Mulroney-era documents reveal detailed debate of Canada’s abortion laws

By Stanley Tromp, The Canadian Press (in the Globe and Mail), Nov. 17, 2013

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Recently declassified federal cabinet documents show Canada could have been a very different place for women seeking abortions and the doctors who provide them if then prime minister Brian Mulroney had bent to the wishes of some cabinet heavyweights.

The minutes of cabinet meetings, sealed for 20 years and obtained by The Canadian Press under the Access to Information Act, open a window on the tensions between ministers who wanted abortion outlawed — indeed punishable by up to 10 years in prison for those who performed the procedure — and those who wanted a far greater latitude on a woman's right to choose.

In an ironic twist, it was the Senate in 1991, an institution maligned in recent weeks to the point of deafening calls for its demise, that killed the best compromise Parliament could come up with, resulting in the legal vacuum most Canadians have by now accepted.

As a result, Canada today is one of the few nations with no laws governing abortion. About 100,000 such procedures are performed each year, and no administration since then has dared to legislate on the subject. Prime Minister Stephen Harper has stated he has no interest in revisiting the issue, although some Conservative backbench MPs continue to press ahead with private members bills.

The records of the late 1980s also show the Conservative cabinet privately considered criminal penalties for women who self-aborted. One draft resolution would have banned the abortion of malformed fetuses. Another proposed that the stress caused to a woman by an unwanted pregnancy should not be considered a health danger and that the social and economic considerations of a woman facing an unwanted pregnancy should not be taken into account.

All those features were dropped from Bill C-43, which passed the House but was defeated in an unprecedented tie vote in the Senate.

"None of us was gung-ho for new legislation but we did feel we had a duty to try," former Conservative senator Lowell Murray, who acted as a neutral referee between the factions, said in an interview.

"A decision not to act would certainly have drawn scornful criticism from all quarters in the political arena."

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The story began Jan. 28, 1988, when the Supreme Court of Canada threw out the nation's abortion law by ruling that Section 251 of the Criminal Code violated the Charter of Rights by denying women their "security of the person." In doing so, it overturned an Ontario appeal court ruling against longtime abortion activist Dr. Henry Morgentaler, who died last May.

However, the judges also said a woman's right to an abortion, especially in the later stage of pregnancy, can be subject to reasonable limits imposed to protect the unborn or the woman's life or health, and it sent the issue on to Parliament to resolve.

The bombshell ruling elated pro-choice advocates and devastated anti-abortionists. It also created a legal gap that the newly released documents show left the Conservative cabinet bewildered.

The legal void was regarded as intolerable, in need of filling. Ottawa embarked on a gruelling three-year quest to produce a new law.

Leading the opposing sides at the cabinet table in the dark, oak-panelled Room 323-S were two of cabinet's most influential ministers.

Health Minister Jake Epp, a devout Mennonite Christian from Steinbach, Man., persistently pleaded that an infant's life starts at the moment of conception. Barbara McDougall, of Toronto, was the minister for the status of women and she urged more free choice for women.

Epp's lengthy speeches predominate in the minutes, but at one point, Mulroney pointed out McDougall was the only woman sitting on cabinet's powerful 20-member priorities and planning committee. Mulroney noted the imbalance did not represent the general population, and he warned committee members McDougall's views on abortion "were therefore not to be taken lightly."

Said McDougall in the committee: "They did not, on balance, view the judgment as a victory. Rather, there was a sense of relief that the most restrictive elements of the law had been struck down. The practical concern was that there was no legal definition of the time frame in which an abortion could be performed."

A special ad-hoc cabinet committee on abortion was created, chaired by Murray, who advised ministers to avoid extreme restrictions because "the government would look like fools if it passed a law that was subsequently thrown out by the Supreme Court."

The minutes show the debate in cabinet revolved mainly around two visions. In the first approach, access to abortion was initially freer but would become much more restricted as the fetus developed.

In the second approach, the same restrictions would apply all across the pregnancy. Anti-abortionists such as Epp pushed hard for this option, arguing life started at conception and setting dividing lines between stages would be medically and ethically too "arbitrary." They wanted no free choice at any stage.

The special committee reported it favoured a law allowing abortion at an early stage — up to somewhere between 12 and 28 weeks — but afterwards only if the mother's life was in danger.

It was not accepted as the final word.

The minutes show Epp objected, saying "the implications of such an approach were frightening should a similar approach be taken for the elderly or the disabled." Later that month, one draft resolution presented would "exclude physical or mental abnormalities of the unborn child as a reason for obtaining an abortion."

In April, Mulroney sensed that "public feelings against abortion may be hardening in the country."

One minister said, and Mulroney agreed, that abortion should be the government's top priority, as it was for country. The minutes say: "The debate was too wrenching and divisive to be allowed to continue much longer."

The debate dragged on past the 1988 general election which saw the Tories re-elected.

In 1989 a new cabinet set about again to try to design a new law.

The minutes show McDougall urged that the cabinet endorse a three-stage option allowing abortion under certain circumstances in the early stage, becoming more restrictive in the second stage and then more so in the last stage.

Kim Campbell, then minister of state for Indian affairs, supported a two-stage approach — allowing it in the early stage, with restrictions later — "as it codifies what currently exists and the only issue that remains is who is best placed to make the decision."

But the minutes show Mulroney "was concerned that the government's approach be in tune with a modern society, and avoid steering too far to the right."

Communications minister Marcel Masse voiced his dislike of any criminalization of abortion and strongly endorsed the three-stage approach, but fisheries minister Tom Siddon "emphatically" stated his disappointment that cabinet did not protect the rights of the fetus.

After reviewing the debate, Murray concluded that most ministers, including Epp, could agree with a two-stage approach.

But there were more modifications to come: The last major obstacle was the Tory backbench caucus, which contained many more hardline anti-abortion MPs than did cabinet.

This final proposal was drafted as Bill C-43, which made it a criminal offence to induce an abortion on a woman at any stage unless it was done by, or under the direction of, a physician who considered that the woman's life or health was otherwise likely to be threatened.

The term "psychological" was added to physical and mental "health," and the penalty for violations was to be two years imprisonment, down from an earlier proposal of five years and the original cabinet suggestion of 10.

Epp thought this new one-stage solution would be accepted by caucus overall, and ministers "would have to put water in their wine."

McDougall had a different view of it, lamenting that the pro-choice numbers were smaller in caucus, and that "women in cabinet would be bitterly disappointed but would do what had to be done."

Justice minister Doug Lewis introduced this bill into the House of Commons, and on May 29, 1990, it passed in a free vote by 140 to 131. It was sent on to the Senate for approval.

Then a shock ensued. On Jan. 31, 1991, of 86 senators present, the vote split 43 to 43 on the bill. Under Senate rules, a tie vote is deemed to be negative and so it failed. Cheers erupted from pro-choicers in the packed Senate gallery.

In an interview with The Canadian Press, McDougall praised Mulroney’s management of the topic, but added that Bill C-43 was so flawed that she didn't regret that it failed in the Senate.

“It was the best the drafters could do with a divided country, but it was not a good bill.”

Mulroney declined to be interviewed about the abortion saga and the topic is absent from his 1,152 page memoirs.

Epp could not be reached for comment.

McDougall said she's content on abortion’s position in the Canada Health Act, and there is no need to legislate on the matter again.

"It is best to let sleeping dogs lie. It is a personal moral decision for each woman.”

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