|Legal Aspects of Abortion in Canada||Return to Gender & Health theme page|
2. Nice to Know
- Abortion in Canada was decriminalized on January 28, 1988, following the trial of Dr. Henry Morgentaler, when the Supreme Court of Canada declared the old abortion section of the Criminal Code unconstitutional. The previous law held that an abortion was acceptable only when pregnancy endangered the woman's life. Dr. Morgentaler's challenge was that, under the Charter of Rights and Freedoms, the criminal code restricted a woman's freedom.
- Then, in May 1990, the House of Commons passed Bill C-43, legislation to recriminalize abortion. The new law would have made obtaining an abortion punishable by up to two years in jail unless a doctor determined that continuing a pregnancy threatened a woman's physical, mental or psychological health. Bill C-43 was defeated by the Senate on January 31, 1991. Since then there has been no federal abortion law in Canada, so it remains a right protected under the Charter, but is unregulated.
- Before Bill C-43 was defeated in the Senate, many doctors stopped performing abortions for fear of possible criminal prosecution. Fewer than 20% of hospitals in Canada now perform abortions. Earlier, in 1995, these hospitals had performed 66% of all abortions, the remainder being performed in clinics. Now, most abortions are performed in clinics.
- In Ottawa there is a Morgentaler clinic which does procedures privately. The Ottawa Hospital, Civic Campus, performs abortions covered by OHIP. (See Planned Parenthood Ottawa and click on ‘Resources’, then ‘Pregnancy options’)
- The debate over abortion remains strong in Canada, reflecting varying degrees of conservatism between provinces. 'Pro-life' movements are strongest in Ontario and British Columbia, where governments have been publicly supportive of abortion rights and have worked to improve access. Other provinces do not publicize abortion services; access may be limited but there is less debate.
- The Catholic Health Ethics Guide forbids abortion and is applied in many Catholic hospitals and clinics in Canada. It distinguishes between direct and indirect abortion: "A direct abortion is a procedure whose deliberate purpose is to terminate the life of an embryo or a fetus. An indirect abortion is a procedure necessary to save the life of the mother in which the death of the fetus is an inevitable result, e.g. the treatment of an ectopic pregnancy".
- The Canada Health Act requires provincial governments to provide 'medically necessary services' and from 1995 to 2005, the Federal Liberal Party presented abortion as being medically necessary. However, the provision of services in provinces is also influenced by local political considerations, which may trump federal pressures.(For more, see Palley HA. Canadian abortion policy: national policy and the impact of federalism and political implementation on access to services.
The Journal of Federalism 2006; 36(4): 565-586. This is available on the web).
- As a physician in Canada, your current legal obligation holds that you need not perform an abortion, but may not stand in the way of, or fail to provide adequate referrals and information to your patient regarding abortion.
- The 2004 CMA Code of Ethics does not mention abortion, but does outline your responsibilities, such as paragraph 12: "Inform your patient when your personal values would influence the recommendation or practice of any medical procedure that the patient needs or wants."
- CMA Policy. In 1988 the CMA drafted a policy on protecting doctors’ rights not to perform abortions. The policy also permits doctors to decline to refer patients to abortion providers, with the exception of an emergency situation. The national Abortion Federation argues that this policy impeded women’s access to abortion services, and so has appealed to the CMA.
- The College of Physicians and Surgeons of Ontario produced a code in September, 2008, which states that a physician must disclose his or her opinion on abortion and must refer a patient if he or she cannot give balanced advice. "Personal Beliefs and Medical Practice" was developed in response to an increasing number of enquiries about doctors’ and patients’ personal, religious and moral beliefs. The guidance explores how doctors should deal with a range of dilemmas including abortion, the wearing of face-veils and male circumcision. The guidance recognizes that all doctors have personal beliefs which may affect their day-to-day practice. It clarifies the distinction between conscientious objection to a particular procedure and discrimination against a patient or group of patients. While the GMC paper acknowledges that personal beliefs, values, and cultural and religious practises are just as central to the lives of doctors as they are to patients, it does acknowledge that doctors have to make the care of their patients their first concern." (See pages 9-12 in the CPSO Dialogue magazine from 2008. You can also search for "personal beliefs and medical practice" on the CPSO site)
- Meanwhile, Canadian Physicians for Life also asked the CMA to amend its policy to strengthen a physician’s right to conscientious objection, noting that many physicians (incorrectly) believe that they have a duty to refer a woman who is requesting an abortion. Morgentaler himself argues that doctors should not be forced to do abortions: “doctors should not be obliged to do things which they don’t approve of themselves, and (...) A doctor who doesn’t believe in it is more likely not to do a good job.”
Links: The Abortion Rights Coalition (derived from the previous Canadian Abortion Rights Action League) has a small information web site.
Historical Notes on Abortion
Pro-Choice Action Network in Canada
Canadians for Choice