 This module focuses on the abortion law in Canada from the 19th century into the present day, through eras of crime, health, and rights. It presents abortion law as something of interest more than in the regulation of physicians and medical practice. It presents abortion law as a product of Canadian physicians' legal and political engagement. My name is Joanna Erdman. I am the McBain Chair in Health Law and Policy at the Schulich School of Law at Dalhousie University. And abortion law is one of my subjects of study. Today, I'll move through the eras of Canada's abortion law, marked by the social injustice that spurred each successive reform. In the early 19th century, Canadian colonies followed Britain in criminalizing abortion throughout pregnancy. This prohibition was then reflected in Canada's first criminal code of 1892 and remained the law until 1969. By the historical records, cases of women being punished under the law were exceedingly rare. In explanation, legal historian Constance Backhouse offers public sympathy for women's plight, as well as immunity being traded for their testimony. Prosecution, rather, targeted those who performed abortion, often midwives and other irregular practitioners. In fact, many historians linked the 19th century criminalization of abortion to the professionalization of medicine. State intervention was justified partly on an ideal of the profession, as said against the claimed moral corruption and commercial exploitation in abortion practice. Women nonetheless suffered under the criminal law, for they went to considerable lengths to control reproduction despite the law, seeking abortion from whoever offered and often at great risk. Poor women were confined to the vagaries of the back alley. Women with means turned to the sympathetic physician or private maternity hospital. In other words, criminalization did not so much outlaw abortion as it regulated it, allocating risk on the basis of social status. Long before any formal permission in law, physicians in hospitals were therefore performing therapeutic terminations of pregnancy. Legal scholar Shelly Gavigan explains that these physicians were not indifferent to the risk of criminal liability, but rather they perceived protection from professional autonomy and clinical work. By the 1960s, many hospitals had set up committees which physicians could consult to provide additional protection from prosecution. It's therefore unsurprising that when the Canadian Medical Association began to publicly question the criminal prohibition on abortion, and to advocate for reform along with the Canadian Bar Association, both professional organizations favored a hospital-based committee system. In many ways, it was already the status quo. In 1969, Parliament voted to amend the criminal code, such that procurement of a miscarriage was an indictable offence, unless performed by a doctor in an approved hospital on written certification of a committee with no less than three doctors, the continuation of pregnancy would endanger the woman's life or health. The reform had a dual purpose, both to provide a measure of legal protection for physicians, but also to provide a measure of legal control, refusing to give individual doctors discretion to authorize termination. Less therapeutic abortion would effectively become abortion on request. Unfortunately, the 1969 reform did not cure the social injustice of the criminal law. Class and other social bias was overwhelming in assessments of therapeutic need. The law was applied unevenly and unfairly. Married white middle-class women with connections to a family physician of good standing fared better in approvals, provided they were willing to be labeled mentally unstable in their medical records. For women of color, First Nations women and women with disabilities, the cost of a rare approval was greater. Certification was often granted only on consent to sterilization. Qualifying hospitals were always free under the law to set up committees or not. Most declined and the boards of others sent stringent approval standards. For women who made it through the system, a shortage of operating room time, a lack of equipment and training, created a scarcity driving it further access inequality. Women waited on average eight weeks for services. Women, and especially the socially marginalized, were forced outside the hospital and the law. But by the early 1970s, the back street on which they landed had changed. By this time, second wave liberation feminists took on abortion as a political cause. Not only did they mobilize for political and legal change, their direct action tactics led to their involvement in abortion service provision itself. Through underground information and referral networks, groups across the country provided women with pregnancy tests that had sympathetic and skilled clandestine providers, often physician, or newly legalized services in the United States. They also arranged for transportation and sometimes financial support. The introduction of vacuum aspiration also significantly made abortion safer and quicker to perform, especially outside hospital settings. These underground networks not only provided access to safe services, but bore witness to the injustice of the hospital committee system. Many groups first tried to work legal channels, seeking to persuade doctors to refer women to hospital committees and to shepherd women through the process, but they were rarely successful. More common were doctors sending women the other way to the underground networks for services. Activists used this outflow to politically protest the dysfunction and hypocrisy of the legal system to demand improvement in services. By 1977, a government study on the operation of the abortion law, commonly known as the Batchley Report, told the government what many Canadian women knew first hand, as activist Juby Reddit wrote, that the procedures in the criminal code for obtaining a therapeutic abortion were a loser for many Canadian women. Many of the clandestine providers during this time were physicians, perhaps the most famous among them Dr. Henry Morgantaler, a Montreal family physician. Morgantaler, along with colleagues across the country, provided abortion care as a matter of conscience and in defiance of the law. These doctor's services were illegal because they worked without committee certification in facilities without government approval, yet they provided services often with better complication rates than hospital doctors. Throughout the 1970s and into the early 80s, Dr. Morgantaler and colleagues opened and worked illegal clinics in Montreal, Toronto, and Winnipeg. Their clinics were raided and charges were laid, but juries often acquitted. Their civil disobedience was designed to engage and challenge the law. By inviting and fighting criminal charges, these physicians put the law on trial, arguing its dysfunction, inequity, and injustice. The Toronto Arrest and Trial of Dr. Morgantaler eventually led to the Supreme Court of Canada's 1988 landmark judgment, R. V. Morgantaler. In this judgment, the Supreme Court held that the 1969 law, the hospital committee system, was unconstitutional. It violated Section 7 of the Charter of Rights and Freedoms, Women's Right to Security of the Person. Based on the encyclopedic evidence of the Badgley Report, a majority of the