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Monday, January 28, 2013

Thoughts on the 25th Anniversary of the Morgentaler Decision

Twenty five years ago, the Supreme Court of Canada struck down Canada’s law on abortion, finding it violated a woman’s right to life, liberty and security of the person. Canada's experience with the decriminalization of abortion proves that women can be trusted to make decisions regarding our lives, health and families without State interference or the threat of criminal sanction. 

Dr. Henry Morgentaler already knew this in 1968 when he began performing abortions in defiance of the law. He also knew that sending women to have their abortions approved by a therapeutic abortion committee, as the law of the day demanded, was an unnecessary barrier that wasted time and risked our lives and health. Finally, Dr. Morgentaler knew that doctors could be trusted to practice medicine safely and effectively and in the best interests of their patients.

Evidence supports this perspective. The Guttmacher Institute, a rigorous research organization in the area of sexual and reproductive health, finds abortion persists regardless of its legal status. The rates are highest and maternal health outcomes are poorest where there are restrictive laws around abortion and where contraception is difficult to access. Laws against abortion do not reduce the number of abortions, nor do they make women safer. In Africa where most abortions are illegal, the abortion rate is 29 per 1000 women of childbearing age. Complications from unsafe abortion result in 13% of maternal deaths worldwide. In 2010, the last year for which numbers are available, the abortion rate in Canada was about 14 per 1000 women of childbearing age. Our outcomes are better than those of countries with legal restrictions.

In Canada, although abortion is no longer a criminal matter, it is not unregulated. Doctors abide by Canadian Medical Association guidelines. Ninety percent of abortions are performed on request in the first twelve weeks and ninety-eight percent are performed in the first sixteen weeks. The procedure is safe and Canada has one of the world’s lowest maternal mortality rates from abortion. The CMA regulates abortion responsibly just as it does every other medical procedure. Only 1.9 percent of abortions happen over twenty-one weeks, and these are performed only in cases of severe fetal anomaly or where the life of the woman is at risk.
As the Guttmacher Institute notes, for health outcomes to be optimized, legalization must be accompanied by a sustained commitment and dedicated resources to areas such as comprehensive sexuality education and doctor training. In Canada, there is still more to do. A University of Ottawa report finds long wait times in Ontario, in part because only one in six hospitals in Canada offers abortions. Access is severely limited in rural and northern areas and abortions are unavailable in Prince Edward Island. In New Brunswick, women must still seek the approval of two doctors to have their abortion covered under the provincial health plan. This flagrant violation of the Morgentaler decision persists under successive intransigent provincial governments and federal governments willing to turn a blind eye.

Since 1987, there have been about 45 attempts to recriminalize or restrict abortion through the introduction of Private Members Bills or Motions. Not one has passed, nor would one likely survive a Charter challenge. Passage of such a bill or motion would be a blow to women’s rights akin to retracting the right to vote or the right to own property.

In a report to the United Nations, The Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health describes laws restricting abortion as an abuse of state power. Such laws “infringe human dignity by restricting the freedoms to which individuals are entitled under the right to health, particularly in respect of decision-making and bodily integrity,” mirroring the finding of our own Supreme Court. The report urges all countries to end such restrictions.

Those reluctant to end restrictive laws can look to Canada as a role model. For this, we can express our gratitude to Dr. Morgentaler and all who helped him in this work.  



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