Of What Difference? - National Abortion Federation

Of What Difference?

ISBN 978-0-9812493-0-8

20th Anniversary of Regina v. MorgentalerOf What Difference?Reflections on the Judgmentand Abortion in Canada TodaySYMPOSIUMToronto, OntarioJanuary 25, 2008Co-hosted bythe National Abortion Federationand the Faculty of Law, University of Toronto

20th Anniversary of R v. Morgentaler SymposiumOf What Difference?Reflections on the Judgment and Abortionin Canada TodayOn January 25, 2008, in Toronto, Ontario,the Faculty of Law, University of Toronto(U of T) and the National AbortionFederation (NAF) co-hosted aninterdisciplinary symposium to celebratethe 20-year anniversary of Regina v.Morgentaler, the Supreme Court case inwhich the criminal law on abortion inCanada was held unconstitutional.The symposium brought together morethan 100 participants, from legal scholars,abortion providers and journaliststo representatives from governmentand women’s advocacy organizations.Examining abortion from a variety ofperspectives, participants addressed thesignificance of the event and the differencethe R. v. Morgentaler judgment has sincemade to women, providers and the politicsof abortion in Canada.This reader, prepared in collaboration withthe Women’s Health Research Institute, isa compilation of the day’s presentations atthis commemorative legal conference.This document is the property of the National Abortion Federation. Permission to reproducethis document is granted for use without fee and without formal request provided itis reproduced accurately and not used in a misleading context. The material must beacknowledged as NAF copyright and the title of the document specified. Copies may not bemade or distributed for profit or commercial advantage. An electronic version of this documentcan be downloaded from the NAF Canada website at: (http://www.prochoice.org/canada).

AcknowledgementsNAF and its co-host, the Faculty of Law,University of Toronto, wish to thank allof the symposium attendees for theirparticipation in the 20th Anniversaryof R. v. Morgentaler Symposium. Inparticular, we would like to thank all of thesymposium presenters who willing sharedtheir stories and perspectives for thishistorical event. (See Appendix 2 for a shortbiography of each presenter.)To all of the volunteers who generouslydonated their time before and duringthe symposium, grateful thanks areextended. Symposium organizers wish toacknowledge law students Carolina S. RuizAustria, Chris Kaposy and Keri Bennett fortheir poster presentations.We wish to thank the Canada ResearchChair in Health Law and Policy for theirgenerous support of this symposium.NAF and the Faculty of Law, Universityof Toronto, in collaboration with theWomen’s Health Research Institute, arepleased to present these proceedings ofthe 20th Anniversary of R. v. MorgentalerSymposium.

Table of ContentsForward....................................................................................................................................................... 1Introduction................................................................................................................................................3Keynote Address: Dr. Henry Morgentaler.................................................................................................5The Context: From Morgentaler to Abortion in Canada Today.................................................................9R v. Morgentaler: Charter Rights and Abortion................................................................................11Post-Morgentaler Challenges: From Crime to Health..................................................................... 1 2Abortion in Canada Today: Who, What, Where?.............................................................................16Rights in Practice: Barriers to Available and Accessible Care................................................................. 21Abortion in Canada: From Sea to Shining Sea................................................................................23Law: Facilitating and Impeding Access............................................................................................ 25Better Never Than Late, But Why? The Contradictory Relationship Between Law and Abortion.........29Information Failure: An Ontario Case Study................................................................................... 35Our Providers: the Challenges of Their Work.........................................................................................39Challenges of Providing Abortion Care: A Provider’s Perspective..................................................41Why Do I Do This? Being a Provider.............................................................................................. 4 6The New Generation: Abortion in Medical Schools....................................................................... 49The Role of Media in the Abortion Debate......................................................................................54The Politics of Abortion: The Work of the Politician....................................................................... 57On Being a Legal Academic in a Politically Charged Context.........................................................63Canada From an International and Comparative Perspective................................................................67Canada from an International and Comparative Perspective........................................................ 69Appendices............................................................................................................................................... 71Appendix 1: Symposium Programme.............................................................................................. 73Appendix 2: Presenter Biographies.................................................................................................. 75

ForwardThe celebration of the 20th anniversaryof the 1988 decision of the SupremeCourt of Canada in the case of Regina v.Morgentaler allows us to reflect on thevarious factors that led to this judgment,and its subsequent implementation.First is the extraordinary courage of Dr.Henry Morgentaler in challenging whatis called the modern day inquisition, theprevailing efforts to suppress women’srights and freedoms. The Court applied theCanadian Charter of Rights and Freedomsto ensure that women could exercise theirfundamental right to security of the personto decide whether or not to continuewith their pregnancy. The decision of theSupreme Court explained the governmentcould not criminalize abortion in ways thatinfringed women’s fundamental rights, andin so doing heralded in a new era of humanrights and social justice. The Supreme Courtused public health statistics gathered in the1977 Report of the Royal Commission onthe Operation of the Abortion Law, chairedby Professor Robin Badgley, to show howinequitably the 1969 amendment to theCanadian Criminal Code operated.Second, is the perseverance of providersand women’s health advocates acrossCanada to ensure implementation of theMorgentaler decision. As the papers thatfollow explain, there have been manycontests around the implementation of theMorgentaler decision, including ensuringcoverage of abortion services in provincialhealth plans, and controlling clinicharassment, violence against providers,and against women seeking services. It isclear from these fights that the crime andpunishment mentality ebbs and flows, andit requires eternal vigilance if women’srightful place is to be secure in Canadiansociety.Third, is the ingenuity of all thoseconcerned with improving women’s healthin Canada to shift the way in which healthcare systems generally treat women, frompaternalistic and demeaning approachesto ones that respect their dignity andautonomy, and enhance their agency.Ensuring recognition and respect ofwomen’s moral agency, and their rights tomake their own conscientious decisionsis not always easy, particularly given thestigma women face in their pathways toobtain abortion services.Challenges ahead include those stepsthat are necessary to reduce barriers andpromote access, particularly to underservedpopulations. Measures to reduce barriersinclude removing therapeutic abortionfrom the list of excluded services underthe Interprovincial Reciprocal BillingAgreement. Steps to promote accessinclude the approval and wide availabilityof the safest and most acceptable meansof medical abortion (that is non-surgical),which would bring Canada into alignmentwith those 40 countries that have nowapproved and provide medical abortion.Some countries, such as Sweden, havedeveloped a series of health serviceindicators that measure the quality of thedelivery of the service, and health statusindicators that measure the outcomes of thehealth service. One of the most importanthealth status indicators is the percentageof abortions performed during the first 10weeks of pregnancy. These indicators needto be disaggragated by age, rural statusand, for example, ethnicity, to ensure thatsubgroups of women, particularly thosethat are marginalized in the health caresystem, have equitable and timely access toservices.In moving forward to ensure that eachProvince and Territory eliminates barriers,guarantees that every woman in Canadahas access to dignified and timely care,1

and fosters respect for women’s moralagency, it is inspiring to remember thecourage, perseverance and ingenuity ofthose who made the implementation of theMorgentaler decision possible.Rebecca J. CookFaculty of LawUniversity of Toronto2

IntroductionVicki Saporta, President and CEO, National Abortion Federation (NAF)Monday, January 28th, 2008 marks the20th anniversary of R v. Morgentaler, theSupreme Court’s ruling that decriminalizedabortion in Canada. This landmark decisionhas undoubtedly protected the health andsaved the lives of countless women, andwas named as one of the most importantand influential Charter cases of the last25 years. Today, we are privileged to havewith us the lawsuit’s namesake and atrue champion of women’s reproductivefreedom, Dr. Henry Morgentaler.As most of you know, in the years leadingup to the Morgentaler decision, abortionwas permitted only in very limitedcircumstances. Hospitals with TherapeuticAbortion Committees could approve andprovide abortion care only in cases of life orhealth endangerment. In order to obtain alegal abortion, women were forced to facean intimidating process of going beforea hospital committee to petition for care.This policy established unequal access toabortion throughout the provinces andterritories, and made it particularly difficultfor women outside major urban centersto obtain abortion care. It is estimatedduring this time that 35,000 to 120,000illegal abortions took place each year.We may never know the actual numberof women who sacrificed their lives andhealth through back alley or self-inducedabortions. Many of you witnessed thedevastation of illegal abortion first-handand joined the fight to legalize abortion.Throughout history, major movementshave been started by dedicated people whowere willing to stand up and give a voiceto people in need. The battle for abortionrights was fought in Parliament, in thecourtroom, and in the streets. Just as theyhad done for voting rights and humanrights, women mobilized—this time aroundobtaining the right to have a safe and legalabortion.In 1970, 18 years before abortion wasremoved from the Criminal Code, theVancouver Women’s Caucus organized thefirst national feminist protest to liberalize theabortion law. The Abortion Caravan, as theywere called, traveled over 3,000 miles fromVancouver to Ottawa, where 500 womendemonstrated for two days demanding legalaccess to abortion. And 30 women chainedthemselves to the parliamentary gallery inthe House of Commons, closing Parliamentfor the first time in Canadian history. Thisrelatively small group of women stood upand demanded that all women have equalaccess to abortion care. These 30 womengave a voice to the tens of thousands ofCanadian women who were unable tolegally obtain the abortion care they needed.As women organized in our quest forreproductive freedom, one man stood outas a leader for our cause and a championfor our rights. Dr. Morgentaler defiedthe law and opened the first Canadianfreestanding abortion clinic in Montreal in1969. For the next 20 years, he continuedto fight the system and even served prisontime for providing women with safeabortion care. At tremendous risk to hislife and personal safety, Dr. Morgentalerremained committed to liberalizingCanada’s abortion law and continuedto speak out for women’s reproductivefreedom.These efforts were successful, and todayCanada is one of only a few countrieswithout a federal law restricting abortion.Although abortion has been decriminalizedfor 20 years, challenges to accessingabortion care in Canada still exist. As3

we gather here today to reflect on thisdecision’s impact on the Canadian healthsystem, the political landscape, and thewomen of Canada, we are reminded that insome provinces and territories women arestill denied equal access to abortion care.Even though abortion is considered a safe,legal, and insured service, access is variableacross the country.Currently, there are no abortion servicesavailable in Prince Edward Island, andaccess remains a challenge for rural womenthroughout Canada. In New Brunswick, awoman can only obtain a publicly fundedabortion if provided by an obstetrician/gynecologist (OB/GYN) in a hospital withwritten approval from two doctors. Thispolicy contradicts the decision we are hereto commemorate and unfairly restrictsaccess for women in the province.Women not living in their home provinceor territory also face challenges becauseabortion is not part of the inter-provincialbilling agreement. In fact, abortion is theonly time-sensitive and medically necessaryprocedure excluded from the list of serviceson the inter-provincial billing agreement.This policy forces students attending schoolin another province, or women who haverecently moved and are in the process oftransitioning their health care benefits,to pay the full cost of their abortion careout-of-pocket, or incur additional expensestraveling back to their home province inorder to obtain a publicly funded abortion.Anti-choice physicians can also presentbarriers to access. Although manyabortion providers accept self-referrals,some facilities require women to obtain aphysician referral before they can accessabortion care. Many women often go totheir family physician for this referralor simply to get information abouttheir options. The Canadian MedicalAssociation’s policy of allowing physiciansto refuse to refer patients for abortion careis a clear violation of CMA’s own Code ofEthics, which requires physicians to:• Consider the well-being of the patient;• Practice medicine in a manner thattreats the patient with dignity; and• Provide patients with the informationthey need to make informed decisionsabout their medical care.The CMA’s policy treats women unfairlyand impedes women’s access to care.Now more than ever, it is important thatwe don’t lose sight of the women whocontinue to face these obstacles in order toobtain the abortion care they need. Nowmore than ever, we must remain dedicatedto advocating for these women. We mustcontinue to work together to ensure thatwomen have the same access to abortioncare whether they live in an urban center ora small town, or whether they live in BritishColumbia or Prince Edward Island.Some of you here today are students whohave never lived in a world without legalabortion. You, most of all, must remainvigilant in preserving this freedom so thatwe never have to return to the days of backalley abortions where our sisters, mothers,and friends had to risk their health—andsometimes even their lives—to end anunwanted pregnancy.The National Abortion Federation andthe National Abortion Federation Canadaare pleased to co-sponsor this symposiumwith The University of Toronto’s Facultyof Law, and with generous support fromthe Canada Research Chair in Health Lawand Policy. We’ve put together an insightfulday-long program and have assembledleading experts to examine themes drawnfrom the Morgentaler decision. Thankyou for joining us as we commemoratethis historic decision and its impact onCanadian women. It is certainly a pleasureto welcome all of you to this symposium.4

Keynote Address: Dr. Henry MorgentalerReflections on My Struggle to Make Abortion Legal and Available in CanadaThis is a truly momentous occasion. I amhappy to be among so many people whohave taken the time to mark a very specialday. It has been twenty years since a historicSupreme Court decision profoundlychanged the lives of women in Canada. TheMorgentaler decision by the Supreme Courtof Canada of 1988 is an important milestonein the emancipation of Canadian women.This is a proud moment not only for me butfor all those people who have played suchan important role in this movement.In 1988 the Supreme Court of Canada ruledthat women have the right to make choicesconcerning their own reproductive health.I am proud to have played such a pivotalrole in that decision. I also believe that theworld is a kinder, gentler place for womenin Canada because they do have the right tomake choices.The first case to be litigated after thedecision was in Nova Scotia, where theGovernment was intent on destroying theclinic which I had established there. It hadintroduced legislation to make abortionoutside of hospitals a criminal act, liableto a $50,000 fine for each procedure.Fortunately the judge who presided overmy trial in Halifax declared this legislationinvalid and I was able to operate theclinic in Halifax for eight years, providingservices to women from all the Maritimeprovinces.Over the years, I have developed a nearperfect surgical procedure. I have had theprivilege of training over 100 doctors to dothis procedure safely and compassionately.At one time there were eight MorgentalerClinics across Canada. I built those clinicsto ensure fair and equal access to theabortion procedure in a safe and secureenvironment with caring and respectfulservice providers. I am very proud of myremaining clinics and of the high quality ofservices they continue to provide.The past 20 years have certainly had theirshare of challenges, but I believe I havemet those challenges head on. I havedebated publicly on radio and televisionand unfortunately exposed myself and myfamily to threats and harassment.Although we mark 20 years since theSupreme Court decision, we must becognizant of the fact that there have beenadditional court battles across Canada sincethat time. I continue to fight the provinceof New Brunswick; a province whoseGovernment continues to stubbornly insistthat women have no access to abortion;where women continue to have to walkthrough protestors; where doctors are stillbeing harassed.It is clear that children, who grow upwanted, loved and cared for, grow up to beemotionally healthy adults. I believe thatthe documented decrease in crime todayis directly related to the fact that womencan now make choices concerning theirown reproductive health. I believe thatour society is a better society today than itwas thirty years ago. I am thankful to havebeen able to play such an important rolein ensuring that women are treated justly,with dignity and respect.Let me review briefly the situation inCanada regarding access to abortionservices across the country. Six provincesnow have reasonably good access; Ontario,Alberta, British Columbia, Newfoundland,Quebec and Manitoba.We have won a class action suit in Quebecrecently and women in Quebec now havegood access to abortion services underMedicare.5

