Some call abortion the “American Holocaust” resulting in a large number of deaths to unborn children. Yet others view abortion as a right to mothers regarding their right to life, liberty, and security- the right to choose. Abortion is an ongoing issue that Canada has struggled with from the 19th century as a colony of Britain, to present day as a nation. This essay will discuss and analyze historical and present views and laws on abortion in attempting to determine when life begins, and the rights of the mother.
As a colony of Britain, English statutes applied to Canadian law. Laws from British parliament also paved the way for Canadian abortion laws. In the 19th century, England began a progression towards complete prohibition of abortion[1]; this began in 1803 with the Ellenborough Act. The Ellenborough Act was introduced by the first Baron Ellenborough. Within his first year of being the Lord Chief Justice of England, Ellenborough pushed a piece of legislation that prohibited abortion. According to the law, after a woman had felt fetal movement, “persons found guilty of such crimes shall be and are hereby declared to be felons, and shall suffer death in cases of felony without benefit of clergy”[2]; however, persons conducting an abortion on a woman who may not have been pregnant at the time or could not be proved to be pregnant at the time received less severe punishment such as imprisonment, publicly or privately whipped or deportation for a maximum period of fourteen years. It was not until 25 years later when the abortion statute of 1828 made changes to the Ellenborough Act regarding its punishment: “Death was still the punishment for aiding and abetting the procural of abortion when the woman was quick with child”[3] yet the prison sentence “before quickening” or fetal movement was specified to a maximum of 3 years and whipping. The abortion statute remained in act for 9 years and was revised in 1837 when parliament passed “An Act to amend the Laws relating to Offences against the Person”[4]. This act suspended the Ellenborough Act of 1803 and the abortion statute of 1828. The new act provided equal penalties for abortion at any stage of pregnancy as well as wiping away of the death penalty and whipping, although the prison sentence remained the same at 3 years. The final abortion law in England that would have been applicable to Canada was enacted in 1861.[5] According to this law, the guilty person could be kept in servitude for at least 3 years and hard labour and solitary confinement were added as punishments. Deportation was no longer an option. Therefore, while British law clearly maintained abortion as a crime, there is evidence that there was some softening on the penalties for procuring an abortion. It is also likely that this stance at the time influenced the future Canadian laws.
As of 1867, Canada had gained independence and was no longer under British rule. As a result of this, Canada was able to make its own decisions and pass pieces of legislation. In 1892, Parliament passed Canada’s first Criminal Code which prohibited “abortion as well as the sale, distribution and advertising of contraceptives”[6] even though a considerable number of women continued to seek abortions. These restrictions stayed in place in Canada for over one hundred years and forced many women to “risk their lives to end unwanted pregnancies in back alleys, or to submit to mandatory motherhood.” [7] This law was the start to one of Canada’s greatest and most well known controversial debates for over two centuries.
The 20th century included many significant events regarding abortion, the first being the decriminalization of contraception by Prime Minister Pierre Trudeau in 1969. The decriminalization allowed abortions to be performed under certain circumstances meaning that the abortion could be done in a hospital if a committee of doctors felt the pregnancy could endanger the mother’s health or life. If the mother is in risk of danger or if the baby suffers from abnormalities which would in end result in the baby not surviving after birth, the mother could choose to undergo a therapeutic abortion.[8] In this way, Trudeau’s changes allowed for protection of the mother’s life under a defined set of circumstances and at the discretion of the doctors.
There are two types of therapeutic abortions: one being surgical and the other chemical. Surgical abortions range in procedures depending on the different times of the pregnancy. Surgical abortions include suction aspiration or vacuum abortions, dilatation and evacuation, or dilatation and curettage- all of which are effective, but still involve risks. Chemical abortions on the other hand can be taken through a series of medication such as pills but are not always successful which can require a follow up with a surgical abortion.[9]