Abortion – My Personal Experience and The Law in Canada

ABORTION – My experience

Women fear birth control failure. Contemplating the dangerous methods women will resort to obtain an abortion should cause us all to rethink the present trend to limit abortion, especially in the USA. Women and children suffer as a consequence of government intrusion into the most sacred and private decision a woman can make: whether or not to bear a child.
Anti-abortion activists – and many others – are unable to believe that anyone could love children and also be pro-abortion. They don’t think clearly about what seems to be contradictory ideas – reconciling abortion and love. There is a lot of murky thinking. Half of Americans don’t want to bar abortion but also don’t want it widely available either. How does that work? Either abortion is okay and widely accessible or it isn’t. Clear logic minus the moralizing has not been easy to find. Rights are fast eroding in America.
I have no expectation to change the minds of abortion foes. It is the muddled middle that the abortion debate is about. It should be women, not embryos that are the central issue. Abortion is a social good. It’s good for women. It’s good for men. It’s good for children. It’s good for society as a whole. It is a normal fact of life and has been since ancient times.
The conciliatory tagline, even among the staunch pro-choice is that “no one is for abortion.” Have we reached the point where a woman’s child must be fatally compromised or she must be near death or suicidal or have been raped in order for her to have an abortion? Is abortion always tragic, always agonizing? States with the most abortion restrictions perform worse on health indicators for women and children. And abortion opponents claim that hey are protecting women’s health.
Women have always had abortions. The Bible does not mention, judge or have one word on abortion. Egyptian texts from 1500 BC describe an abortifacient plant fiber tampon coated with honey. Over centuries women have ingested poisons, syringed themselves with lye and turpentine or used dangerous probes without anesthesia risking death and injury to end unwanted pregnancies. While abortion is one of the safest procedures available, new restrictions put it out of reach of 87% of American women.
For the women already with enough children, abortion can give her present children a better life by getting a job – that could pay enough to put her children through college – abortion means that they could pursue that dream. For those women it is not a difficult decision, not a selfish act, but one of self-preservation. It is out of love – for her family. Love for their children and for their dreams is not that different from squeamish Americans whose reluctance to think about abortion has allowed a radical movement against to steam roll thinking in America.
Read Pro – Reclaiming Abortion Rights by Katherine Polett, a 2014 examination of this view.

Any pregnancy that does not proceed to the end is theoretically an abortion. Miscarriages, are the spontaneous termination of a pregnancy usually before the 12th week, and are called spontaneous abortions by doctors. It is estimated that up to 90% of fertilized eggs do not proceed to a viable pregnancy and most of these happen very early in the development of a fetus, do not delay a period and go unnoticed by the average woman. The process of gene recombination is quite complex, prone to many errors, and basically nothing viable results. As a general rule there is little that can be done to prevent spontaneous abortions – there is a major genetic “mixup”. Sometimes there are local factors involving abnormalites in a womans’ uterus that prevent proper implantation of the “normal” fertilized egg.
What most lay people think is an abortion is the induced or therapeutic abortion performed usually before the 12th week of pregnancy because the woman does not want to continue the pregnancy. It is a surgical procedure most often performed under local anaesthesia with the woman lightly sedated, but ones done under a short general an aesthetic are also common. Dilation of the cervix is necessary and quite painful. Performed properly by an experienced surgeon in a proper facility, it is an extremly safe procedure. The most common problem is an incomplete removal of all the tissue especially small parts of the placenta and only occasionally does it have to be repeated.

Therapeutic abortions are most easily done between the 8th and 12th weeks. Prior to the 8th week, the cervix is firm and more difficult to dilate. After the 12th week, the risk of bleeding during the procedure increases and slightly different techniques must be used. Between 12 and 20 weeks, a laminaria is inserted preoperatively into the cervix. These are made of a material that absorbs water, enlarges, and dilates and softens the cervix, making it much easier to dilate the cervix during the actual operation. Up to 5 laminaria can be inserted over 2 or 3 visits one and two days preoperatively as an outpatient procedure, left in place and removed as part of the actual TA. They are very gentle, and produce changes in the uterus that reduce bleeding, making abortions much safer. Prior to 14 weeks, the procedure uses a suction method to remove the products of the pregnancy. Those products are examined to ensure that a complete procedure has been done.