In Manitoba, where I had to fight theGovernment for 20 years, I eventuallysold my clinic in Winnipeg to a group ofpro-choice women. The clinic I establishedeventually received funding so that womencan now access abortion services underMedicare.The situation in the Maritimes is stilldifficult. My Newfoundland clinic gotfunded many years ago and women thereno longer have to travel all the way toMontreal for abortions. The main NovaScotia hospital providing abortion serviceshired a Halifax doctor whom I had trainedand improved access so that my clinic there,which had existed for 10 years, was nolonger necessary. PEI has not had a facilityoffering abortion services for many years,so women there have to travel to Halifax orNew Brunswick for abortions.The only province which deprives womenof access to abortion is New Brunswick.I established a clinic 14 years ago inFredericton, which the Government stillrefuses to acknowledge or fund, so accessto abortion services is still inadequate.I have initiated legal action against theGovernment of New Brunswick, but theprocess is slow. In the meantime, womenin New Brunswick are deprived of servicesand are obliged to pay for them out of theirown pocket. Unfortunately the Liberalswho replaced the Conservatives in powerin that province are as anti-choice as theConservatives; nothing much has changedsince they took power.In the major cities and population centersin Ontario, Quebec, British Columbia,Alberta, Manitoba and Nova Scotia, womennow have access to abortion servicesunder Medicare. In the smaller populationcentres in the Maritimes and in vast areas ofManitoba and Saskatchewan, women haveto travel to obtain them, but overall thesituation has improved dramatically sincethe 1988 decision.I have personally been responsible foropening eight clinics across the country, ofwhich seven still provide services. Whatmy clinics have achieved is a standard ofcare based on competence and compassion;where the safety and dignity of patients isthe major consideration. I am proud to saythat in all the years of operation, my clinicshave achieved an outstanding degree ofsafety. In all those years not a single womandied as a result of an operation and the rateof complications has remained very low.Over the years, in spite of threats andharassment by anti-choice fanatics I havebeen able to establish clinics where womenare treated with competence and dignity. Ihave trained many doctors and nurses whoestablished and worked in facilities with asimilar philosophy of care and compassion.I am proud of what I have been able toachieve.I wish to thank the doctors, nurses,counselors and other staff in my clinics,who have helped me to attain a highdegree of safety and competence. I wish tocongratulate all staff members in abortionclinics across Canada who continue toprovide services in spite of harassment andthreats.Here in Canada, I can still remember theyears before the Supreme Court decision,when abortion was illegal and unsafe andwas responsible for many preventabledeaths of young women. Major hospitals likethe Royal Victoria or Saint Luc in Montrealhad entire floors filled with women whowere dying or were seriously injured fromunsafe, illegal or self-induced abortions.Fortunately, this is no longer the case.In Canada abortion is available onrequest, the direct result of the SupremeCourt ruling in 1988, which gave womenthe right to control their bodies, andmost importantly, the ability to choosemotherhood at a time that was appropriate6

for them. The Supreme Court decisionallowed me and other physicians toestablish clinics across the country whichcould provide the services that womenneeded, with competence and compassion.The Morgentaler decision of the SupremeCourt of Canada affirmed the dignity andequality of women in this country; breathednew life into the Charter of Rights andadded a new dimension to democracy andliberty in Canada. Canada is amongst thebest countries in the world for mortalityof women and babies in the process ofchildbirth. “Every mother a willing mother;every child a wanted child” is a slogan which,if implemented, creates stronger families,better communities and a kinder, gentlersociety.Over the past 37 years I have dedicatedmyself to the struggle to achieve rightsto reproductive freedom and to providefacilities for women. This struggle gavemeaning to my life, and corresponded tothe ideals that I inherited from my parents:dedication to human rights and an abilityand willingness to make this world a betterplace to live.Let me end on a personal note. I am asurvivor of the Nazi Holocaust, that orgyof cruelty, brutality and inhumanity. Ihave personally experienced oppression,injustice and suffering inflicted bythose beholden to a racist, dogmaticand irrational ideology. To have had theopportunity to diminish suffering andinjustice has been very important to me.Reproductive freedom and good accessto safe abortion means that women willbe able to give life to wanted babies at atime when they can provide love, care andnurturing.In my fight over the past decades forreproductive freedom and in helping tomake it possible in Canada, I believe thatI have made a contribution to a safer andmore caring society where people havea greater opportunity to realize their fullpotential.7

Post-Morgentaler Challenges: From Crime to HealthJoanna N. Erdman,International Reproductive and Sexual Health Law Programme,Faculty of Law, University of TorontoWhat happened after R v. Morgentaler 1 andthe Supreme Court of Canada?Canada followed the general trend inabortion law reform—from crime andpunishment to health and welfare. Atthe federal level, Parliament attemptedto re-enact a criminal law on abortion.This attempt, Bill C-43, An Act RespectingAbortion, was unsuccessful. 2Abortion—throughout pregnancy—wasno longer uniquely subject to criminalregulation. In this respect, Canada itself wasunique in the international context. This isno longer the case. The Canadian standardis now reflected in international humanrights law. All states are advised thatpunitive measures imposed on women whoundergo abortion should be withdrawn. 3With R v. Morgentaler—and the failureof Bill C-43—abortion was transferredfrom the criminal to the health context.Following decriminalization, abortion couldbe legally integrated into health systems,and governed by the laws, regulations, andmedical standards that apply to all healthservices. Abortion could be regulated asa health service like any other, but it wasnot. Following decriminalization, a seriesof laws and regulations were enacted1 R v. Morgentaler, [1988] 1 S.C.R. 30.2 An Act Respecting Abortion, C-43, 2d Session 34thParliament, 38 Elizabeth II (1989) (as defeated bySenate, Jan. 31, 1991).3 See e.g. U.N. Committee on the Elimination of allforms of Discrimination against Women, GeneralRecommendation No. 24. Women and Health. UNDoc. A/54/38/Rev.1, para 31(c), (1999): “Whenpossible, legislation criminalizing abortion shouldbe amended, in order to withdraw punitivemeasures imposed on women who undergoabortion.”to uniquely govern abortion as a healthservice. 4This presentation examines when and whythe different treatment of abortion as ahealth service is legally justified. When doesthe different treatment of abortion servelegitimate and important goals? When doesthe different treatment of abortion unfairlydeny women access to medically necessarycare? When does it stigmatize women andabortion providers?The move from criminal to healthregulation placed us in a dilemma ofdifference. Meeting our goals in abortioncare requires both integration andseparation, both similar and differenttreatment in law and policy.My objective is to examine this dilemma ofdifference through key legal developmentsfrom the last twenty years. Thesedevelopments relate to three goals ofabortion regulation: ensuring available,accessible and acceptable abortion care.The Dilemma of Difference andAvailable Abortion CareAvailable abortion in hospitals and clinicshas long been subject to unique legalregulation.Under the criminal law, lawful abortionservices were restricted to hospital facilities.This restriction was one ground on whichthe Supreme Court in R v. Morgentaler(1988) held the law unconstitutional. 5 No4 J.N. Erdman. “In the Back Alleys of Health Care:Abortion, Equality, and Community in Canada”(2007) 56 Emory Law Journal 1093, 1093.5 Justice Beetz confirmed that “no medical12

medical reason required that abortions berestricted to hospitals. Clinics can offercomprehensive, supportive, and qualitycare.Nevertheless, in 1989, Nova Scotia enacteda law that prohibited abortions outside ofhospitals and denied public funding forabortions performed in violation of theprohibition. Its stated purpose: to preventtwo-tiered health care and to ensure highquality care. In 1993, a unanimous SupremeCourt of Canada struck down the law. 6 Thepurpose of the prohibition, the Court held,was not to regulate clinics generally. It was“to prohibit abortions outside hospitalsas socially undesirable conduct.” 7 Theintention was not to treat abortion likeother health services, but to treat abortiondifferently. The law regulated “the placewhere an abortion may be obtained, notfrom the viewpoint of health care policy,but from the viewpoint of public wrongs orcrimes.” 8A New Brunswick law was struck downfor the same reasons. 9 The purpose of thelaw was to prohibit abortion clinics, inparticular, Dr. Morgentaler’s clinic.In British Columbia, hospital abortionservices are currently subject to differentlegal treatment. After a number of hospitalboards voted to discontinue abortionservices, unique regulations were enactedto ensure available care in every region ofthe province. The regulations designate33 public hospitals that “must providethe facilities and services necessary tojustification” required all therapeutic abortionsto be performed in hospitals. According to experttestimony, “many first trimester abortions maybe safely performed in specialized clinics outsideof hospitals…possible complications can behandled, and in some cases better handled, by thefacilities of a specialized clinic.” R v. Morgentaler,[1988] 1 S.C.R. 30, 115.6 R. v. Morgentaler, [1993] 3 S.C.R. 463.7 Morgentaler, [1993] 3 S.C.R. at 513.8 Ibid.9 Morgentaler v. New Brunswick (Attorney General),[1995] 121 D.L.R. (4th) 431 (N.B.C.A.).allow beneficiaries to receive abortions atthat hospital.” 10 In this case, the differenttreatment of abortion functions to ensurerather than restrict its availability.Government action to ensure availableabortion services is increasingly beingadvocated. The Health Equity and LawClinic at the Faculty of Law, Universityof Toronto, recently published an articleadvocating for government intervention toensure the introduction of safe and effectivereproductive health medicines—includingmedication abortion—into Canada. 11The Dilemma of Difference andAccessible Abortion CareIn many countries, women’s access toabortion services is conditioned on parentor partner consent. In Canada, no suchunique consent requirements apply.Courts continue to uphold the rightsof mature young women to consent toabortion without parental involvement. Ayoung woman may consent to an abortionprovided she is sufficiently mature andintelligent to understand the proposed care.No different legal requirements apply. Asstated by the Alberta Court of Appeal: “Theissue is not whether abortions are morallyright or wrong; the issue is simply one ofthe capacity to consent.” 12In 1989, in Tremblay v. Daigle, the SupremeCourt denied that any substantive rights,fetal or parental, outweigh women’s rightsto access abortion services. 13 A partner orpotential father cannot override a woman’sdecision to terminate her pregnancy. Her10 Hospital Insurance Act Regulations, B.C. Reg.25/61, s. 5.20, enacted pursuant to the HospitalInsurance Act, R.S.B.C. 1996, c. 204.11 J.N. Erdman, A. Grenon & L. Harrison-Wilson.“Medication Abortion in Canada: A Right-to-Health Perspective” (2008) 98 American Journal ofPublic Health 1764.12 C. v. Wren (1986), 35 D.L.R. (4th) 419, 424 (Alta.C.A.).13 Tremblay v. Daigle, [1989] 2 S.C.R. 530.13

ight to free and informed decision-makinggoverns.Economic accessibility or affordabilityremains a continuing concern. Immediatelyafter judicial decriminalization, allprovinces, with the exception of Ontarioand Quebec, restricted or withdrew publicfunding for abortion services. BritishColumbia, Manitoba, New Brunswickand Prince Edward Island limited publicfunding to “medically necessary” hospitalabortions. All regulations were legallychallenged on jurisdictional grounds. Somesurvived scrutiny, others were defeated. 14The British Columbia Supreme Courtdeclared the funding regulation“inconsistent with the [law], and withcommon sense.” 15 In Manitoba, the Courtof Appeal called the policy perverse. Byrequiring that abortions be performed inhospitals rather than clinics, “an insurancescheme designed to control costs, willfullyincreased them.” 16Following successful challenges, manyprovinces enacted amended restrictions andso followed a second and more recent seriesof cases.In 2006, a Quebec court ordered theprovince to reimburse almost 45,000women for their out-of-pocket clinicabortion expenses. 17 In 2004, a ManitobaCourt held that denied public fundingfor clinic abortions violated the CanadianCharter of Rights and Freedoms. 18 Whilethe judgment was subsequently setaside, it remains significant in Canadian14 Erdman, supra note 4 at 1094.15 B.C. Civil Liberties Ass’n v. British Columbia(Attorney General), [1988] 49 D.L.R. (4th) 493, 498(B.C. S.C.).16 Lexogest Inc. v. Manitoba (Attorney General)(Lexogest I), [1993] 101 D.L.R. (4th) 523, 552–53(Man. C.A.).17 Association pour l’accès à l’avortement c. Québec(Procureur général), [2006] QCCS 4694 (Qué. S.C.).18 Jane Doe 1 v. Manitoba, [2004] 248 D.L.R. (4th) 547(Man. Q.B.); rev’d. [2005] 260 D.L.R. (4th) 149(Man. C.A.); leave to appeal to S.C.C. refused,[2005] S.C.C.A. No. 513.constitution law. For the first time, a Courtheld that denied access to safe and timelyabortion care violates women’s equalityrights. 19 Litigation in New Brunswickremains ongoing.Canadian courts are increasingly findingthat the different treatment of abortionservices under public health insuranceschemes is unjustified. The opposite is truerespecting the regulation of information:the right to seek and receive information,but also the right to privacy protection, andpublic interests in safety and health.Privacy commissioners across the countryhave inquired into requests for abortionrelatedinformation and refused disclosuresbased on health and safety grounds. 20 Inthe past, requests for abortion-relatedinformation from public bodies weretreated the same as all other informationrequests. There was no presumption thatthe information qualified for protection.A demonstrated risk of harm to health orsafety was required to refuse disclosure.Section 22.1 of the Freedom of Information andProtection of Privacy Act in British Columbiareverses this presumption. 21 A publicbody must refuse to disclose abortionrelatedinformation unless the requestmeets narrow exceptions, for example,generalized statistical information.This different treatment of abortionrelatedinformation acknowledges thedifficult context in which many abortionproviders work. Given that provider safetyis necessary to ensure continued abortioncare, the province protects again disclosurethat would deter service provision. Limitedaccess to abortion information, however,19 For equality rights analysis, see Erdman, supranote 4.20 See e.g. Interior Health Authority (Re), 2007 CanLII7545 (BC I.P.C.) re s. 22.1.21 Freedom of Information and Protection of PrivacyAct, R.S.B.C. 1996, c. 165, s. 22.1(2). “The headof a public body must refuse to disclose to anapplicant information that relates to the provisionof abortion services.”14

can be problematic. Women are withoutaccess to resources. Information deficitsalso impede efforts for governmentaccountability.The Dilemma of Difference andAcceptable Abortion CareThe different treatment of abortionmay also serve the goal of acceptability,ensuring that abortion care is provided in amanner respectful of women’s dignity. Theconstitutionality of laws creating “accesszones” to protect clinic facilities, andprovider homes and offices, is one example.The Preamble to the Access to AbortionServices Act of British Columbia recognizesthat all persons “who use the… healthcare system, and who provide servicesfor it, should be treated with courtesyand with respect for their dignity andprivacy.” 22 When this law was challengedas unconstitutional, the Crown concededthat it infringed the freedom of expressionunder the Canadian Charter of Rights22 Access to Abortion Services Act, R.S.B.C. 1996, c.1.and Freedoms. The British ColumbiaSupreme Court found the infringementwas justified. 23 The objective of the law,to facilitate equal access to health care,was recognized as a fundamental valuein Canadian society. The Court reasonedthat “a woman’s right to access health carewithout unnecessary loss of privacy anddignity is no more than the right of everyCanadian to access health care.” 24ConclusionThe legal regulation of abortion as a healthservice presents us with a dilemma ofdifference. Ensuring available, accessibleand acceptable abortion care requires thatwe sometimes treat abortion differentlythan other health services and sometimesthe same. This dilemma of differencesmakes clear that legal regulation is a meansand not an end. Our task is to use thelaw to achieve our desired end: to ensureavailable, accessible and acceptable care forevery Canadian woman.23 R v. Lewis (1996), 139 D.L.R. (4th) 480 (B.C. S.C.).24 Ibid. at 509.15

