R. v. Morgentaler: a preliminary post

As promised, I am continuing our earlier discussion of the abortion issue. At the risk of trying everyone's patience, I've decided to provide some supporting detail from R. v. Morgentaler before addressing the core issue.

In my original post, I stated, "In the 1970s and 80s, Canada had a law which permitted abortion in hospitals, but only if certain criteria were met." At least one reader felt cheated because I didn't give any content to the phrase, "certain criteria". Aaron wrote, "I do note here that you didn't identify the criteria, so I have no idea whether I would consider them reasonable or overly restrictive."

I've decided to explain the criteria, partly to satisfy the appeal for full disclosure, but also because it will provide a concrete framework for our subsequent discussion.

Courts generally do not rule on abstract legal questions; with few exceptions, they address questions only as they arise within a specific fact situation. Abortion involves real women, plus real zygotefetusbabies, medical procedures and, potentially, laws and regulations.

I think the wisdom of this approach will become clear as we explore R. v. Morgentaler in more detail. For starters, we will consider two questions:  (1) What procedural hoops did a woman have to jump through to obtain a legal abortion in Canada in the 1970s and 80s?; and (2) Why did the Supreme Court of Canada object to those procedural steps and strike down the law?

We will also gather some informative data. The Supreme Court decision includes a brief description of the several techniques used to carry out abortions. And it illustrates the practical difficulties that stand in the way of any attempt to regulate women's access to abortion. (A point that Aaron directed us to in one of his comments.)

My next post on the subject will address the core question:  in Snaars' words, "At what point in its development does a fetus have moral rights, and what are those rights?" I'll get there, I promise. I'm just methodical (if not downright plodding) in my thought processes.

---

Prior to the 1988 Morgentaler decision, Canada had a law which permitted abortion in hospitals, but only if certain criteria were met.

The law, section 251 of the Criminal Code of Canada, was structured as follows. Subsection (1) made it an offence for anyone to perform an abortion. Subsection (2) made it an offence for a woman to procure an abortion. Subsection (4) exempted women and doctors from the law against abortion if they jumped through certain, specified procedural hoops. In the words of Chief Justice Dickson:

The crucial provision for the purposes of the present appeal is subs. (4) which states that the offences created in subss. (1) and (2) "do not apply" in certain circumstances.…

The procedure surrounding the defence is rather complex. A pregnant woman who desires to have an abortion must apply to the "therapeutic abortion committee" of an "accredited or approved hospital". Such a committee is empowered to issue a certificate in writing stating that in the opinion of a majority of the committee, the continuation of the pregnancy would be likely to endanger the pregnant woman's life or health. Once a copy of the certificate is given to a qualified medical practitioner who is not a member of the therapeutic abortion committee, he or she is permitted to perform an abortion on the pregnant woman and both the doctor and the woman are freed from any criminal liability.

Let's unpack this rather condensed account of the law. A woman learns that she is pregnant and, for whatever reason, the news is unwelcome to her. She wants an abortion. She goes to her local hospital, where she is told, "We'll convene our therapeutic abortion committee to consider your application". (The wheels of bureaucracy are grinding into motion. This shouldn't take long!)

The sharp reader will immediately note that the law is formulated so as to minimize access to abortion. The statute first declares abortion illegal. The default position is, no abortion; the onus is on the woman to demonstrate that she qualifies for an exemption. The statute could have been written the other way around:  the legislature could have declared abortion legal in most cases, with certain exceptions.

The law required four doctors to be involved in each abortion. According to subsection (6) of the statute, a minimum of three doctors had to serve on the therapeutic abortion committee; then the abortion was to be carried out by a fourth doctor, not on the committee. (Presumably so that the doctors who were deciding whether to approve the abortion did not stand to gain financially or in any other respect from the procedure.)

The word therapeutic hints at the criteria the committee would consider. The pregnancy did not have be a matter of life and death for the committee to approve an abortion. Therapeutic signifies that the effect of the pregnancy on the woman's health is also a relevant consideration. But this gives rise to further questions:  will a woman's emotional health be taken into consideration, or only her physical health? And how grave must the threat to her health be, before an abortion will be approved?

For now, I am only calling these issues to your attention, but we will return to them shortly. First, more of Chief Justice Dickson's comments.

At the most basic, physical and emotional level, every pregnant woman is told by the section [of the Criminal Code] that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations.

Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress.

In the court's judgement, this constituted a "profound" interference with a woman's body. The statute thus violated the Canadian Charter of Rights and Freedoms, which protects the security of the person.

The court then noted an additional problem which we have already hinted at. Even for women who meet the criteria for an abortion, the bureaucratic process resulted in an unacceptable delay. In the province of Quebec, for example, the waiting time for a therapeutic abortion in hospital varied between one and six weeks.

In the context of abortion, any unnecessary delay can have profound consequences on the woman's physical and emotional well-being.