court declared the law dysfunctional in practice. The lack of hospitals with committees and the long delays of the committee process significantly increased women's risk of harm. Physical harm from increased complications, but also psychological harm in the delay itself. In other words, the injustice of the criminal law was not that breaking the law threatened liberty and imprisonment, but that compliance with the law threatened health and well-being. This harm was simply inconsistent with or disproportionate to any legitimate objective of the criminal abortion law. In the lone opinion of Justice Wilson, however, the injustice of the criminal law reached further. She would have found the law in breach of the right to liberty, taking from women the most fundamental of personal decisions. A woman's right to develop her potential to the full, to plan her own life, to make her own choices, to be her own person. After R. V. Morgantaller, Canada was without any unique criminal offence of abortion. But it's a myth to say that Canada thus has no law on abortion. Rather, on decriminalization, abortion could have been absorbed into the public health care system and governed by provincial law regulating hospitals, medical profession, and the practice of medicine. It could have been, but it was not. Within months of the Morgantaller judgment, almost every province had some regulation to limit access to abortion services. Some replicated hospital committee approval and provincial law, others prohibited all abortions outside hospital facilities. And then there were the funding restrictions. When certified as therapeutic care, hospital abortions were fully funded under public health insurance schemes. But with decriminalization, funding restrictions were drawn, only in life-threatening circumstances, only on physician approval, only for hospital but not clinic services. All of these restrictions were challenged in court, and some with success. The British Columbia Civil Liberties Association denounced the funding restrictions in that province as 180 degrees opposed to the spirit of the decision of the Canadian Supreme Court in R. V. Morgantaller. Courts, however, decided these cases on narrower statutory rather than constitutional grounds. The restrictions were declared simply irrational health policy. It was not until the mid-2000s that charter rights cases in Manitoba and New Brunswick gained traction on funding restrictions. Though to this day, an over 20-year legal battle with the New Brunswick government over cleaning funding remains unresolved. Public funding remains restricted to abortion services performed by a gynecologist's obstetrician in an approved hospital and certified as medically required. One of the primary laws and challenge of the funding restrictions was the Canada Health Act. This is a federal statute that sets the basic criteria of our national health care system. Public administration, universality, comprehensiveness, accessibility and portability. And conditions full federal contribution for cost sharing in health based on provincial compliance with these criteria. In the 1990s, the federal government used its spending power under the Canada Health Act to politically compel provincial reform in abortion funding. Abortion was declared a medically necessary service by all provincial colleges of physicians and surgeons and then federal health minister Diane Marlowe ordered all provinces to fully fund abortion services as medically necessary health care or to face financial penalty. Some provinces complied, others took the financial hit. Today, almost all provinces have repealed abortion funding restrictions with the notable exceptions of New Brunswick and Prince Edward Island. And yet, so many Canadians still face barriers to care. And this is because a formal right of access means very little when abortion services are simply unavailable. Since 1977, there has been a steady decline in public sector hospitals providing abortions, a critical service provider for rural and remote regions of the country. An increasing proportion of abortions are now performed in single purpose clinics, which are limited to large urban centres. The availability of abortion services in eastern Canada is especially concerning. As of July 2014, the only abortion clinic in New Brunswick shut its doors. And now, much as Canadians did in the criminal era, many are travelling across the US border for services. In Prince Edward Island, no services are offered on island, requiring inter-provincial travel in every case. These spatial disparities in abortion service availability levy a heavy burden in travel and expenses for those seeking services. In a 2013 study, researchers Christabel Sethna and Marion Dool captured these burdens. 18% of women who participated nationally in their study reported travelling more than 100 km to reach services. Many bypassed available hospital services because of real and perceived deficiencies in the quality of service. These access barriers and the social inequalities they engender give yet further reason to look to Health Canada and the pending approval of Mipha Pristin for use with mysoprostol in the termination of pregnancy. Health Canada oversees the approval of new drugs under the authority of the Food and Drugs Act, assessing drugs on the basis of safety, efficacy and quality. In 2012, a pharmaceutical company brought forward a new drug submission for Mipha Pristin to Health Canada. Although Mipha Pristin is registered in 57 countries for this indication, Health Canada has yet to approve the drug. When used with mysoprostol, Mipha Pristin is a safe and effective method of early term abortion. Moreover, a great promise of medical abortion is that it may be provided safely, earlier in pregnancy, by a more diverse set of providers including family physicians, nurse practitioners and midwives in a broader range of facilities. The approval of Mipha Pristin is thus an important step towards improving access in rural and remote communities and in reducing our gaps in service delivery. In summary then, let me offer this final thought. Many look to Canada as a lesson in the decriminalization of abortion. And our current state of service access and availability indeed offers an important lesson, which is this. On the decriminalization of abortion in Canada, associations of criminality carried into other realms, namely health policy. Allowing government to disclaim responsibility for abortion access and to reassign the social inequality and access to the market. The lesson. To ensure access to abortion services based on need, we sometimes need state intervention. We need government. We need good law. Laws that protect service providers through privacy protection. Laws that protect service access from harassment and obstruction. And laws that protect service availability through insurance coverage. This is the history of abortion law in Canada. To seek freedom from illegitimate state control over reproduction, but also to ask the state to govern in the interests of affected communities. That is abortion law in the service of health and rights. This presentation is not intended to serve as legal advice. The content is intended for education purposes only. This presentation was developed with the generous support of Dalhousie University's Health Law Institute. Thank you.