Abortion in Canada Today: Who, What, Where?Dawn Fowler, Canadian Director, National Abortion Federation (NAF)The following is a synopsis of the PowerPoint presentation given by Dawn Fowler toconference participants.2004 Canadian AbortionStatisticsStatistics Canada (SC) reports annualabortion statistics. While there are dataquality issues regarding the reported data,the following is a review of published datafrom 2004. It must be noted the availabledata does not lend itself to analysis aroundissues of access to care, time to care ordemographics such as ethnicity, income,health status, health reasons or education.History of Data CollectionThe Therapeutic Abortion Survey (TAS)started in 1969 as part of the new lawregulating abortion in Canada. Thelaw stipulated abortions could onlybe performed in hospitals—no clinicswere operating at this time. To monitorthe impact of the new legislation, thefederal department of Justice and Health& Welfare required Statistics Canada tocollect, compile and publish the numberof abortions being performed in Canadianhospitals. The first report was publishedNovember 20, 1970.Representatives from Health & Welfare, SC,Society of Obstetricians & Gynecologistsin Canada (SOGC) and the CanadianMedical Association (CMA) established anindividual case report form to collect a coredata set which included the following:• Province of residence;• Marital status;• Age/date of birth;• Previous deliveries;• Previous abortions;• Date of last menses/gestation period;• Abortion procedure;• Sterilization;• Complications & days ofhospitalizationData collection deteriorated in 1983 whenPEI no longer reported to the TAS asabortions were no longer allowed to beperformed. Then in August 1986, budgetcuts at SC led to the cancellation of theTAS survey. Pressure from various sectorsresulted in the survey being revived inNovember 1987 but with a much smallerbudget. This impacted timeliness of datacollection and data quality.When abortion was removed from thecriminal code in January 1988, it had twosignificant effects upon the TAS:• The 1969 mandated data collection,now without a law, meant thereporting system was no longerrequired; and• Clinics began to emerge because therewas no longer a requirement thatabortions could only be performed inhospitals.SC chose to treat the TAS as “voluntary”and encouraged hospitals and clinics tocontinue to supply data for health-relatedpurposes. For the sake of continuity, thetitle of the survey continued to includethe word “therapeutic” even though ahealth-related justification no longer hadto be provided for a woman to obtain anabortion.In 1995, responsibility for data collectionwas transferred to CIHI (CanadianInstitute for Health Information) howeverSC remains responsible for public16

dissemination of the information.The following core data is currentlycollected by CIHI:• Province of report• Facility information• Province of residence• Age in single years• First day of last menses or gestationin weeks• Date of abortion• Inpatient days of care• Number of previous deliveries• Number of spontaneous abortions• Number of induced abortions• Initial procedure• Subsequent procedure• Type of sterilization• ComplicationsStatistics Canada 2004Induced Abortion ReportHighlights• Fewer abortions reported in 2004 thanin 2003.• Abortions declined in every age groupexcept the 40+ age group, where itstayed the same.• Women in their 20s had the largestdecline in abortion rates from 25.8 forevery 1000 women in 2003 to 24.7 in2004.• Among teenage women the inducedabortion rate was 13.8, down from 14.4in 2003. The teenage abortion rate hasdeclined gradually since 1996 when itwas 18.9.• Abortions continue to be mostcommon among women in their 20s.They accounted for 53 per cent of allwomen who obtained an abortion in2004.• Abortions declined in Nova Scotia,New Brunswick, Quebec, Ontario,Manitoba and British Columbia.Pregnancy Outcomes• Estimated total number of pregnancies2004: 445,899.• The overall pregnancy rate hit it lowestpoint in 2004 at 53.3 pregnancies per1,000 women.• Pregnancies declined for all age groupsunder 30 years of age and increased forthose over 30, with women aged 35 to39 reporting the greatest increase.Abortion Figures for 2004IndicatorOutcomeTotal Number of Abortions 100,039Abortion Rate (# of induced abortions per 1000 women aged 15–44) 14.6Abortion Ratio (# of induced abortions per 100 live births) 30.1Percentage of Pregnancies Ending in Abortion (% of abortions to total # of pregnancies) 22.4Statistics Canada Catalogue N. 11-001-XIE, July 13, 200717

Abortion by age group 2000–2004Number1200001000008000060000400002000001995 1996 1997 1998 1999 2000 2001 2002 2003 2004Statistics Canada Catalogue N. 11-001-XIE, July 13, 2007YearsAll agesUnder 1515–1718–1920–2425–2930–3435–3940 & over2004 Abortion ComplicationsIn 2004, SC based its figures on a total of42,880 records, 86 per cent from hospitaldata. SC also reports on second and thirdreported complications. There were noreports of third complications and only 0.01reported retained products of conception(POCs), and 0.06 reported hemorrhage forsecond complications.Surgical abortion is one of the safest typesof medical procedures. Complicationsfrom having a first-trimester abortion areconsiderably less frequent and less seriousthan those associated with pregnancy andchildbirth.IndicatorOutcomeRecords with no complications reported 98.56%Hemorrhage 0.07%Infection 0.41%Pelvic damage 0.05%Retained POC’s (products of conception) 0.72%Death 0Other 0Data produced by Health Canada Statistics Division, Statistics Canada 2007Source: Therapeutic Abortion Survey, CIHI18

Induced Abortions Greater than 20 Week Gestation: 2003–2004Gestation in Weeks 2003 2004Per cent of Greater than 20 weeks Abortions to Total Number of Abortions 0.31% 401Greater than 20 week Abortion Rate to Total Number of Pregnancies 0.0.7% 0.08%Data produced by CIHI, 2007According to data obtained through CIHI,0.08% of abortions in 2004 were providedafter 20 weeks gestation. This percentagedoes not support the notion promulgatedby abortion opponents that women inCanada routinely obtain abortion care upto nine months of pregnancy. In fact, nearly80% of abortions are provided during thefirst trimester (12 weeks) of pregnancyData Quality IssuesCIHI reports the Therapeutic AbortionSurvey database represents approximately90 per cent of all abortions performed inCanada involving Canadian residents. Thismeans, according to CIHI, the nationalnumber of abortions would be 110,042 yetunder-representation is probably higherthan the 90 per cent reported by CIHI.In Ontario, non Independent HealthFacilities Act (IHFA) facilities are notincluded in the count nor are medicalabortions in British Columbia. More thanhalf of these abortions are only reportedas aggregate counts with no detailedinformation. In addition, no clinic data arereported from Manitoba and the percentageof abortions performed on non-residentsand those performed on Canadians in theUnited States are unknown.19

Rights in Practice:Barriers to Availableand Accessible Care21

Abortion in Canada: From Sea to Shining SeaSheila Dunn MD, MSc, CCFP(EM), FCFP,Department of Family and Community Medicine, University of TorontoThe Canadian Health SystemUnder the British North America Act (1867)[now referred to as the Constitution Act],health is a provincial responsibility. Fromthe time it was initially decriminalized in1969, and reaffirmed with the SupremeCourt ruling, abortion has been consideredto be a health issue. By deduction, itfalls under provincial jurisdiction. TheCanadian health care system is based on13 separate provincial/territorial healthinsurance systems that use cost sharingwith the federal government. The federalgovernment is able to exert some controlover health care funds: there are minimalconditions placed on the use of federalmonies, and if provinces do not abide bythe federal regulations, federal transferpayments may be withheld. Under thesystem there is public payment for servicesprovided by physicians (known as privateservice provision) and by not-for-profithospitals.Public Financing/Private DeliveryThe Canada Health Act (1984) definesthe requirements for publicly fundedservices: accessibility, universality,comprehensiveness, portability andpublic administration. It is important tonote there is no requirement for coverageof drugs [pharmacologics/ medications/analgesics] used outside of the hospital, noris there required coverage for “medicallynecessary” services provided outside ofthe hospital by non-physician providers.Furthermore, the Canada Health Act doesnot define the term “medically necessary,”leaving it open to interpret what isconsidered a medically necessary service,and more specifically, if abortion qualifiesas a medically necessary service. TheCharter ruling, however, suggests abortionis in fact a medically necessary service,and this understanding is supported bythe Federal Government (under Liberalleadership), and one would argue, themedical profession.Hospital Care/Community CareThe provision of health services in generalis moving from hospital care providers tocommunity care providers (including homecare, ambulatory care, and surgical centres/clinics). Similarly, nearly half of abortioncare is now being provided by clinics, asubstantial shift from only a decade agowhen the vast majority of abortion care wasprovided by hospitals. While the CanadaHealth Act guarantees public funding forphysician and hospital services, manyservices (e.g. drugs, nursing care) are nolonger publicly funded once outside of thehospital (i.e. in the community). Moreover,for clinic-based abortion procedures, thephysician fee is covered; however facilityfees vary in terms of coverage.Access Issues: Geography MattersWomen’s access to abortion variesaccording to where in Canada they live.For example, women in rural and northernareas usually have to travel long distancesto receive care, and Prince Edward Island(PEI) entirely lacks in-province abortionservices. Women in PEI can access fundingfor out-of-province abortion services;however, they require referral from amedical doctor. Such barriers to access raisethe question of whether or not these womenhave reasonable access to these services.23

In New Brunswick, only hospital-basedabortions are funded, and even so, thereare several caveats: only gynaecologists canperform abortions, they can only occur inthe first trimester of pregnancy, and thenonly once two physicians deem it medicallynecessary. Women accessing clinic-basedabortions must pay the full cost. Theseregulatory barriers raise significantconcerns about accessibility for the womenof New Brunswick, and also raise thequestion of universality in terms of the wayin which the care is provided.Ontario, British Columbia and Quebec arethe only provinces with physicians whoprovide abortions past 20 weeks. Evenso, access to abortion services in theseprovinces is variable; wait lists for servicevary greatly and depend on municipality,and location with very limited availabilityin rural/northern regions.The Prairie provinces require long travelfor northern women to receive service,and the Territories offer only in-hospitalabortions during the 1st trimester, furtherstimulating concerns over barriers to access.The Territories, however, are one of thefew regions providing travel allowance.On the other hand, British Columbia (B.C.)provides more medical abortions thananywhere in Canada. B.C. women also haveaccess to clinic-based and hospital-based1st and 2nd trimester abortions and theirclinic fees are covered. Similarly, there isfull funding for clinic-based abortions inNewfoundland, Alberta, Quebec and inlicensed Ontario clinics.24