Different medical techniques are employed to perform abortions at different stages of pregnancy. The testimony of expert doctors at trial indicated that in the first twelve weeks of pregnancy, the relatively safe and simple suction dilation and curettage method of abortion is typically used in North America.

From the thirteenth to the sixteenth week, the more dangerous dilation and evacuation procedure is performed, although much less often in Canada than in the United States.

From the sixteenth week of pregnancy, the instillation method is commonly employed in Canada. This method requires the intra-amniotic introduction of prostaglandin, urea, or a saline solution, which causes a woman to go into labour, giving birth to a foetus which is usually dead, but not invariably so.

The uncontroverted evidence showed that each method of abortion progressively increases risks to the woman. Even within the periods appropriate to each method of abortion, the evidence indicated that the earlier the abortion was performed, the fewer the complications and the lower the risk of mortality.

…There is a world of difference, from the psychological point of view of the patient, between a reputedly safe technique of abortion performed under local anaesthetic requiring only a few hours in a hospital and an abortion procedure with a substantially higher complication rate performed under general anaesthetic requiring a longer period of hospitalization, and involving the trauma of induced labour and the delivery of a dead foetus.

We've addressed one of the issues I raised earlier:  the deleterious impact of bureaucratic delay. But the court had another reason for objecting to the statute:  it led to inequitable access to abortion for Canadian women. In some places, there was no local access to abortion except in life and death circumstances.

Of the 1,348 civilian hospitals in operation in 1976, at least 331 hospitals had less than four physicians on their medical staff. In other words, the seemingly neutral requirement of s. 251(4) that at least four physicians be available to authorize and to perform an abortion meant in practice that abortions would be absolutely unavailable in almost one quarter of all hospitals in Canada.…

A further flaw with the administrative system established in s. 251(4) is the failure to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted.…

Various expert doctors testified at trial that therapeutic abortion committees apply widely differing definitions of health. For some committees, psychological health is a justification for therapeutic abortion; for others it is not. Some committees routinely refuse abortions to married women unless they are in physical danger, while for other committees it is possible for a married woman to show that she would suffer psychological harm if she continued with a pregnancy, thereby justifying an abortion. Some committees refuse to approve applications for second abortions unless the patient consents to sterilization [while] others require psychiatric assessment.

[The result, inevitably, was that women outside an urban setting were much less likely to obtain an abortion locally.]

[For example,] doctors from the Chedoke-McMaster Hospital in Hamilton testified that they received telephone calls from women throughout Ontario who had applied for therapeutic abortions at local hospitals and been refused. At one point, 80 per cent of abortion patients at Chedoke-McMaster were from outside Hamilton, and the hospital was forced to restrict access for women from outside its catchment area.

In sum:

• The law which existed in Canada in 1988 required a therapeutic abortion committee to approve applications for abortion. Four doctors had to be involved in each procedure.


• The process resulted in delays which could be injurious to a woman's physical and emotional well-being. Even if the delay was a matter of only a few weeks, it might become necessary to utilize a more invasive and risky procedure to carry out the abortion.


• The law also resulted in inequitable access to abortion for Canadian women. Many hospitals did not have enough doctors on staff to meet the requirements of the law. Each committee put its own interpretation on the law, with the result that many women had no local access to abortion.


• The above issues, delay and inequitable access, illustrate the kind of practical difficulties which are likely to arise with any alternative regulatory regimen we might propose. The instant we attempt to protect the fetus, we risk introducing unintended, harmful consequences for women.

---

A few concluding comments are in order, and here's why. A lawyer once said, "If you allow me to choose all the illustrations, I will win every case." (I apologize, but I don't know the lawyer's name; it's a tidbit I picked up in a first-year law course.)

The saying is certainly apt with respect to the abortion issue. Advocates of the pro-choice position describe every scenario from the woman's point of view, and their position seems unassailable. Advocates of the pro-life position similary skew the data by describing every scenario from the baby's point of view.

I have only summarized the first 20 pages of a 100-page court decision. In all of the excerpts I have provided, Chief Justice Dickson views the issue from the perspective of the pregnant woman.

This is particularly striking when the Chief Justice speaks of the occasional fetus which survives the instillation procedure and is born alive. His concern is solely for the woman — the emotional trauma this will cause her. I am filled with horror for the baby:  a healthy baby, whose safe and pleasant environment is suddenly flooded with a saline solution; expelled from the uterus prematurely, horribly burned, alive and suffering terribly.

If we consider only the data summarized above, Dr. Morgentaler appears in a heroic light. But this post explores the perspective of only one party to the abortion.

Next, we will consider other aspects of the Supreme Court decision, in which the fetus is presented for our consideration. We will ask the vexed question, when does a fertilized ovum become a human being? And we will consider a variety of ways to approach the issue:  ways which seek that elusive balance between the conflicting interests of the pregnant woman and the zygotefetusbaby inside her.