Every country has its own laws about how late in a pregnancy a therapeutic abortion can be done. In Canada it is 20 weeks, well before a viable fetus is present, and when a therapeutic procedure is much safer. Sometimes prolife people call later abortions “partial birth abortions” which I find very confusing. They were originally done by injecting saline into the amniotic fluid using a needle inserted abdominally that caused uterine contractions and expulsion of the fetus and placenta hours to days later. Now though, they are done surgically, and are less complicated as the completeness of the procedure is ensured and can be done very safely. Certainly these procedures are unpleasant (at least I found them unpleasant), the previously prepared cervix using laminaria is dilated further, and the fetus is removed using specially designed forceps. I understand that later abortions are done in the United States but I don’t agree with procedures done that late, they are more complicated and to my mind should not be necessary.

I did therapeutic abortions for my entire medical career. Most doctors doing the procedure tend to be certified obstetricians/gynecologists, but many general practitioners, with the proper training also do TAs. I lived in a small geographic area with a population of only about 80,000 people. A few other doctors also did them, but for many reasons, they stopped, and were happy to let me take on the role of the abortionist. By the time I retired in 2006, I was the only physician doing abortions in the entire West and East Kootenay of British Columbia, a huge area that stretched from Midway to the BC/Alberta border. Our hospital had closed in 2002, and I had an OR day in Trail, the closest hospital. I also performed laparscopic tubal ligations, and possibly up to a third of women having TAs also wanted a permanent method of contraception. It solved all their problems with one anaesthetic.

These are not a popular procedure with most doctors. They are all too happy to let someone else do the “dirty work”.
My office was picketed virtually every day for my entire 30 year career – always by the same elderly, Catholic man who carried a piece of plywood shaped like a coffin. After British Columbia passed the “Bubble Law”, pro life protestors were not allowed to come within 50m of the front of our office. Herman was thus across the street, where a lot of people probably did not even notice him. He once sent me a pro life video but that was our only contact over all those years. Occasionally he would write a letter to the newspaper, but it was always laced with fears of armageddon, and he had little credibility. If I had to pick someone to picket me for 30 years, I would chose Herman every time. He was always peaceful, did not bother patients, and I even developed an unusual fondness for him. He kept the crazies away.

I actually enjoyed doing abortions. I viewed myself as a technician doing a procedure that helped a lot of women and in fact, I believe does considerable social good.
I was good as a technician and had very few complications in the thousands of procedures I performed. The procedure was very safe to perform. They could be done safely up to 14 weeks as a dilation and evacuation and I believe I was the only doctor outside the lower mainland doing them between 12 and 14 weeks, saving patients at that stage of pregnancy a long trip to the coast. Patients were seen in my office the day before, and it was done as an outpatient procedure the next day. As many were from a long way away, this was time efficient and cost them as little money and time as possible.
Patients were always referred by their family doctor, their mind was made up, I was not involved with counselling, and I simply did the job that was required. I never met a woman who wanted to be in my office. Most were embarrassed by the situation and wanted it all over with as expeditiously as possible.
I never judged women, berated them, or gave them a bad time. I would like to think that I was even compassionate, but few people would say that about me as a physician. Bedside manner was not always my strong point. I certainly had empathy for these women.

When abortions were first allowed legally, they were theoretically only for women whose health would be affected if the pregnancy were allowed to continue to term (also included rapes but these were rare). Every hospital doing TAs had an abortion committee. I wrote a letter that was reviewed by the committee, and they were inevitably approved. That whole procedure produced unnecessary delays, and was nothing more than making someone think that the procedure was “justified”. Eventually, that whole rigamarole was abandoned, thank god, and the decision was left between me and the patient. I never turned anyone down.
Parental consent was required originally for women under 18, and I remember more than one phone call to Hong Kong, with a nurse on another line, to get the informed consent of a parent. Now, those young women were stressed. That too went out the window, and if I thought that the patient could understand the ramifications of the procedure and give a proper informed consent, there were no age limits. I did many TAs on 13 year olds where the parent never had a clue about the whole thing. And I think that is fine. I always encouraged them to talk to their parents – I believe that most parents would be understanding, but many teenagers definitely did not want to go that route.
Originally too, the consent of husbands was required, which always caused a problem when they had already had a vasectomy. Thankfully, that requirement was dropped too. It became a decision totally under the control of a woman in charge of her life, body, and future. Many had made a mistake, and I do not think they should be made to pay for that mistake with something that was not right for them at the time.

