25 Years after R. v. Morgentaler: Where does the law go from here?

28 Jan

It is scary to think that when my mother was pregnant with me more than 27 years ago, she would have been required to ask permission of a panel of (mostly male) doctors to have an abortion. Two years after my birth, the Supreme Court of Canada struck down the Criminal Code provision relating to abortion and made Canada one of an elite few nations that has no law restricting abortion. While having no laws restricting abortion is an important part of reproductive justice, it is by no means sufficient. The law must also actively protect access and remove all barriers.

Other than piecemeal laws and injunctions protecting individual clinics, many patients attending at private abortion clinics, and sometimes even hospitals, must face protesters simply to get in the door. In Fredericton, New Brunswick, the protestors have their “home base” within 1 foot of the Morgentaler Clinic and are able to physically get in the face of patients. There is no law in N.B. to protect a woman’s right to access abortion services free from harassment. In the case of N.B., the political will to protect women is almost non-existent and so woman are screamed at, shamed, and tormented simply for trying to access healthcare. To add insult to injury, they are forced to pay out of pocket, in violation of the Canada Health Act, or endure the humiliation of asking two doctors for permission to access healthcare. This in a province where I knew a girl who was forced to keep her family doctor despite his refusal to provide her with contraception because she was unmarried, because of a shortage of family doctors. She certainly would not be able to get a referral from him, and if not him, who? Dr. Morgentaler has launched yet another legal case against the province of N.B. for their violation of the Canada Health Act. Similar lawsuits in other provinces started by Dr. Morgentaler have been successful and it seems that it is only a matter of time before this is the case in N.B.; however the Province has dragged the case along for almost 10 years since it was launched in 2003, with procedural motions and hopeless appeals.

In Ontario, there are laws and injunctions meant to protect women from harassment when attending at clinics, except there are a handful of anti-choicers who show flagrant disregard for the law and not only protest outside the clinic, but trespass and enter the clinics so as to terrify, torment, and shame the patients and clinic staff. The courts continually throw these individuals in jail but the moment they walk free, buoyed by the support of an ever dwindling number of Canadians, they are immediately back to their old tricks. The laws protecting clinics and women are weak and anti-choice politicians award medals to the individuals who perpetually break the law.

Unfortunately for women in Canada, Dr. Morgentaler, our tireless crusader, is aging. He may have survived the Holocaust, but he will never be able to cheat death. Without him I have serious concerns about where we will go from here. It takes significant pressure from individuals to effect political change and aside from a few kamikaze politicians, most will not touch abortion, pro or con, with a 10-foot pole; it is political suicide in Canada. Although the majority of Canadians support unrestricted access to abortion in all circumstances (up 9% between February and October 2012), they are blissfully unaware of how difficult it is for underprivileged women to access abortion services. Women in PEI must travel out of province for an abortion and in order for it to be covered by their provincial healthcare it must be done in a hospital and she must have a referral. The far north of Canada has very limited abortion services, forcing women to embark on hours-long travel at great personal expense.

Although effecting political change requires large numbers of supporters, effecting change through the courts can be done if one is willing to be the “face” of abortion rights. Dr. Morgentaler has dedicated his life to that task. He has been involved in dozens of lawsuits across the country with great success. He can gather the financial resources that it takes and he is not easily intimidated. Unfortunately, there is a minimum of 2 levels of court that every case has to proceed through provincially before reaching the Supreme Court, where decisions apply to all provinces. Without Dr. Morgentaler I have serious concerns about how far the law will advance. To date, in Canada, judge made law has strengthened abortion rights almost exclusively; however the common law is a slow beast. It is not enough to rely on no legal restrictions; we must fight for the positive right to access abortion without shame or barriers of any kind. The law must actively enforce access and punish those individuals or politicians who interfere. Access to reproductive justice must be a positive right, just as one has the right to freedom of religion or freedom of speech, women must have the right to abortion and reproductive justice.

In the next 25 years, the law must create a positive right to abortion so that every single woman who wants an abortion can receive one without delay and without any financial burden more than the cost of a bus ticket. Women, men, and doctors must bring lawsuits and all pro-women individuals must pressure their politicians to do more. Where we could rely on Dr. Morgentaler to tackle every abortion-related issue in the past, the same cannot be said of many others. It is a heavy burden and Dr. Morgentaler has borne it with the grace and strength of character reserved for so very few on this Earth. Thousands of Canadian women literally owe him their dreams and their lives.

Thank you Henry.

— Not Guilty


Where does activism go from here?

From an activist’s perspective, the Morgentaler decision can tell us two things: first, that ordinary people working together can change the law (for while some of the folks who rallied around Dr. Morgentaler during his struggle were influencial lawyers and doctors, for the most part it was grassroots activists who pushed the movement forward); and secondly, that changes in the law are not enough to combat systemic inequality; a system of which the law is a participating component.

In Canada today, as it was 25 years ago, it is the poor who are disproportionately disadvantaged by barriers to reproductive and sexual health services (including abortion). And despite the lack of legal barriers in comparison with other countries, significant obstacles do still need to be overcome. It doesn’t really matter if abortion is legal when there isn’t a doctor in your community who will perform one, for example. Or if there is a doctor – even a clinic – but the cost is prohibitive. In Fredericton it costs $700+ to obtain an abortion. Some folks in urban Toronto might not bat an eye at that sum, but in the Maritimes there are fewer people who have that kind of cash lying around. And money is simply one possible obstacle among many.

Activists believe a better world is possible. That’s the whole point of activism. In the case of abortion in Canada, it seems like much time is spent – especially in the urban centres where abortion is readily available – celebrating our country’s progressive laws, and congratulating an older generation of activists who made them possible. Of course we know that what our mothers and grandmothers did was courageous, and that it changed the world for the better. I was four years old when the Morgentaler decision came down – I could never begin to understand what it was like before that. But it’s been twenty-five years, and our poor sisters, our rural sisters, our Northern sisters, our First Nations sisters, our queer sisters and our racialized sisters continue to struggle. Why haven’t we listened to them, all this time?

When you are a white, cis woman from a middle class background, it is difficult to see beyond how easy the Morgentaler decision has made things for you. But one thing the Idle No More movement should show us is that when we hold the reins, the only ones served are ourselves. The pro-choice movement in Canada did a great job getting the abortion law struck down, but it is time for us to step back and add our voices in support of a larger movement – a reproductive justice movement – that is led by people tired of trickle-down activism.

A lack of abortion laws means little without free and accessible birth control, comprehensive sex education in all the schools, support and resources for new parents, significant reform to the adoption system, and a national daycare program. And none of that means anything until we learn to respect the sovereignty of the First Nations of this land, the rights of every person to control their own body, and the value of people over money or resources. We have a big mess to untangle. And the our colonial legal system is not going to be that great at untangling it.

But like I said, activists believe a new world is possible. And the youth of this country are making that belief a reality. We just need to listen to them.

— Peggy

2 Responses to “25 Years after R. v. Morgentaler: Where does the law go from here?”


  1. The ‘Elephant in the Room’ | Rantings of an Accidental Feminist - May 17, 2013

    […] aggressive New Brunswick anti-choice headquarters that is disguised as a women’s center. As New Brunswick lacks a law protecting women from anti-choice harassment, this ‘center’ is  conveniently located next to the Morgentaler clinic, […]

  2. The ‘Elephant in the Room’ | Fem2pt0 - May 23, 2013

    […] aggressive New Brunswick anti-choice headquarters that is disguised as a women’s center. As New Brunswick lacks a law protecting women from anti-choice harassment, this ‘center’ is  conveniently located next to the Morgentaler clinic, […]

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