Law: Facilitating and Impeding AccessSanda Rodgers, BA, LLB., BCL., LLM, Faculty of Law, University of OttawaThe following is a synopsis of the Power Pointpresentation given by Sanda Rodgers. A fullerversion of this discussion may be found in“Abortion Denied: Bearing the Limits of Law”in C. Flood, ed. Just Medicare: What’s In,What’s Out, How We Decide, (Toronto:University of Toronto Press, 2006) and in“The Charter and Reproductive Autonomyin the Supreme Court of Canada”, J Downie,ed Health Law in the Supreme Court ofCanada, (Toronto: Irwin Law, 2007).Bearing the Limits of Law:Morgentaler, Abortion andEquality1. The Facts Forming the Basisof MorgentalerTwo reports studied the barriers to abortionaccess, the 1977 Badgley Report and the1987 Powell Report (Ontario). These formedthe basis of Morgentaler following the1969 Criminal Code liberalization. The tworeports highlighted the following issues:• Only 20.1 per cent of hospitals hadestablished TACs (therapeutic abortioncommittees).• Major delays existed in accessabortion.• The average abortion occurred at 16weeks gestation.• There was increased risk to women.• Women often had to pay extrafinancial charges between $20–$500.• Additional requirements—spousalconsent, other reports, marriage ora repeat abortion all were reasons torefuse abortion.• Quotas existed on numbers andgestational limits.• Where abortions were provided,doctors failed to use techniques knownto reduce complications.• Punitive care existed—minimalanesthetic, breaches of confidentiality,forced sterilization.• Women subjected to non-supportivebehavior and outright hostility.• Stereotypes existed includingirresponsibility and promiscuity.• Women had to assume the expense oftravel, accommodation.• Data on abortion were not collected,nor analyzed.• Ontario had introduced legislationbanning extra-billing—some reductionin abortion services resulted due tophysician protest.The Badgley and Powell reports concludedthat these barriers impacted particularlyon “socially vulnerable women—theyoung, less well educated and newcomersto Canada”. Powell recommended theestablishment of free standing clinicsproviding a full range of reproductivehealth care services. At the time, Dr. HenryMorgentaler was operating abortion clinicsin Quebec and Ontario.2. DecriminalizationIn 1988, in Morgentaler , the SCC struckdown section 251 as violating section 7and section 2 of the Charter. Both clinicand hospital abortions were now legal andfreed from the administrative structuresthat delayed access. The evidence providedby the Badgley and Powell reports was keyto the Morgentaler decision. Both JusticesDickson and Lamer referenced these reports25

in their judgements, citing the reportsfindings regarding delays, complicationand mortality rates, psychological injury,the number of hospitals with functioningcommittees, the definition of health, andthe need for women to travel or to leaveCanada to obtain an abortion. JusticeBeetz, with Justice Estey concurring, notedthat the reports provided the evidentiarybasis to support the claim that section 251violated women’s Charter rights.3. After MorgentalerThe Federal Government moved torecriminalize abortion. Bill C-43 wasdefeated in 1991. There was provincialdefiance to the Morgentaler decisionhowever, legislation and regulationsreinstating barriers were passed, butsubsequently also were struck down. Mostnotably, there was an increase in antiabortionviolence in the country.4. Access After 1991—Post DecriminalizationA second generation of governmentsponsored reports were released fromOntario (1992), the Northwest Territories(1992) and British Columbia (1994). Itwas ‘deja-vue’ all over again with thesenew reports repeating Badgley andPowell’s original findings. There wasdocumentation of racist delivery ofabortion and reproductive health careservices and of imposed contraception andsterilization. The young, the poor, womenwith disabilities and aboriginal women,refugees and women of colour were notedas being particularly mistreated. Therewas documented evidence of pressure toterminate a pregnancy or to use permanentforms of contraception such as sterilizationor Depo-Provera for some women.A third generation of non-governmental(NGO) reports was released from theCanadian Abortion Rights Action League(CARAL), now Canadians for Choice. Thisprivate NGO released a 10 year report in1998 and a 15 year report in 2003, with theinformation presented updated in the 2007report Reality Check.5. Current SnapshotPrince Edward Island provides noabortions. New Brunswick andSaskatchewan fund hospital abortions butprovide no funding to clinics. Quebec andNova Scotia provide hospital abortionsbut only partial funding to clinics. Alberta,British Columbia, Ontario, Manitoba andNewfoundland fund hospital and clinicbased abortions. In general, hospital waittimes are approximately 6 weeks. TheMorgentaler Clinic in Ottawa had a 6 weekwait time in the fall of 2007. This is clearlytoo long.Despite Morgentaler, all the barrierspreviously documented remain andhospital access has actually decreased.A) AccessIn 2003, access to abortion was reducedfrom 20.1 per cent to 17 per cent ofhospitals; by 2006 access fell to 15.9per cent. Barriers such as travel, lackof information, long waiting periods,gestational limits, unsolicited anti-choicecounseling, increased violence, fewerproviders, and failure to train physiciansall continue. In addition, financial barriersalso continued, with women being chargedbetween $250 to $1425 to obtain an abortionin some locations. Evidence exists ofpartner coercion and parental consentrequirements. Some abortion providershave voice mail systems that require awoman to leave personal information.B) Hospital Closings and AmalgamationsA number of hospital closings andamalgamations of religious and non-26

sectarian hospitals impacted access toabortion. From 1997 to 1998, the number ofCatholic-operated hospitals grew by 11 percent while secular public facilities declinedby 2 per cent. Of the 127 hospital mergersbetween 1990 –1998, half resulted in theelimination of all or some reproductivehealth services.In Ontario, in 2006, 17 per cent of hospitalshad accessible abortion services, down11 per cent from 2003—and only one isnorth of the Trans Canada Highway. InOttawa, the hospital providing abortionservices shuts down for a month in thesummer. Three Ontario hospitals had thelongest wait times to access abortion in thecountry—Ottawa, Sarnia and Peterborough.C) Details of Medical MalpracticeThe following forms of medical malpracticewere identified in the delivery of abortionservices:• Deliberately misleading informationgiven by anti-choice doctors andhospital switchboard operators.• Withholding a diagnosis of pregnancy.• Threatening to withdraw services fromthe family.• Failing to provide appropriatereferrals.• Delaying access.• Mis-directing women to anti-choiceorganizations.• Providing punitive treatment.These are all examples of medicalmalpractice and violate the CMA Codeof Ethics prohibiting discriminationon gender, marital status and medicalcondition. They also breach the selfregulatory requirements of ProvincialMedical Colleges. In a British Columbiadecision, the College may be sued where adoctor knew or should have known that adoctor is engaging in medical malpracticeand fails to investigate.6. Abortion and Women’s HealthIn 2000, 105,669 Canadian women hadan abortion in Canada. Two-thirds wereperformed in hospitals, the balance inclinics. Approximately 40 per cent ofCanadian medical schools teach no aspectof the abortion procedure, in fact more classtime is devoted to Viagra than to abortionlaw, policy, procedures and pregnancyoptions combined (Koyama & WilliamsAbortion in Medical School Curricula(2005) McGill J of Medicine 157). Yet accessto abortion is access to essential health care.A recent American report on women’s healthidentified access to an abortion provider asone of four indicators of access to health care.The report listed unintended pregnancies as a“key health condition indicator”. In contrast,the first Women’s Health Surveillance Report,done for Health Canada in 2003, listed sexualhealth, contraception and perinatal care,but not abortion access, as the key healthindicators for women.The Romanow Commission on theFuture of Health Care in Canada opposedprivatization, but “abortion” appearsonly once in the 357 page report, in astring reference to for-profit clinic serviceprovision. Abortion, arguably the leadingexample of privatization, was not evaluatedby Romanow for benefits and deficits,nor was the impact on specific women’sconstituencies considered.Women have the least to gain from forprofitprivate parallel health care systemsbecause they lack autonomous householdincome, have fewer financial resources, areless likely to have health coverage throughpaid work, and are more likely to be poor.Ironically, access to abortion services isso compromised that it is privatizationthat resulted in increased access to somewomen in some provinces — particularlyto women with financial resources—disproportionately white, middle class,educated women in urban areas.27

7. Charter challengesTwo recent and successful challenges—inManitoba and in Quebec—forced thoseprovinces to reimburse the cost to womenwho accessed clinic abortions at theirown private expense because of delaysassociated with hospital based abortions.At the time of this symposium, a NewBrunswick challenge to the refusal to fundclinic based abortions was pending.8. Continuing Legal and OtherImpedimentsAnti-choice activists remain active inCanada. One prime example is theParliamentary Pro-Life Caucus. There is ahistory of private members bills of whichthe most recent (sic) is only the latest—BillC-484 Unborn Victims of Crime Act. In the2006 election, there were 90 declared antiabortionmembers in the Liberal (16) andConservative (74) parties. Nine of the 26Cabinet Ministers in January 2008 wereanti-abortion and an anti-abortion memberwas named as Parliamentary Secretary tothe Prime Minister and to the Minister ofFinance. 25Despite more than 105,000 annual abortionsoccurring in Canada, we cannot concludethat women who would choose or have nochoice but to terminate their pregnanciesare able to do so. Women are unable toterminate pregnancies in accordance withtheir own needs and aspirations.Thirty years after Badgley and twentyyears after Morgentaler, ineffective andinsufficient provision of abortion servicescontinues to violate women’s Charterequality protections. We have detailedreports of multiple gatekeepers, providermalpractice and delays by professionalsand governments that increase risk. Wehave descriptions of interference withwomen’s security of the person, equalityand freedom of conscience. We knowthat some women—aboriginal, disabled,racialized, rural, poor, immigrant andyoung—bear an even greater share of theburden.Discriminatory delivery of medicallynecessary health services needed onlyby women is sex discrimination. Wherediscriminatory delivery of medicallynecessary services disproportionatelyimpacts racialized, immigrant, aboriginaland poor women, it violates s. 15 of theCharter on grounds of race and citizenship.Charter protections have proven elusive atbest for Canadian women. The costs, delaysand lack of public funding for further legalchallenges, and the limited impact of thevictories, suggest that it is women who willcontinue to bear law’s limitations despitetheir right to law’s protection. For womenwho find themselves pregnant, accessdelayed is justice denied.25 John-Henry Westen, Nine Pro-life Membersof Parliament in New Candian GovernmentCabinet” Feb 6, 2006 http://www.lifesite.net/ldn/2006/feb/06020603.html28

Better Never Than Late, But Why?The Contradictory Relationship Between Law and AbortionShelley A. M. Gavigan, Osgoode Hall Law School, York UniversityI am honoured to have been invited to bea panelist in such distinguished companyat this important event. I am particularlyattracted to the invitation in the title ofthe Symposium to reflect upon the 1988decision of the Supreme Court of Canadain R. v. Morgentaler. 26 In reflecting uponthe case, its significance and legacy, I wantto talk about the importance of history,the contradictory nature of law and theenduring importance of ideology.I take this liberty of insisting upon theimportance of historical experience andperspective and I do so because I am of theview that it is due entirely to my historical,as opposed to current, engagement with thecritically important issues of abortion andlaw that I have been honoured with thisinvitation.Reflections on the Importanceof HistoryI was reminded recently of the importanceof history and how quickly something“becomes” history by my own lapse inprecision: I asked my research assistantto pull the Supreme Court’s Morgentalerdecision for me, which she dutifully did:the Supreme Court’s R v Morgentaler1993 decision. 27 Of course, this was myfault—I had not been clear enough. Butit then occurred to me that my smartfeminist research assistant may not haveknown there had been other, indeed, afew other, Morgentaler decisions. 28 To myfeminist colleagues in the academy I ask,are we confident that we are teaching26 [1988] 1 S.C.R. 30; [1988] SCJ No. 1.27 R v. Morgentaler [1993] 3 S.C.R. 46328 e.g. Morgentaler v The Queen (1975) 30 C.R.N.S209.this generation of law students about thisdecision and its importance? One hasto hope that they are not relying on themainstream media for their introduction—or misinformation—about the Morgentalercase? Clearly this Symposium is animportant event, intended as it is to reinsertabortion and reproductive rights onour collective agendae.I was speaking last week about today’sSymposium to a friend who graduatedfrom Law School in 1989. She said her timeat law school was marked by preoccupationwith the issue of abortion law and thatfor her and women law students of hergeneration, the 1988 Morgentaler decisionwas a defining moment of victory. Iremember it so well, and so personally.On the early evening of January 28, 1988,almost two weeks after our daughter’s firstbirthday celebration, we had bundled herinto her stroller and joined hundreds ofkindred spirits in a spontaneous rally infront of the then still standing Morgentalerclinic on Harbord Street in Toronto tocelebrate the decision of the Supreme Courthistoric decision. Women, abortion andlaw had become the issue around whichI politicized when I embraced feminismin my twenties, to the great chagrin ofmy Irish Roman Catholic father and myFrench Roman Catholic mother who was amaternity ward nurse. For the next twentyyears my political and academic workfocused on abortion. As a law student ina seminar on Advanced AdministrativeLaw, I tried to research the processesand practices of therapeutic abortioncommittees in Saskatchewan hospitals. Thisproved to be difficult research, as it wasnigh unto impossible to find any working29

committees. Like many Canadian feministsof my class and generation, I marched incountless International Women’s Day andpro-choice demonstrations. Who can forgethow cold our feet got in those frosty March8 marches on Women’s Day before thearrival of global warming? We marched andcarried signs that demanded the state getits laws off our bodies, repeal abortion lawand drop the charges, again and again andagain.I studied the legal history and context of thecriminalization of English abortion law, thegenesis of the statutory prohibition in 1803,the demise of the relevance of quickeningand the ousting of the jury of matrons, andthe extension of the criminal law’s scopeover the entire period of pregnancy. 29 Istudied the issue of the criminal liabilityof the non-pregnant woman attemptingthe self-induce a miscarriage of a nonexistingpregnancy which took me into thesnakes and ladders of the law of impossibleattempts. But, there was not much ‘action’in the criminal cases—one encounteredabortion in criminal legal historyprincipally in homicide, where a womanhad died, and her lover, friend, doctor,midwife was prosecuted for willful murder.When I turned to social history andwomen’s history, I found a different story.Indeed, it was in the course of this researchthat I learned my most profound politicaland intellectual lessons: to appreciate theimportance of women’s agency and selfdetermination,and the ways in which inthe abortion context they had defied thelaw and medical men: I found the voicesof women who said to doctors, “Nonsense,doctor, there is no life yet…” and “Doctor, Ido not believe it is a crime.” 3029 Shelley Gavigan, “The Criminal Sanction as itRelates to Human Reproduction” (1984) 5 J.30 see Shelley A.M. Gavigan, The Abortion Prohibitionand the Liability of Women: Historical Developmentand Future Prospects (Master of Laws thesis,Osgoode Hall Law School, York University, 1984)at 96-97. See also, Shelley A.M. Gavigan, “‘OnThe historical record of coercive andrestrictive abortion law in the Anglo-Canadian context is filled with relativelyfew criminal prosecutions and far moreexpression of women’s resistance. Oneneed think no further in our recent historythan of an ordinary young woman, ChantalDaigle, thrust unwillingly into the nationalnews in 1989 when her former boyfriendattempted to prevent her from terminatingher pregnancy—neither the first nor lastman to attempt to do so, neither the firstnor last man to fail in the Canadian courts. 31During that summer, under the watchfuleyes of an entire nation, Daigle resistedher former boyfriend, the Canadian antichoicemovement, the courts, amongothers. Daigle reminded us that “women’sindividual and collective struggles forchoice and self-determination may havebeen constrained, but have never beenwholly confined nor determined by thelegal and judicial processes.” 32The Contradictory Nature of LawIt was also in this work into the socialand legal history of abortion that I beganto develop an understanding of thecontradictory nature of law, includingcriminal law, and what I later characterizedas the “fragile, incomplete andcontradictory” nature of legal victories, 33including the decision we are invited toreflect upon today. As but one illustration,bringing on the menses’: The Criminal Liabilityof Women and the Therapeutic Exception inCanadian Abortion Law” (1986) 1 C.J.W.L. 279.31 Daigle v. Tremblay [1989] 2 S.C.R. 530; forearlier unsuccessful ‘father’s rights’ injunctionapplications in Canada, see Whalley v. Whalley et al(1981), 122 D.L.R. (3d) 717 (B.C.Co.Ct); Medhurstv. Medhurst et al (1984), 9 D.L.R. 252 (Ont.H.Ct.).For a later one, see Murphy v. Dodd (1999), 63D.L.R. (4th) 515 (Ont.H.Ct.).32 Shelley A.M. Gavigan, “Morgentaler and Beyond:Abortion, Reproduction and the Courts” inJanine Brodie, Shelley A.M. Gavigan and JaneJenson, The Politics of Abortion (Toronto: OxfordUniversity Press, 1992) 117 at 146.33 Ibid.30