I’m sure it was a decision that haunts most  women to some extent for the rest of their lives. Most women are very maternal and could not but regret that at some point, they had had an abortion. Depression afterward is not uncommon and really the only complication of the procedure. Care of that was up to the family doctor and counselling to deal with. Again the majority were not my patients and I never saw them again.

Surprisingly, most family doctors did not deal with contraception before they were referred and appeared in my office. They never left mine without it being dealt with. Birth control pills were started the day after the surgery, a tubal was done, or arrangements were made for an IUD to be inserted a few weeks later when the uterus was back to its pre-pregnancy size. I discouraged barrier methods for other than disease protection, simply because they are often used improperly, have an inherent failure rate, and thus simply aren’t adequate in the woman who definitely did not want to get pregnant.
If the husband was having a vasectomy, good contraception was used until the efficacy of that procedure was ensured. Women are often accused of using abortion as a method of birth control. Rarely that was true but I did do 6 abortions on one woman. Usually they are “natural health” adherents who insisted on inadequate or no contraception, preferring some rhythm method like the Billings or cervical mucous method. That has a failure rate similar to using nothing unless the couple could actually abstain for 2 weeks per month which is pretty uncommon.

After several shootings of abortion providers, I started to develop some paranoia about risks to myself. It was a well known fact that I was the primary abortion provider in the West Kootenay, the large area where I lived. A pro-life man from Nelson, BC wrote a letter in the Nelson News that he thought abortion providers were fair game. Basically, as abortion was legal, they believed very strongly in the pro-life cause, and I’m sure were frustrated about their inability to do anything legal about it. Harming abortion providers seemed to be their only recourse. At that time I lived in the “country” along Arrow Lakes. The house was surrounded by trees and I ate breakfast at a table in a bay window with more than 180 degree views. I was a sitting duck for anyone who wanted to harm me. I even went to the RCMP and asked if they had any policy about protecting doctors doing the procedure. I inquired about getting a bullet proof vest. They provided no reassurance or help.

I believe that abortion has a strong role in the social fabric of our society. I believed that it was only right and fair that women have easy access to therapeutic abortions, at no cost, and not be judged in any way. Nobody else in our geographic area was providing a full abortion service, and I felt obliged to take on that role. I had no moral qualms and it didn’t bother me a bit to be known as an abortionist. I believe that I provided a competent service to the women and people of the West Kootenay (and East Kootenay for whom I was the only provider for the last six years of my career after Dr. Ron Johnstone from Kimberly retired and nobody took on that role). It was a woman’s right to control her reproductive capacity and nobody had any right to interfere with that right.

Looking at abortion from a purely pragmatic view, I think they do great societal good. Having an unwanted baby poses financial and emotional costs. The poor are overly represented. Making a simple mistake, or in some cases being irresponsible, should not force a woman to have a child they feel they cannot handle at that time of their lives. At least, a safe, free abortion should be easily obtained if that is the choice they make. In terms of financial cost to society, it is much cheaper to perform an abortion than support a family on welfare. It pays for itself in less than a month. I didn’t see any prolife folks providing any financial or social support to women having babies they couldn’t handle.

In “Freakonomics” by Steven Leavitt, an economist from Chicago, he makes a good case for society supporting safe, no cost abortions. In the early 1990s, the overall crime rate in the US had a large, unexpected drop. Trying to ascribe it to the obvious things – better social support of the poor, better policing, increased incarceration, better drug rehabilitation programs, etc – failed to show a small effect at best. He came to the conclusion that abortion was the reason. Roe v. Wade, the landmark US law that legalized abortion throughout the US was introduced in 1973. Twenty years later, there were over a million fewer unwanted babies per year in the United States. Three years earlier, legal abortion had been introduced in five states, Hawaii, Washington, Alaska, Colorado and California. The crime rate reduction occurred three years earlier on average in those states than the rest of the country. It only makes sense.

