptance of self and others, and a sense of responsibility towards the planet, other species, ourselves and the future of our children.

I wish to finish on a personal note. Over the years, many people have asked me, "Why did you decide to expose yourself to so much stress and danger in a controversial cause, and why do you persist in doing so?" The answer, after a great deal of reflecting about it, is the following: I am a survivor of the Nazi Holocaust, that orgy of cruelty and inhumanity of man to man. As such, I have personally experienced suffering, oppression and injustice inflicted by men beholden to an inhuman, dogmatic, irrational ideology. To relieve suffering, to diminish oppression and injustice is very important to me. Reproductive freedom and good access to medical abortion means that women will be able to give life to wanted babies at a time when they can provide love, care and nurturing. Well-loved children grow into adults who do not create concentration camps, do not rape and do not murder.

They are likely to enjoy life, to love and care for each other and the larger society.

By fighting for reproductive freedom, I am contributing to a more caring and loving society based on the ideals of peace, justice and freedom, and devoted to the full realization of human potential. Having known myself the depth of human depravity and cruelty, I wish to do whatever I can to replace hate with love, cruelty with kindness, and irrationality with reason.

This is why I am so passionately dedicated to the cause I defend and why I will continue to promote it as long as I have a valid contribution to offer.

The appreciation of the meeting was expressed by Sam Blyth, President, Blyth and Company and a Director of The Empire Club of Canada.