the 1969 introduction of the therapeuticexception in the Canadian criminalcode had at least one surely unintendedconsequence; in casting abortion as amedical matter, the law inhibited husbandswho went to court—prior to 1988—toattempt to prevent their wives fromterminating their pregnancies. 34 This is onesmall instance, in my view, of the law notonly mediating but inhibiting patriarchalrelations. In many ways, the legal historyof abortion taught me most of what I everlearned about women, law and the state,about law and patriarchal relations, andlaw’s contribution to social change.But back to the evening in Januarytwenty years ago—as we left the rally onHarbord Street and walked back to ourcar, we encountered a small, disgruntled,venomous group of anti-choice women.Looking at the baby in the stroller, theyhurled an epithet at us, one that embodiedall the contradiction and hatefulness oftheir self-proclaimed pro-life stance: “Whydidn’t you abort that one?” I had neverdoubted their commitment to life wasconfined to the invisible and unborn, but inthat moment I came to appreciate that theirhatred and disrespect for women extendedto living and breathing children.The historic Morgentaler decision wasbut the first of many legal defeats theirmovement would experience in Canadiancourts. But, the experience of the lasttwenty years suggests their defeats at thehands of the law have not been fatal. As Ihave suggested elsewhere, it takes morethan “feeble law reform and litigation” todefeat patriarchal institutions, practices andrelations.I am happy to leave close analysis ofthe Supreme Court decision to theConstitutional scholars. Suffice it to observethat as a feminist activist and veteranof marches, all-candidates meetings,campaigns, days of action, struggles to getthe sisters in the early days of NationalAssociation of Women and the Law to takea pro-choice position—I hope I will beindulged for saying simply that after yearsof struggle—reading Chief Justice Dickson’sand Madam Justice Wilson’s words madeone a bit lightheaded:Forcing a woman, by threat of criminalsanction, to carry a foetus to term unlessshe meets certain criteria unrelated toher own priorities and aspirations, is aprofound interference with a woman’sbody and thus a violation of her securityof the person. 35Theoretically, I take the view that law is asocial form in and through which socialrelations are mediated and expressed. Butwith respect to abortion, I look outsidethe law to civil society. I do acknowledgelegal abortions tend to be safer than illegalabortions. And so I am not agnostic aboutthe efficacy of legality and its importanceas a foundation for safety and access—it ismost assuredly a necessary but insufficientprecondition.In the area of abortion, Canadian womenhave experienced many legal victories inCanadian courts, some by the skin of theirteeth, some at the hands of judges who aremore grudging than others, with dissentsthat give cause for alarm.The Importance of IdeologyIt is now axiomatic to observe the SupremeCourt’s 1988 decision resolved somequestions but left many more dangling—tantalizing and inviting to the opponents ofwomen’s right to choose. For instance, theprecise nature and expression of what alljudges of the Supreme Court characterizedas the “state’s interest in the foetus”remained to be elaborated and tested.34 E.g. Medhurst, supra note 7.35 Morgentaler (1988), supra note 4 at 408.31

Long-time anti-choice renegade, JoeBorowski, had been granted standingby the Supreme Court in 1981 to bringan action challenging the validity of thetherapeutic abortion amendments to theCriminal Code in the name of foetal legalpersonhood. 36 He lost the foot race withMorgentaler to the Supreme Court, and bythe time he reached the Court, the abortionsection of the Code had been struck down,and his appeal was dismissed as moot. 37Still, the discourse of the ‘unborn child’began to appear in the judgments, andis now ubiquitous, even as the Courtsresisted the claims advanced in favourof foetal legal personhood and so-calledfather’s rights. 38 Having lost the legal fightin the context of criminal law and accessto abortion, anti-choice advocates lookedto other legal forms, such as child welfare,to advance their cause. In 1996, they foundwhat they surely believed to be the posterchild for foetal rights in the pregnancy ofa poor pregnant woman addicted to glue,who had lost three children to child welfareapprehension, and who refused to stop andrefused treatment. 39The child welfare agency sought adeclaration that the superior court’sinherent parens patriae jurisdiction overchildren extended to “unborn children.”And they lost, taking comfort from adissent by Justice Major that my Childrenand the Law students thought was right on.In 1992, I wrote,The potential cultural and politicalsuccesses of the foetal rights movement…lie in its ability to both capture the36 Borowski v. Minister of Justice of Canada andMinister of Finance of Canada (1982), 39 N.R. 331(S.C.C.).37 Borowski v. Canada (Attorney General), [1989] 1S.C.R. 342 (S.C.C).38 e.g. R. v. Sullivan, [1991] 1 S.C.R. 489; see alsoDaigle v Tremblay, Murphy v Dodd, supra note 7.39 Winnipeg Child and Family Services (NorthwestArea) v. G. (D.F), [1997] 3 S.C.R. 925.imagination and tap the anxiety of peoplewho are receptive to the notion thatpregnant women are capable of extremeacts of selfishness and irresponsibility.The foetus is presented as helpless andvulnerable, the most innocent of innocentvictims. Again, what is striking is thatthis campaign has been so successfulwithout significant support in Canadianlaw for its fundamental underlyingpremise: that the foetus is a person withlegal rights. 40But, as Rosalind Pollack Petchesky arguedwith prescience in the American context, 41the legalization of abortion contributedto the ascendance of an aggressive antiabortionmovement, one that has continuedto organize in the churches and religiousschools. Their discourse of the unborn childhas become a dominant ideology of ourtime. Their ability to present all pregnantwomen as risky, possibly irresponsible,always potentially hostile to their ownpregnancies, has in my view becomepervasive and I believe socially shared. So,rather than speak of maternal mortality,or of women’s inherent dignity, of thecomplexity of the abortion decision, nevernot a complex decision, never an easychoice, 42 or of sexual coercion, they assertonly a chorus of the unborn child in a selfimpregnatedwoman.40 Gavigan, supra note 8 at 132.41 Rosalind Pollack Petchesky Abortion and aWoman’s Choice: The State, Sexuality andReproductive Freedom (Boston: NortheasternUniversity Press, 1985).42 See Wilson J. in Morgentaler (1988), supra note2 at para 242: The decision is one that will haveprofound psychological, economic and socialconsequences for the pregnant woman. Thecircumstances giving rise to it can be complexand varied and there may be, and usually are,powerful considerations militating in oppositedirections. It is a decision that deeply reflectsthe way the woman thinks about herself and herrelationship to others and to society at large. It isnot just32

The law is implicated in the ideology of theunborn child, but it seems to me that someof its currency and legitimacy derives fromits opposition to the law—as a form thatneeds to be protected, and the law is notdoing that. I take the view that ideologiesbecome dominant not necessarily throughlaw and occasionally in opposition tolaw, but emergent as well as dominantideologies may nonetheless be imported orincorporated into law. When I last wroteabout abortion fifteen years ago (hence mycommitment to an historical perspectivetoday), I wrote that the strongest weaponin the arsenal of the anti-choice movementhad not yet proven to be a legal one—and Icontinue to hold that view.I am mindful that the Symposium’sdedicated organizer, Dawn Fowler, wouldhave liked me to discuss the dilemma ofthe dearth of availability of late trimesterabortions in Canada—and this I have notdone. But I do want to make the point thatideologues like David Frum 43 attempt tocultivate in the national imagination thatlate trimester abortions are a ubiquitousmenace, a direct legacy from MadamJustice Wilson’s courageous reminder of thelimits of men to be able to respond—‘evenimaginatively’—to something so out ofhis personal experience. 44 It is difficult todiscern even a kernel of truth in DavidFrum’s construction of the crisis– for theworld is truly upside down through hislens. The image of the scourge of latetrimester abortion could not be further fromthe truth, and yet it is asserted as truth.Increasingly, I believe we must situatethe struggle of Canadian women withina medical decision: it is a profound social andethical one as well. Her response to it will be theresponse of the whole person.43 David Frum, “The Morgentaler DecisionCheapened the Worth of Human Life” http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/01/21/david-frum-the-morgentalerdecision-cheapened-the-worth-of-human-life.aspx.44 Wilson J, in Morgentaler (1988) supra note 2.the broader context of women around theworld who are struggling under adverseconditions to deal with unintendedpregnancies. A recent study by GildaSedgh and her colleagues, published inLancet, 45 found that 48 per cent of allabortions worldwide were unsafe andthat 97 per cent of all unsafe abortionswere in developing countries—so manyof the world’s women have access onlyto unsafe abortions, if they have accessat all. I am neither a Constitutional Lawnor International Law scholar. Currently Iam interested in legal history of criminallaw, but I know something of the historicstruggle of women to control their fertilityagainst the odds of men, medicine thestate, the law and religion. Is it at allsurprising that women have always hadto resist and challenge their relegation tosocial invisibility as moral agents? Butfeminists have long known that there areno easy victories, 46 certainly not in the areaof reproductive health, and we have theexpertise in this area, in this room, startingwith the person sitting next to me.I do struggle with how to engage withthe dominant ideology of the unbornchild. But there are some lessons that canbe drawn from historical reflection. Forme, it is important to remember the mostmeaningful victories, especially thosederived from law, need to be extendedand experienced outside the four cornersof the courtrooms, and celebrated beyondfeminist circles, especially feminist legal45 Gilda Sedgh, et al, “Induced Abortion: EstimatedRates and Trends Worldwide” (2007) 370 Lancet1338 at 1342 (www.thelancet.com). Unsafeabortions are defined as “Abortions done eitherby people lacking the necessary skills or in anyenvironment that does not conform to minimumor medical standards, or both. These include(a) abortions in countries where the law isrestrictive and (b) abortions that do not meet legalrequirements in countries where the law is notrestrictive” (at 1339).46 Kathleen McDonnell, Not An Easy Choice: AFeminist Re-Examines Abortion (Toronto: TheWomen’s Press, 1984).33

circles. For twenty years prior, leading upto the Morgentaler decision, women activistsand their allies made abortion a public,political issue in Canada, starting with theAbortion Caravan in 1969. Dr. Morgentalerlent his name, his professional reputation,his career and indeed his life to the supportof this important campaign. But it wasnever just about the law. It was about andfor Canadian women.In closing, my last thought is this—ifwe acknowledge the current ascendantdiscourse is one of the unborn child, thenwe as feminists and supporters of choicefor women must re-insert the women in thesocial vernacular, and start again from thepremise that the pregnant woman and theunborn child speak with one voice, and thatvoice is hers.34

Information Failure: An Ontario Case StudyLorraine E. Ferris, Faculty of Medicine, University of TorontoThis is a synopsis of the Power Pointpresentation given by Lorraine Ferris.Why Do We Need InformationAbout Abortion Services?Information about abortion services hasseveral uses such as:• To examine if women have access toabortion services in their geographicarea;• To understand if access is timely;• To plan services and programs; and• To ensure quality of care.The focus of this presentation is oninformation gaps concerning provincialinformation from administrative/registrydatabases. The information contained inthis presentation has resulted, in part, fromthe Studies on Access to Abortion Services(SAAS), funded by the Ontario Women’sHealth Council through full fundingfrom the (Ontario) Ministry of Healthand Long-Term Care (MOHLTC). SAASStudy 1 describes Ontario abortion services(1994–2005) by examining utilizationpatterns, distribution of abortion servicesand complication rates in the province bygeographic area.SAAS Study 1• SAAS Study 1 was conducted atthe Institute for Clinical EvaluativeSciences (ICES): ICES is named asa prescribed entity in the [Ontario]Personal Health InformationProtection Act.• SAAS is subject to ICES policies/procedures and falls withinunderstandings/agreements betweenthe (Ontario) MOHLTC and ICES.• No SAAS study data contained personalpatient identifiers—a unique encryptedpatient identifier is used to link data.• Complete data from the OntarioAbortion Database (JB06) was onlyavailable until 1997; this informationwas collected and maintained by the(Ontario) MOHLTC.• Information was sourced fromstandardized physician case reports(no patient or provider identifiers wereprovided).• The database contained informationon both hospital (1985–1997) and clinicabortions (1992–1997). Detailed patientdemographic and clinical informationwere available, including:– Age, marital status, county ofresidence; and– Initial and subsequent surgicalprocedure, gestational age,subsequent complications (ifapplicable), number of days inhospital (if applicable), number ofprevious abortions/deliveries (ifapplicable), facility type.Data Limitations• Data did not contain patient identifiersor encrypted universal patientidentifiers, thus there could be norecord linkage with other databaseswhich:– Limits examination of longer-termcomplications or follow-up care;and– Limits examination of accessissues / barriers as only “county”information is available.35

• The accuracy and completeness ofthe data was dependent on physiciandiligence.Data Post-1997• The Ontario Abortion Database wasdiscontinued after 1997 and there islost information for 1998.• Post-1997, a number of administrativedatabases must be used to gather thisinformation. There are both pros andcons to this change.Context• Over the ten year study period coveredby SAAS, there was a distinct trend tonon-hospital abortions. In particular,a trend away from same-day hospitalabortion procedures.• However, after 1997, most of thedetailed information availableconcerns hospital-performedprocedures.Hospital Abortions Post-1997• The Canadian Institute for HealthInformation (CIHI) and the NationalAmbulatory Care Reporting System(NACRS) databases collect data on:– Inpatient Abortions—CIHIDischarge Abstracts Database(DAD)– Outpatient Hospital Abortions—NACRS, CIHI Same Day Surgery(SDS) Database• These databases provide a reasonablycomplete picture of hospital abortions,such as:– Patient age, postal code,gestational age, past history oftherapeutic and spontaneousabortions, procedure(s) performed,co-morbidities, immediatecomplications, length of stay, andhospital.• They can be linked to other databasesusing an encrypted patient identifier.Data Limitations• There is no standard definition for a“complication”.• The data is by hospital and not byphysician; therefore it cannot belinked to any other database to obtainphysician information.• Key information is missing for someyears (e.g. gestational age).• There are specific problems with theCanadian Classification of HealthInterventions (CCI) system (e.g. use oflaminaria).• Changes to the definition of daysurgery/surgical day/night care makecomparison difficult over time.• Changes to the diagnosis andprocedure coding systems. (ICD-9/CCP to ICD-10/CCI) impactlongitudinal trend analyses.Free-Standing Abortion Clinic AbortionsPost-1997• After the discontinuation of theAbortion Database, the onlyinformation available for non-hospitalabortions is from the Ontario HealthInsurance Plan (OHIP) billing records.• SAAS use of OHIP includes the useof encrypted patient identifiers whichprovide some linkability.Data Limitations• OHIP data undercounts the number ofabortions.• OHIP data is very limited with respectto clinic abortions (e.g., only that theprocedure occurred).• Records must be linked to otherdatabases to learn more about theabortion.36