A 1988 survey polled 27 countries about the reasons women had therapeutic abortions:
25.9% Want to postpone childbearing.
21.3% Cannot afford a baby
14.1% Has relationship problem or partner does not want pregnancy
12.2% Too young; parent(s) or other(s) object to pregnancy
10.8% Having a child will disrupt education or job
7.9% Want no (more) children
3.3% Risk to fetal health
2.8% Risk of maternal health
2.1% Other including about 1% for rape

History of abortion law in Canada

While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Early in Canadian history, all abortions were illegal. The Criminal Law Amendment Act, 1968-69 introduced by Pierre Trudeau’s Liberal government, legalized abortion as long as a committee of doctors signed off that it was necessary for the physical or mental well-being of the mother. In 1988, the Supreme Court of Canada ruled in R. v. Morgentaler that the existing laws were unconstitutional and struck down the 1969 law and since then Canada has had no criminal laws governing the subject and abortion is a decision made by a woman with her doctor. In 2005, 97,254 abortions were reported in Canada; it is estimated that this number “represents approximately 90% of all abortions performed in Canada involving Canadian residents”. This number has been decreasing since at least 1998. This represents a ratio of about 30 abortions to every 100 live births.

In the sixties, abortion could be legally performed only to save the life of the mother, so there were practically no legal abortions. The pregnant daughters of the rich were sent to a reliable physicians who did abortions for cash. It is estimated that these physicians did twenty to thirty abortions per week. Woman who were not rich were left to perform an abortion on themselves or go to what he called a “nurse” abortionist. Their method was commonly pumping Lysol™ into the woman’s womb. The mortality rate was high and the infection rate over 50%.

Legalization in Canada. In 1967, Justice Minister Pierre Trudeau introduced a bill (amendment to Section 251 of the Canadian Criminal Code). The bill, known as the Criminal Law Amendment Act, 1968-69, was passed on May 14, 1969, and provided for abortions when the health of the woman was in danger as determined by a three-doctor hospital committee. However, abortion still remained in the Criminal Code of Canada, unlike the U.S. law where, after Roe v. Wade in early 1973, abortion was no longer illegal. This same bill also legalized homosexuality and contraception, and would be the subject of one of Trudeau’s most famous quotations: “The state has no business in the bedrooms of the nation.”Section 287 of the Criminal Code is the abortion provision drafted by Pierre Trudeau and passed in 1969. Prior to 1969, taking steps to cause an abortion was an offence liable to life imprisonment. However, the Trudeau bill made an exception for abortions performed in a hospital with the approval of that hospital’s three-doctor therapeutic abortion committee. The committee would have to certify that the pregnancy would be likely to endanger the life or health of the pregnant woman. The term health was not defined, and therapeutic abortion committees were free to develop their own theories as to when a likely danger to “health” (which might include psychological health) would justify a therapeutic abortion.
Badgley Report. In 1975 a Committee on the Operation of the Abortion Law was appointed. It found, quite simply, that “the procedures set out for the operation of Abortion Law are not working equitably across Canada.” In large part, this was because the intent of the law was neither clear nor agreed upon. Access to abortion as set out in the Criminal Code was not available for many women due to variations in distribution of hospitals and doctors and in whether Therapeutic Abortion Committees were set up and in doctors’ interpretations of “health” for women, ages of consent, and parental notification requirements.
By 1982 there were 66,319 legal abortions in Canada. The 1969 law was interpreted differently by different doctors and hospitals, leading to uneven access. The standard was the physical or mental well-being of the mother, to be decided by a hospital’s Therapeutic Abortion Committee. However, there was no requirement for a hospital even to have a TAC or for it to meet, and only about one-third of hospitals had one. Some committees took a very liberal stance and allowed almost all requests, while others blocked almost all requests. Access to legal abortions was easy in major metropolitan areas, but much harder outside of large cities. In the province of Prince Edward Island the lone Therapeutic Abortion Committee shut down and there were no legal abortions in the province after 1982. The Therapeutic Abortion Committees often took days or weeks to make their decisions, pushing a pregnancy further along than it would have been otherwise. The women were not seen by the committee and had no right to appeal a decision. Abortion rights advocates also protested that the choice should be made by the woman, not a panel of doctors.
Because of the lack of facilities in smaller provinces or rural areas, women were often forced to travel to major cities at their own expense. In all of Newfoundland there was only a single gynecologist who performed abortions, and many women had to pay some $1000 to fly to Toronto or Montreal to get an abortion. Many other women chose to travel to the United States, where after Roe vs. Wade abortions became available at many private clinics. In 1982 4,311 Canadian women travelled to the United States for an abortion.