– Demographic information (patientage, postal code) available fromthe Registered Persons Database(RPDB) but postal code may beout-of-date– No information about gestationalage, parity, number of previousabortions/ spontaneous abortions• The utility of OHIP fee codes indetermining the method of terminationis limited.Gaps in Abortion Information• There is virtually no information onout-of-hospital abortions since 1997.– Major gap as these representthe majority of abortions in theprovince;– Cannot provide a complete pictureof Ontario abortions.• This means one cannot fully examineaccessibility and timeliness becauseinformation on gestational age islacking.• There is a lack of informationnecessary to examine predictors ofcomplications for all Ontario abortions.(e.g., gestational age is not available).Addressing the Gap• SAAS is supplementing theinformation from the administrativedatabases through primary datacollection (i.e. surveys of hospitals andclinics).• The studies within SAAS will providea comprehensive picture of abortionservices in Ontario.• Ontario needs a more permanentsolution to this information gap.• Information on out-of-hospitalabortions needs to be collectedroutinely using a standardized formwith clear definitions.• This information should be availableby site and comparable to informationwe have for hospital abortions.• We believe sites performing abortionsmay be the best catalyst for thischange.• Still, there are no simple solutionsand moving forward will requirepractitioners, lawyers, policy-makers,and others to work together to addressthe information gap.37

Our Providers:The Challenges of Their Work39

Challenges of Providing Abortion Care: A Provider’s PerspectiveKonia Trouton MD, CCFP, FCFP, MPH, Vancouver Island Women’s ClinicProviding abortion care in 2008 in Canadastill has political, economic and regulatorychallenges. Because the existing facilitiesand provider numbers seem to be fairlystable, this also poses challenges to enhanceabortion care, and to allow new providersto obtain and maintain experience inthe field. Education about abortion hasimproved, but we have not yet made ourprofession in abortion, or in reproductivehealth, part of mainstream medicine eitherby regulation or certification.I want to start by highlighting a few of thesmall “p” political challenges of abortion, asmy legal colleagues have spoken to many ofthe federal, provincial and inter-provincialissues. I have encountered many politicalchallenges in trying to enhance abortioncare—so I am going to use the experienceof my clinic in Victoria as a case study tohighlight some of these issues.I have had the privilege of working on staffin 15 different facilities providing abortioncare in five provinces and territories inCanada over the past 15 years. From thisexperience, in 2003, I started working toestablish my own clinic in Victoria.I came to Victoria believing that in the newmillennium, abortion care should be linkedto related women’s health issues for two mainreasons: 1) to provide more comprehensivecare to women who seek abortions, and 2)to mainstream abortion practice within awomen’s health care framework. In otherwords, I wanted to set up a women’s clinicthat included abortions, and not have a clinicthat focused only on abortions.For the three years prior to that, I wasbased in Vancouver, but was unable to findmore than a day and a half a week work inabortion care. When I came to BC, I had 10years experience in abortion care, up to 20weeks gestation, but the clinics had a stablegroup of providers. During the three yearsin Vancouver, I flew to Toronto one-to-twotimes a month to keep up my skills. I havesince met and trained other providers whohave been unable to get enough work inabortion care, and have moved onto othermore stable forms of work.When the opportunity came up in Victoria,due to the retirement of the main providerthere, I saw the chance to set up a women’sclinic. This was not as easy as I thoughtand sometimes I am naive. What existedfive years ago was dedicated hospital timefor 20–30 procedures per week in the firsttrimester, and under general anaesthetic.This dedicated operating time for abortionis unheard of in most of Canada. However,this provider worked alone, did all her owncounselling and follow-up, and was a targetfor some anti-choice activity.I sought to find family physicians whowould be excited to have me workalongside their practice, offering surgicalabortions, medical abortions and IUD care.Strangely enough, there are not many ofthose types of clinics, or doctors. I calledthe local birth control clinic, and theirboard did not want me to work, evenjust a day a week, doing pre-operativeabortion assessments and scheduling theabortion in the hospital. Paradoxically, theysupplied many referrals for abortion andprovided after care. They were much morevigorously opposed than I ever expected,and while I continued to work there oncea week doing IUD insertions, I knew tolook elsewhere for office space. I calledsome physician colleagues in the peace andjustice movement, whom I knew for manyyears, and I called some alternative healthcare facilities, but the doors were shut foroffice space.41

I eventually found a clinic home with threephysicians who agreed abortion is partof normal women’s health and could beintegrated alongside their family practiceand obstetrics care. Once I started doingsurgical abortions (MVAs) in the officeand offering medical abortions, they wereanxious but remained with me for threeyears, taking call for patients at night.However, while I was able to see theirfamily practice patients, I still had noclinical back up from them—they wouldnot provide methotrexate for the medicalabortion and did not plan to learn how todo an assessment prior to an abortion. Itwas not a true collaborative practice. At thattime, I also talked to the physicians at thebirth control clinic about doing abortionassessments in our clinic while I workedin Vancouver or was away. After callingeach of the 12 doctors, two agreed, but theyonly lasted for a few months, and neverexpressed interest in learning how to do theprocedure.During those first three years, I feltconstrained by the restrictions of thehospital because they only permitted firsttrimester abortions and all were doneunder general anaesthetic. I was travelingonce too often on the ferry with patientswhose laminaria I had inserted, and wewere both going to one of the Vancouverclinics so that I could do her dilation andevacuation (D&E) there. I worried about therisks and costs to women travelling underthese conditions and lamented about theinefficiency.In the first year there were also somechallenges with two other providers whodid three-to-four abortions per month,and who had increased their volume inthe six months before I started. It becameapparent that the complication rate wasabout 30 per cent. It may seem odd to you,but the hospital does not generate annualstatistics on each type of surgery for thequality assurance committees to review.Speaking only about the gynaecologycommittee, we review complicationsbrought to our attention from the nursingstaff, unexpectedly long lengths of stay, andsurgeries that have generated complaints.In addition, it is unusual that a familyphysician is on the gynaecology qualityassurance committee.As a family physician, my privileges comefrom the family medicine department, notgynaecology, even though gynaecologytheoretically reviews quality ofgynaecological surgery. I had to have myD&E ability assessed by a gynaecologist atthe hospital who does not do D&Es. So, asa family physician doing abortion work, Icould fall through the crack of having mywork fall between two departments. In theend, the physician with the complicationsvoluntarily retired, and the committeecontinually tells me they appreciate myinvolvement. This year, the hospital isputting together an application for theNational Abortion Federation (NAF) sothat they can become accredited as aninstitution.In the hospital, abortions are part of theregular day surgery case load, so womenare surgically prepped in one area, sent tothe OR, and moved to the Recovery Roomalongside those receiving other care—inorthopaedics, neuro-surgery, generalsurgery and gynecology. I am assignedto work with one of the 20 anaesthetistsand three of the 60 Operating Room (OR)nurses daily—different ones every day.Remember, the nurses in general hospitalshave not done the patient counsellingprior to the abortion, they did not come towork necessarily because they care aboutchoice, they do not necessarily work inthat hospital because we do abortions—forthe most part they are just doing theirjob. All this led me to reflect that a bettermodel could be provided, and old dogs canlearn new tricks. I work in some hospitalsin Canada that have a separate floor or42

wing where abortions occur, includingcounselling, and I was resistant to repeatthat model, as it moves abortion care againout of the realm of normal women’s health,and can stigmatize it further. It is also amore costly model of care compared toclinic care or integrated hospital care.So, first, my challenge was to work onthe anaesthetists. Physicians are a oneon-onecrowd, I have concluded, and yetI have been thinking that in the publicsystem, we are all of a similar training andsubscribe to a similar ethical code. Overthe last five years, the 20 anaesthetistshave all managed to switch from generalanaesthetic to their own particular versionof monitored anaesthetic, or conscioussedation, that those of us in the abortionclinics are familiar with in name. Only twoanaesthetists will not work with me, anda few nurses. Moving to D&E requiredsome gradual work, first to 16 weeks, andthen six months later to 20 weeks. I ledsome group sessions with the nurses in allareas—pre-operative assessment, operatingroom and recovery—having the sessionsboth before and after the change in practice.The nurses responded really well in groups,and seemed to find it helpful sharingstories. So, while no one is legally obligatedto explain or justify why a woman seeks anabortion, many health care workers find iteasier to care for women as a group whenthey know some of the inside stories likethe failed IUD, the fiancé who was foundcheating, the fifth pregnancy to a couplestruggling financially to raise four children,the holiday without the pill, the geneticanomaly…all the stories those of us in thefield know. Once they realize why I dowhat I do, they have been supportive to anyefforts to keep the wait list down.So, back to my space issue and wait list. Byincreasing my gestational limit and makingclinics up Island aware of our services,our volume was increasing. I realized thatI had to start offering more abortions in aclinic, needed bigger space, and neededaccreditation from both the NationalAbortion Federation and the College ofPhysicians and Surgeons. This meant alot of work creating manuals and seekinghelp from the clinics in BC and Alberta,and from colleagues at the hospital. I foundclinic space in a professional buildingwhere several family physicians, andalso two midwives worked—they weresupportive of choice and wanted to worktogether. However, one of the familyphysician groups which does high volumeobstetrics tried to block our purchase. Shecontacted all the other owners, told them Iwas an “abortionist” and that they shouldstop the sale. Fortunately, the pharmacist,the other groups of family physicians andthe specialists did not mind, and wereextremely welcoming when the sale wentthrough.Since then, I have been able to work on thatone extremely hostile relationship and shehas recently referred a few patients for postpartum IUDs and even one woman whohad a lethal anomaly needing D&E. Ouraccreditation with NAF went through in2004 and our College approval in 2006, sonow we are the only NAF approved clinicon Vancouver Island and a designatednon-hospital surgical facility. We can doabortions, but we are not yet funded,so women pay for the medications anddisposable equipment needed. The familyphysicians moved out a year ago due to ourneed for space, and the midwives stayed.The clinic now offers care for unplannedpregnancies, wanted pregnancies andwomen seeking contraceptive managementand well women examinations. Wehave a solid presence in the communityas a woman’s health clinic. We arenow the referral point for VancouverIsland for pregnancy terminations—thegynaecologists refer to me for the D&Es foranomalies and over half of the women arefrom outside Victoria. While I do three-43

quarters of our work with women seekingtermination, I also do many IUDs, manywell women assessments and endometrialbiopsies. Women coming to the clinic maybe seeing the midwives for care, me, or thenurse practitioner.There has never been any problem in thewaiting room, or reflected in the patientevaluations women fill out at follow up. Infact, many in the midwifery communityregularly refer to the Clinic for postpartum IUDs, for prolonged bleedingpost delivery, for management of fetaldemise, and for fetal anomalies. Even theanti-abortion members in that group haveacknowledged their clients receive goodcare and are pleased with their visit. Somewomen, therefore, come to the clinic andnever know that we do abortions. Themidwives share the view that the womanis central to all care and want to managenormal women’s health in the communityrather than in a tertiary care hospital. Theyappreciate that not all wanted pregnanciesresult in a live birth, and these women needcare as well.This unexpected alliance led me to thinkabout working with other disciplines inhealth care. I have trained midwives, nurses,members of the sexual assault team, andnurse practitioners in addition to the usualhost of medical students, residents and somephysicians. One of the nurse practitionerstudents suggested I apply for provincialfunding for a three year grant to involve aNurse Practitioner (NP) in a fee-for-servicepractice. I applied, argued my case for theclinic, and for women of Vancouver Island,and I now have a full time NP who cando counselling, education, follow up andwell women examinations. Her salary anda contribution to overhead is paid by theregional health authority. This was our firstbreakthrough in getting any funding.A few people have appeared to blockprogress toward outpatient care of abortion.The head of the blood bank was notsupportive of non-hospital management ofabortion. With some struggle and two yearsof negotiating, we are able to do our ownblood testing at the clinic. However, whilethe hospital recognizes this and supplies uswith WinRho, they will not accept our Rhtest results, so women needing a hospitalabortion must attend the lab in the hospitalat least two days prior to her abortion. Theblood issue is one shared by most clinics andthis delicate partnership with the local bloodbank is usually not worth tampering with.The current goal is to get total coverage forall the costs to women. Two years ago thehospital put out a Request for Proposals(RFP) for outsourcing surgical services. Itwas a general call for all types of surgeryand while abortion was not specificallymentioned, nor were D&Cs, we applied.After hearing nothing back for over a year,earlier this month we started fleshing outthe details of a contract.Looking back, my goal was to set up awoman’s health clinic that included fullyfunded abortion care. There have beenmany challenges but when I look at whythis has been a successful story, it is becauseit has been about establishing trust andworking across disciplines. I have workedhard to get to know the hospital staff, thehealth authority personal and invited theminto the clinic to see the work done andto convince them the clinic and hospitalpartnership benefits them in reducingwait lists, costs and increasing trainingopportunities and retention of excellentstaff.Here are some big picture questions foryou, although you may have some of yourown:• How do we evaluate if there really is aprovider shortage?• How do we address issues of ruralcare, both the quality of that care andthe maintenance of skills?44

• What is the relationship between birthcontrol clinics and abortion providers?• How can changes be brought about inhospital based care?• How can we lobby for funding—isinterdisciplinary partnership the wayof the future?45