Dr. Henry Morgentaler. In defiance of the law Dr. Henry Morgentaler began performing abortions at his clinic without approval of a Therapeutic Abortion Committee and in contravention of the law. In 1973, Morgentaler stated publicly that he had performed 5,000 abortions without the permission of the three-doctor committees, even going so far as to videotape himself performing operations. The Quebec government took Morgentaler to court twice, and both times juries refused to convict him despite his outright admission that he had performed many abortions. The government appealed one acquittal, and the appeal court overturned the jury’s verdict. Morgentaler was sentenced to 18 months in jail. Public outcry over the appeal court’s decision caused the federal government to pass a law preventing appeal courts from overturning a jury’s not-guilty verdict. Morgentaler was again acquitted at a third trial, causing the Quebec government to declare the law unenforceable.
Morgentaler’s struggle prompted a nation-wide movement to reform Canada’s abortion laws. In 1970, as part of the Abortion Caravan, 35 women chained themselves to the parliamentary gallery in the House of Commons, closing Parliament for the first time in Canadian history.
Upon his release from prison in Quebec, Morgentaler decided to challenge the law in other provinces. Over the next 15 years, he opened and operated private abortion clinics across the country in direct violation of the law. Following a fourth jury acquittal in 1984, the Ontario government appealed the decision. The Ontario Court of Appeal set aside the acquittal and ordered a re-trial.

Supreme Court decision.
Morgentaler, in turn, appealed to the Supreme Court of Canada. In a landmark decision, the Court declared in 1988 the entirety of the country’s abortion law to be unconstitutional. The court noted that “forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations” and that the law “asserts that the woman’s capacity to reproduce is to be subject, not to her own control, but to that of the state” were essentially a breach of the woman’s right to security of the person, which is guaranteed under Canada’s Charter of Rights and Freedoms. The Court also found that the procedural requirements to obtain an abortion, as set forth in the law, were especially troublesome.
In its decision (R. v. Morgentaler, [1988]), the Court stated: “The right to liberty… guarantees a degree of personal autonomy over important decisions intimately affecting his or her private life. … The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society, the conscience of the individual must be paramount to that of the state.”
A large part of why the Supreme Court of Canada ruled against the abortion law in 1988 had to do with how amendments to the criminal code that allowed abortions worked. To have an abortion, a woman had to first have a doctor who was willing to give her information on the topic and refer her to another doctor, or to take the case him or herself. The abortion then had to be approved by a hospital’s Therapeutic Abortion Committee (commonly known as a TAC), which was composed of three doctors. Pro-life groups attempted to have their members become the members of the TAC so that the hospital would no longer perform abortions: “In some locations across Canada, pro-lifers were able to get elected to local hospital boards and shut down that hospital’s TAC. Thus the hospital would no longer be able to perform abortions. This was an especially effective tactic in the Maritime provinces.”
The court noted that it was mostly men that were deciding if a woman should have an abortion. Also, because some pro-life doctors would not take any case to a TAC, or would only take a very severe case, and because some of these doctors would not even refer a woman to a doctor who would present the case to the TAC, there were barriers to women who wanted to have their applications considered by a TAC. It could take a long time for a woman to find a doctor that would take her case to the TAC. Finally, the TAC had to decide on each request for an abortion. These factors resulted in a time lag that meant that abortions were being performed much later than they could have been.
The Court also recognized that the rules resulted in varying levels of abortion availability, depending on the city, province or territory. The law also resulted in middle class and affluent women having better chances to obtain an abortion. The existence of private clinics meant that women who had enough money could bypass the TAC system completely.