Why Do I Do This? Being a ProviderGarson (Gary) Romalis MD, FRCSC, FACOG,Elizabeth Bagshaw Women’s Clinic, VancouverI am honored to be speaking today, andhonored to call Henry Morgentaler myfriend. I have been an abortion providersince 1972.Why do I do abortions, and why do Icontinue to do abortions, despite twomurder attempts? The first time I startedto think about abortion was in 1960, whenI was in second year medical school. I wasassigned the case of a young woman whohad died of a septic abortion. She hadaborted herself using slippery elm bark.I had never heard of slippery elm. A buddyand I went down to skid row and withouttoo much difficulty, purchased someslippery elm bark to use as a visual aid inour presentation. Slippery elm is not sterile,and frequently contains spores of thebacteria that cause gas gangrene. It is calledslippery elm because, when it gets wet, itfeels slippery. This makes it easier to slideslender pieces through the cervix wherethey absorb water, expand, dilate the cervix,produce infection, and induce abortion.The young woman in our case developedan overwhelming infection. At autopsyshe had multiple abscesses throughouther body, in her brain, lungs, liver, andabdomen. I have never forgotten that case.After I graduated from University ofBritish Columbia School of Medicine in1962, I went to Chicago, where I servedmy internship and Obstetrics/Gynecologyresidency at Cook County Hospital. At thattime, Cook County had about 3000 beds,and served a mainly indigent population. Ifyou were really sick, or really poor, or both,Cook County was where you went.The first month of my internship was spenton Ward 41, the septic obstetrics ward. Yes,it’s hard to believe now, but in those daysthey had one ward dedicated exclusively toseptic complications of pregnancy. About90 per cent of the patients were there withcomplications of septic abortion. The wardhad about 40 beds, in addition to extrabeds which lined the halls. Each day weadmitted between 10–30 septic abortionpatients.We had about one death a month,usually from septic shock associated withhemorrhage. I will never forget the 17-yearoldgirl lying on a stretcher with 6 feet ofsmall bowel protruding from her vagina. Shesurvived. I will never forget the jaundicedwoman in liver and kidney failure, in septicshock, with very severe anemia, whose lifewe were unable to save. Today, in Canadaand the U.S., septic shock from illegalabortion is virtually never seen—like SmallPox, it is a “disappeared disease”.I had originally been drawn to obstetricsand gynecology because I loved deliveringbabies. Abortion was illegal when I trained,so I did not learn how to do abortions inmy residency, although I had more thanmy share of experience looking after illegalabortion complications. In 1972, a coupleof years after the law on abortion wasliberalized, I began the practice of obstetricsand gynecology, and joined a three-mangroup in Vancouver.My practice partners and I believedstrongly that a woman should be ableto decide for herself if/when to have ababy. We were frequently asked to lookafter women who needed termination ofpregnancy. Although I had done virtuallyno terminations in my training, I soonlearned how. I also learned just how muchdemand there was for abortion services.46

Providing abortion services can be quitestressful. Usually an unplanned, unwantedpregnancy is the worst trouble the patienthas ever been in her entire life. I rememberone 18 year old patient who desperatelywanted an abortion, but felt she could notconfide in her mother, who was a nursein another Vancouver area hospital. Sheimpressed on me how important it washer termination remain a secret from herfamily. In those years, parental consentwas required if the patient was less than 19years old. I obtained the required secondopinion from a colleague, and performedan abortion on her.About two weeks later I received a phonecall from her mother. She asked me directly“Did you do an abortion on my daughter?”Visions of a legal suit passed through mymind as I tried to think of how to answerher question. I decided to answer directlyand truthfully. I answered with trepidation,“Yes, I did” and started to make mentalpreparations to call my lawyer. The motherreplied: “Thank you, Doctor. Thank Godthere are people like you around.”Like many of my colleagues, I had beenthe subject of anti-abortion picketing,particularly in the 1980’s. I did not likehaving my office and home picketed, ornails thrown into my driveway, but viewedthese picketers as a nuisance, exercisingtheir right of free speech. Being in Canada,I felt I did not have to worry about myphysical security.I had been a medical doctor for 32 yearswhen I was shot at 7:10 AM, November8, 1994. For over half my life, I had beenproviding obstetrical and gynecologicalcare, including abortions. It is still hardfor me to understand how someone couldthink I should be killed for helping womenget safe abortions. I had a very severe gunshot wound to my left thigh. My thighbone was fractured, large blood vesselssevered, and a large amount of my thighmuscles destroyed. I almost died severaltimes from blood loss and multiple othercomplications.After about two years of physical andemotional rehabilitation, with a greatdeal of support from my family and themedical community, I was able to resumework on a part time basis. I was no longerable to deliver babies or perform majorgynecological surgery. I had to take securitymeasures but I continued to work as agynecologist, including providing abortionservices. My life had changed but my viewson choice remained unchanged, and I wascontinuing to enjoy practicing medicine. Itold people that I was shot in the thigh, notin my sense of humor.Six years after the shooting, on July 11,2000, shortly after entering the clinic whereI had my private office, a young manapproached me. There was nothing unusualabout his appearance until he suddenlygot a vicious look on his face, stabbed mein the left flank area and then ran away.This could have been a lethal injury, butfortunately no vital organs were seriouslyinvolved, and after six days of hospitalobservation I was able to return home. Thephysical implications were minor, but thesecurity implications were major. After twomurder attempts, all my security advisorsconcurred that I was at increased risk foranother attack.My family and I had to have some seriousdiscussions about my future. The NationalAbortion Federation provided me witha very experienced personal securityconsultant. He moved into our home andlived with us for three days, talked with us,assessed my personality, visited the placesthat I worked in, and gave me securityadvice. In those three days he got to knowme well. After he finished his evaluation,when I was dropping him off at the airport,his departing words to me were “Gary,you have to go back to work”. About twomonths after the stabbing I returned tothe practice of medicine, but with added47

security measures. Since the year 2000, Ihave restricted my practice exclusively toabortion provision.These acts of terrorist violence haveaffected virtually every aspect of my andmy family’s life. Our lives have changedforever. I must live with security measuresthat I never dreamed about when I waslearning how to deliver babies. So why doI continue to perform abortions, and whatam I doing here? It’s a fair question.Let me tell you about an abortion patient Ilooked after recently. She was 18 years old,and 18–19 weeks pregnant. She came froma very strict, religious family. She was anonly daughter, and had several brothers.She was East Indian Hindu and her boyfriend was East Indian Muslim, whichdid not please her parents. She told me ifher parents found out she were pregnantshe would be disowned and kicked outof the family home. She also told me thather brothers would murder her boyfriend,and I believed her. About an hour after heroperation my nurse and I saw her and herboyfriend walking out of the clinic hand inhand, and I said to my nurse, “Look at that.We saved two lives today”.I love my work. I get enormous personaland professional satisfaction out of helpingpeople, and that includes providing safe,comfortable, abortions. The people I workwith are extraordinary, and we all feel thatwe are doing important work, making areal difference in peoples’ lives. I can takean anxious woman, who is in the biggesttrouble she has ever been in her life, andby performing a five-minute operation, incomfort and dignity, I can give her backher life.After an abortion operation patientsfrequently say “Thank You Doctor” butabortion is the only operation I know ofwhere they also sometimes say “Thank youfor what you do”. Before any questions,and you can ask me anything you like, Iwant to tell you one last story that I thinkepitomizes the satisfaction I get from myprivileged work.Some years ago I spoke to a class of UBCmedical students. As I left the classroom,a student followed me out. She said: “Dr.Romalis, you won’t remember me, butyou did an abortion on me in 1992. I amin second year med school now and if itweren’t for you, I wouldn’t be here now.”48

The New Generation: Abortion in Medical SchoolsPat Smith MD, Grand River Hospital, Kitchener, NAF, NAF CanadaThank you for asking me to talk at thisvery important honouring of the SupremeCourt Morgentaler Decision. I have nothad the opportunity to hear lawyers inCanada speak about this decision which sofundamentally changed the lives and healthof Canadian women and I have found thecontent to be very interesting. It is also apleasure for me to participate in an occasionwhich acknowledges those men and womenwho worked so hard to make it possiblefor this case to go forward and of course, inparticular, Dr. Morgentaler. Dr. Morgentaleris a friend and mentor and someone whohas influenced my career many times and inmany ways.My task is to talk about the future ofabortion care in Canada, in particular asit relates to future providers. Educationand training for new abortion providersis fundamental to ensuring access tohigh quality care. I am going to restrictmy comments to physician’s educationtoday because of the necessity of time andbecause I am not qualified to speak aboutother disciplines but I do want to make itclear that I know very well that physiciansare only one member of the team of folks ittakes to provide high quality care.Provider Training: Past & PresentThe current generation of abortionproviders came to their work verydifferently than new providers today. Thestory of my own training parallels that ofmany other providers I have talked with. Icame to medical school after training andworking as a social worker. I was a feministwho had worked for many years in thepro-choice community. I had friends whohad had illegal abortions. I had experiencedfirst hand the ordeal of going through atherapeutic abortion committee to obtainan abortion in the hospital. While anundergraduate at McMaster University inHamilton there was no exposure to abortioncare or indeed to women faced with anunplanned and unwanted pregnancy.Women’s health as a discipline was not yetborn.As a resident in Family Medicine, Iapproached the Department of Obstetricsand Gynecology to organize an elective thatwould train me to do abortions. I was flatlyturned down and clearly told that abortionswere done by gynecologists, not familydoctors. Toward the end of my residencyprogram, I was recruited to do training atthe Morgentaler Clinic in Toronto. It waspart of a public relations strategy to informthe public and politicians that no matterwhat they did to Dr. Morgentaler, therewere physicians who were training to takehis place.A small group of us committed to trainand then publicly indicate our willingnessto provide care. I was very pregnant at thetime and the protestors at the clinic werevicious toward me. It was not easy to evenenter the clinic. Although our group metwith legal counsel and were reassured itwas unlikely there would be legal actionagainst us or if we were arrested it wasunlikely we would spend time in jail, Icould not contemplate having my baby inprison or leaving my baby behind were Iarrested. I was not made of the same stuffas Dr. Morgentaler and I dropped out atthat time.A few years later, I was practicing as afamily doctor. Another family physicianwho I had been a resident with recruitedme to train to do abortions urging me to putmy “money where my mouth was” so to49

speak. I began training at Choice in HealthClinic and from there went on eventuallyto narrow my clinical work entirely toabortion provision. Most of my colleaguestoday began in the same way, either startingbecause of their own political convictionsor at the urging of friends and colleaguesbecause of the need for coverage in bothclinic and hospital programs.An important first point is for you to realizehow different this path to clinical practiceis in comparison to other activities anddisciplines in medicine. Most students donot enter medical school knowing the areaof work they will ultimately settle in to.They come to their decisions via exposureto study, practice and/or practitioners whoinspire or interest them. It is completelypossible, even now, to complete anundergraduate and residency programwithout any exposure to abortion care. It iscompletely possible a student might neverbe prompted to think about including theprovision of abortion services to womenas an option. This leaves a huge task forthose of us hoping to ensure abortions willremain an option for women in the futureor hope to someday retire ourselves.In addition, one of the impacts of theMorgentaler decision that led to relativelygood access to abortion services throughoutmost of Canada is that access to abortionis no longer the grass roots issue it oncewas among feminists and the generalpublic. There is not the same social justicecommunity activity that was necessary tomobilize people to demand a change forwomen in Canada that was there in the 70sand 80s. Students may not be coming totheir medical school training with the socialjustice agenda on this issue many of us hadin the past.There are other reasons to include abortioneducation in undergraduate programs.Contraception, unplanned and unwantedpregnancies and the repercussions ofunwanted children being born are allsignificant public health issues. No matterif you choose to provide abortions ornot, most physicians in whatever areaof practice they end up in will come incontact with these issues and must betrained to understand and treat patientsappropriately. In terms of global health,lack of access to safe, legal and timelyabortions has a very negative impacton the health of women, families andcommunities. These are very importantissues for new physicians to understandand perhaps address.Influences on CurriculumWhether or not an area of study is includedin undergraduate or residency programsis determined by several factors. At theundergraduate level, licensing bodies,such as the Medical Council of Canadainfluence curriculum by including specifictopics in their certification exams. TheMedical Council of Canada produces a setof objectives to aid academic programsand students to understand the breadthand depth of the information that will beassessed in the licensing exams.Abortion is listed only in the section on thelegal and ethical aspects of practice.The CLEO objectives do list abortion as anexample of one of the “controversial andevolving ethical issues in practice” andsets as an objective that a student shouldbe able to speak in a non-judgmental way,understand the rights of patients andensure they receive full access to relevantand necessary information. However,abortion is only one of a list of severalcontroversial topics like euthanasia andis not listed in any other area of theirobjectives related to licensure. It is alsointeresting to note abortion is included in alist that also includes euthanasia, physicianassisted suicide, stem cell research, etc.There is no question that abortion in thiscountry is controversial but it is not illegal50

as these other activities are. The messagethis gives is just another reinforcement thatabortion education is marginalized andwould therefore not be appropriate in thestandard curriculum. Medical Studentsfor Choice did a curriculum mappingsurvey which confirmed a complete lack ofconsistency across programs for abortioneducation and training.The Royal College of Physicians andSurgeons of Canada is responsible foroverseeing medical education for specialistsin Canada, including Obstetrics andGynecology. Their website indicates allObstetrician and Gynecologists musthave an extensive level of knowledge ofPregnancy Termination. Having extensiveknowledge is described as being able to:• Investigate, diagnose and/or manage(including counseling and/or referralfor grief support):– Termination of pregnancy in thefirst trimester– Termination of pregnancy in thesecond trimesterThe only technical skill required thoughis for “dilation and curettage, diagnostic”.A graduating Obstetrician/Gynecologistmust have knowledge about pregnancytermination in both the first and secondtrimester but is not required to be able to doone.The College of Family Physicians ofCanada does not address the issue ofpregnancy termination or the managementof unplanned and unwanted pregnancy. Itonly speaks to being able to establish the“desirability” of the pregnancy.Trends in Student Exposureto Abortion PracticeIn addition to the policies and requirementsof our professional and licensing bodies,there are other factors that influence whetheror not medical students are exposed toabortion content. I am going to highlighta couple of the trends that may have anegative influence and then talk about someof the positive things that are happening.Changing practice patterns indicate thereis an increase in the number of abortionsbeing done in clinics and fewer hospitalsprovide any abortion services. Most ofundergraduate medical education is donein hospitals and this changing practicepattern does negatively impact on exposure.There is also a decrease in the number ofgynecologists doing abortions and thereforeless exposure to residents during theirnormal training rotations.There have been several studies thatindicate students exposed to abortionpractice and education are more likely tobecome providers. It is of great concern thatthere is less and less exposure of practiceto students and residents and again, this isvery different than other areas of specialty.There are other factors that influencewhether or not a particular topic is coveredin medical school. Interests of faculty bothin clinical work and research may be oneof the most significant determinants ofwhether or not any particular group ofstudents are exposed to abortion content.In Canada, there have not been manyacademic physicians interested in orpracticing abortion care. There has beenvery little research on abortion care donein academic settings. Because of this ourhospital rounds, professional journalsand academic meetings, where practicingphysicians, residents and medical studentslearn new and quality practice standards,have not had the theoretical content thatwould also expose and encourage otherscholarly work. This is somewhat differentthan in the United States in recent yearswhere there has been increasing researchand publication of research data. Thereare many well recognized and respectedacademic physicians involved in residencyprograms and undergraduate training.51