Attempts at a new law.
Following the Supreme Court decision, the Mulroney government made two attempts to enact a new abortion law. In 1989, the government introduced a much stricter bill in the House of Commons. If enacted, it would ban all abortions unless a doctor ruled the woman’s life or health would be threatened. Anyone found in violation of the law could be imprisoned for up to two years. The House of Commons passed the new bill by nine votes, with the cabinet being whipped in favour and most pro-life members supporting it. A few months later, the bill failed in the Senate on a tie vote. Under the rules of the Senate, a tie meant the measure was defeated. The defeat was somewhat unexpected since it was the first time since 1941 that the Senate, whose members are appointed, had outright defeated legislation passed by the House. Nonetheless, in the wake of the controversy surrounding passage of the GST the Progressive Conservative government did not wish to provoke a contest of wills with the Senate and announced it would not re-introduce the legislation.

The fact that no subsequent government has re-visited this decision has been what has led to the unique situation of Canada having no abortion law whatsoever. Abortion was now treated like any other medical procedure, governed by provincial and medical regulations.

Later cases. The 1989 Supreme Court of Canada case of Chantal Daigle (Tremblay v. Daigle [1989]) is one of the most widely publicized cases concerning abortion in Canada after the law prohibiting abortions was overturned by the Supreme Court of Canada. Daigle’s ex-boyfriend obtained a restraining order against her having an abortion. While the restraining order was issued in Quebec, it was legally restricting Canada-wide. The Supreme Court of Canada ruled that only the woman could make the choice; the father had no legal say in a woman’s choice to terminate a pregnancy or carry it to completion. In Winnipeg courts determined that a pregnant woman addicted to solvents could not be civilly committed for treatment.

Access throughout Canada. Abortions in Canada are provided on request and funded by Medicare, to Canadian citizens and permanent residents (as with most medical procedures) in hospitals across the country. Abortion funding for hospitals comes from the various provincial governments (their overall health expenses are however paid for in part by the federal government). One-third of hospitals perform abortions, and these perform two-thirds of abortions in the country. The remaining abortions are performed by public and private-for-profit clinics.
Medical abortion is available in Canada on a limited basis using methotrexate and misoprostol; mifepristone (more widely known as RU-486) is not legally approved, and importation of that drug in Canada is currently illegal. Clinical trials were done in 2000 in various Canadian cities comparing methotrexate to mifepristone, after approbation by the federal government. While both drugs had overall similar results, mifepristone was found to act faster. As of May 2005, it is unclear whether or when RU-486 will be approved for use in Canada.
Access by province. While the Canada Health Act has been interpreted by the federal government as requiring provinces to fund abortion clinics fully, Nova Scotia provides only limited funding, and New Brunswick and Prince Edward Island provide no funding for clinics.
A doctor’s referral is not necessary, although an independent ultrasound usually needs to be done. The number of Canadian medical schools that give instruction in abortion procedures is decreasing, which could potentially create a shortfall in medical personnel skilled in this area. Third-trimester abortions are not generally available.

Attacks on doctors who perform abortions. Three Canadian doctors who perform abortions have been shot. Many of the shootings occurred on or near November 11, which is observed as Remembrance Day in Canada, the day for remembering the contributions of service men and women in both the world wars and on peacekeeping operations. In 1983, Henry Morgentaler was attacked by a man wielding garden shears; the attack was blocked by feminist activist Judy Rebick, who was standing nearby. In 1992, Morgentaler’s Toronto clinic was firebombed and sustained severe damage. The event occurred at night, so no one was injured, although a nearby bookstore was damaged. Appointments were switched to another clinic in Toronto and no abortions were prevented. On November 8, 1994, Vancouver doctor Garson Romalis was shot in the leg. On November 10, 1995, Dr. Hugh Short of Ancaster, Ontario shot in the elbow. On November 11, 1997 Dr. Jack Fainman of Winnipeg was shot in the shoulder. On July 11, 2000, Dr. Romalis was stabbed by an unidentified assailant in the lobby of his office.

Dr Henry Morgentaler should be judged as a hero of our country for his courage and perseverence in his decades long fight for the best law in the world – none. Women in Canada have complete control of their reproductive rights.