There has also been the establishment ofpost graduate training programs for familyplanning that encourage and supportacademic work in this area.However, it is not all bleak. There arephysicians working very hard in theirclinical situations to increase curriculumcontent and opportunities for training.There are community and hospital-basedphysicians who lecture and tutor inundergraduate programs and who includeabortion content when they have theopportunity. There are doctors who workwith Medical Students for Choice andwho offer workshops and lectures outsidethe standard curriculum that augmentsreproductive health content.There are two initiatives in Toronto rightnow that are very exciting. The first is aday long workshop being offered jointlybetween the Departments of FamilyMedicine and Obstetrics and Gynecologyaimed at residents in both programs. It isintended to inform residents so they canprovide better pre and post abortion careand to perhaps identify some students whomight train to become providers. It is hopedthis workshop will eventually be offeredto a more multidisciplinary group and topractitioners outside of the Toronto system.There is also an official elective experienceoffered to Gynecology residents thatwill provide a great deal of exposure toabortion services, again to improve careby consultants and to perhaps interestfuture providers. These initiatives providegood examples of what is possible whenyou have academic physicians involvedin providing care, teaching and doingresearch. I know there are other physiciansacross the country also involved in thesekinds of initiatives. Many clinics haverelationships with medical schools andresidency programs and accept students toobserve and train.We also have physicians who are workingfrom within professional organizationstrying to influence specific committees soour issues are brought to the attention ofpeople in a position to change expectations.Dr. Trouton is working closely with theCollege of Family Physicians and others ofus are working with the SOGC, the CMAand others.Medical Students for Choice is doing anoutstanding job, trying to influence thingsfrom the bottom up. MSFC began in theU.S. as part of an effort to address theprovider shortage. The group is now activeacross the US and is very active in Canada.Of the 17 medical schools in Canada, 11have active MSFC chapters. They work atthe grass roots level organizing lecturesand other events to raise both the politicalawareness and medical knowledgeof students. Through their externshipprogram they have 125 host facilities thatprovide opportunities for students to meetand work with providers, increasing thatimportant exposure I mentioned earlier.They also hold a national conference eachyear bringing together many well knownproviders to lecture and inspire students topursue careers in abortion care whateverspecialty they chose. It is always fun tospend time with these incredibly motivatedand interesting young people.The problem with many of these effortsis that they are not imbedded in thecurriculum. They are reliant on the time,interest and availability of individualsoften donating their time. There is notsystematic integration into medicalschool or residency curriculum and norequirements this content be covered forlicensure or credentialing. I just wantto make a comparison here with otherareas of medicine. It is inconceivable anyundergraduate medical program wouldrely on the individual interests of facultyto be sure respirology is covered in theircurriculum. They would always havefaculty who are respirologists and wouldalways include the material necessary to52

understand and deal with lung problems. Ifa faculty person left who had this expertise,there is no question it would be a part ofthe requirements for a new faculty personbeing recruited. Reproductive health issuesare treated very differently. There is nopriority set on having faculty in FamilyMedicine or Gynecology who can providescholarly research and teaching on thisimportant topic.I am going to close with what I see shouldbe the goal for teaching abortion care inmedical schools and residency programs.Standard curriculum should include:• Pregnancy options counseling• Contraception• Descriptions of the different methodsand procedures of medical andsurgical abortions• Pre and post medical and surgicalmanagement of patients choosingabortion• Abortion from the perspective ofhuman rights• Global issues related to unsafeabortion and its impact on women’shealthAbortion training should include:• Exposure to clinical settings wherewomen facing unplanned andunwanted pregnancies should bemandatory• Opportunities to rotate throughand train to do abortions should beroutinely offered to residents• Appropriate and standardizedrelationships should be establishedbetween clinical settings that provideabortions and training programs• Some emphasis should be placedon recruiting faculty who have bothinterest and expertise in this importantpart of comprehensive reproductivehealth education53

The Role of Media in the Abortion DebateHeather Mallick, Journalist and AuthorAs a feminist mainstream journalist, I havea lonely life. Every now and then I havelunch with Michele Landsberg, who isretired from writing, and she tells me tocheer up, things can only get better.I particularly appreciate that the symposiumtoday has been practical as well astheoretical, because journalism is very mucha “let’s get down to brass tacks” field. I haveto win the attention of the reader. Beingreasonable or logical isn’t enough. Although,as you’ll have noticed from media coverageof women’s rights in recent years, beingreasonable or logical isn’t even required.Two things worry me about mediacoverage of abortion rights today. The firstis complacency; the second is what willemerge from an increasing tide of misogynyin public life. One thing I always tellaudiences: Never underestimate how muchwomen are hated—by men and women.Media coverage of abortion rights scarcelyexists in Canada. Canadians in generalthink abortion is a personal matter and aretherefore complacent about abortion rights,which is a nice state to be in although it isn’tterribly helpful if you’re poor and you’repregnant. And since media coverage needsa news angle, it’s hard to cover a slide inaccessibility in certain parts of the country.You try getting the word “accessibility” intoa headline.The Ottawa Citizen ran a marvelous storyrecently on how hard it is to get an abortionin the Ottawa area. And that’s the geniusof local coverage. There’s your angle,especially in a city that runs the country.Politicians’ daughters can’t get an abortion?In Ottawa, where you’d think things wouldbe more civilized? Now that’s interesting.But the fact that women in New Brunswickcan scarcely get a hospital abortion, muchless have their abortion in a Morgentalerclinic in Fredericton covered by Medicare?That’s a great local story and the subject ofan important lawsuit, but New Brunswicknewspapers are owned by the Irvings.There is a media silence. We had a greatevent sponsored by the University of NewBrunswick, Faculty of Law, in April lastyear, with an overflow audience, and agreat legal panel. The paper refused tocover it.But there’s a side issue. Media in Canadaare in a terrible state. Media companiesare, I think, the worst-managed sectorof the economy and the recession willmake this more apparent. This is a timeof fragmentation. The consequences willbe: newspapers will disappear, moreonline sites will spring up, less moneywill be spent on TV newsrooms, reportingwill be shared more across the country,there will be fewer journalists, they willbe a combination of less-trained andovertrained, which is not good for anyone,and so on.One of the side effects of this is thatnewsrooms tend not to attract youngpeople, especially bright young peoplewho will go elsewhere for a career thatwill provide a solid future. And this is adisaster for all Canadians. But it leads toa particular problem when it comes tocovering abortion rights. The older peoplewho run newsrooms are decades past thebaby-making years. They don’t care aboutthe consequences to women of the sexthey’re not having.I think the fact that newsrooms are runmainly by males, especially the middleagedand elderly, is responsible for thefreak show that is coverage of femalesexuality. This might be dismissed as a54

matter of men being controlling. But I reallydo wonder why most female columnists inCanada tend to be single and childless. Isthis by choice or is there no way to have afamily life? Male columnists manage it. Andwhy are women columnists so often reallyhard-core woman-haters? I may be wrong:perhaps the pool of women columnists inCanada is too small to draw a conclusion.But when it comes to editors and managers,matters of sex and procreation are notgoing to be covered in a normal, sane wayby people who, frankly, are probably notgetting any. Or much. So there’s a weirdprurience to these stories. There was afront-page story in the National Post in2006 on why anti-abortionists are gettingnowhere. The headline wondered whyCanadians wouldn’t discuss the A-word.Maybe because they’re busy talking aboutnew technologies like the C-word, cloning?It failed to answer that question. But it’s alsofunny when neo-con newspapers wonderout loud why readers don’t care about thestuff they care about. Is it any surprise thatnewspapers are said to be dying in theircurrent form? Readers are smarter thanjournalists. You think otherwise at yourperil.Now we come to the demonizing ofyoung women. Maclean’s, which isnot a newsmagazine—more of a weirdunderdeveloped-guy cult plus a weirdelderly lady named Amiel—has the latestin a series of covers on the sexuality of girlsand young women. Why do our daughtersdress like skanks? Why is teen pregnancycool (or “hot” to use that all-purposemedia word)? And that’s the approachthat neoconservative men would take tothe issue of abortion rights, that the issuecan be reduced to “sex with hot babes.”When in fact abortion is just as much aboutprivacy and patriarchy and poverty andsheer human desperation.So lascivious frustrated male editors mightwell use abortion and teen pregnancymovies as an excuse to expound on youngfemales thinking they can control their ownbodies, their gorgeous, glowing, hot youngbodies. Anything to get a babe on the cover.Not a baby, a babe.My first point was that Canadians arecomplacent about abortion rights and thisis perpetuated by the media. Then I saidthat women’s sexual rights are reported onin a distorted way because of the massivechanges in modern journalism and the kindof people who run newsrooms.But my second point concerns forcesoutside Canada. Yes, our first problem iswhat we would do if Stephen Harper wereto be elected with a majority government.All bets are off, and we know that.But what happens in the United Statesmatters a great deal as well, largely becausethey have a lock on our culture and ourmedia. Young people watch American TVshows and American movies; their culturalmores seep in. I’m always astonished whenwomen talk to me about The Wire andnever mention that it is a womanless show.In other words, just like real life. That’sseepage, when you fail to notice the erasureof females from the landscape.Liberal American websites like Saloncriticize a Canadian university campuswhen students refuse to finance an antiabortiongroup. What about free speech, thefeminist Americans say. But on a Canadiancampus, the rights of women are not up fordebate.I was going to entertain you all with avery funny story about American supportgroups for people who allegedly sufferfrom post-traumatic stress disorder fromtheir relatives’ abortions. Broken parents,grandparents, weeping boyfriends whogo on to kill abortion providers and so on.But then I realized that it’s an Americanstory. Why should I publicize this lunacyin Canada? The transfer of reporting onAmerican extremism, amusing as it is,55

makes us more believing and tolerant oflunacy here, and that’s a terrible danger.Anyway, the big problem would be theU.S. Supreme Court overturning Roe v.Wade, which I think they may well do.And the second problem is how any of thecandidates would react, once in office, tothat. I think we know they would all reactwith cowardice.I think if abortion rights disappear in theU.S., there will be a resultant anti-choicepressure here transmitted via the media.There are very few feminists in the media.I’m hoping American laws will be ignored,the way Canadians fly off to Cuba for theirwinter vacation, but I’m not confident.On the other hand, depending on howAmerican states react, it may well be thatAmerican women will cross the Canadianborder for their abortions. And we willhave to support them to the same degreewe have failed to support American warresisters,some of whom are women.I’d like to make a request. When you seesomething in the media that damageswomen’s rights, when you see a reportergo out on a limb for the rights of, say, apoor woman seeking an abortion, will yousend an email or write a letter to the editorspeaking up? The anti-abortion people usethis tactic. Can we get up to speed here?Can someone publicly defend abortionrights, please?It’s all very well to call Canadianscomplacent, but feminists are complacenttoo. It’s all very well to support each otherin academia and in specialist publicationsand in guarded online forums, but themainstream needs to hear from you. AndDawn Fowler, whose group wants to helppoor women get the abortions they want,needs a cheque from you.56

The Politics of Abortion: The Work of the PoliticianHon. Carolyn Bennett MD, MP, St. Paul’s, ONThe following in an overview of the Power Pointpresentation given by Hon. Carolyn Bennett.Life before Politics• Advocacy• Public position• Profession• Consistency/values/principles• “Immunization”Personal Experience Pre-Politics• High school in the 60’s• Medical school– Bracebridge, Gravenhurst elective…1st patient needing an abortionwas a 14 year old daughter of aprostitute serving her mother’sclients…seemed clear to me sheshould return as soon as possible toGrade 9– OB/GYN rotation– Marion Powell• Clerkship elective in Barbados…septicvery sick patients result of criminalabortions• Family practice residency• Locums in Bracebridge, Midland• Practice in Toronto’s Annex area in1977– Read Our Bodies, Ourselves (underthe arms of ‘every’ patient)• Women’s College Hospital– Bay Centre for Birth Control– Impressive work on how womendecideLife as a Family DoctorI had the best patients in the world. Theywere:• Empowered patients• Effective Advocates• Engaged CitizensBig ‘P’ Politics• Ran provincially in ’95 and lost….– Platform of same sex benefits,adoption• 1996…Provincial Liberal leadershipcampaign…– 7/8 candidates practicing Catholics– “Women have been trying toterminate pregnancies for as longas they have been getting pregnant.We have to ensure they don’t diedoing it.”• 1997 Federal Election…– “we’ll have to agree to disagree”• Vigilance…ongoing• Private members’ business• 2002: Bill C-13, Assisted HumanReproduction Act … proposedamendments– Criminalize vs. Regulate• 2005 Dispute resolution commencedon New Brunswick57

Historical Listing of Anti-AbortionMotions• March 14, 1996—Reform MP GarryBreitkreuz (Yorkton-Melville,Saskatchewan) calls for nationalreferendum on tax-funding forabortions.• October 29, 1996—Reform leaderPreston Manning calls for nationalreferendum to place a ban on abortionin the Constitution.• March 1997—Reform MP KeithMartin introduces private memberbill to charge pregnant women whoabuse alcohol, drugs etc. with criminalendangerment of fetus.• November 20, 1997—Breitkreuzreintroduces private member’s motionM-268 calling for a binding nationalreferendum on government fundingfor “medically unnecessary” abortions.• April 18, 2002—Breitkreuz introducesmotion M-392 asking the StandingCommittee on Justice and HumanRights to examine the currentdefinition of “human being” in theCriminal Code to see if the law needsto be amended to provide protectionto fetuses and to designate a fetus/embryo as a human being.• October 30, 2002—MP MauriceVellacott (Saskatoon-Wanuskewin)reintroduces his conscience clauselegislation for debate, for health careworkers who refuse to take part inprocedures such as abortion• September 30, 2003—Breitkreuzintroduces motion M-83, asking thejustice committee to examine whetherabortions are medically necessary asdefined by the Canada Health Act– Breitkreuz got over 10,000Canadians to sign petitionssupporting this motion, which wasdefeated Oct. 2.• October 23, 2003—Breitkreuzintroduces motion M-482 askingParliament for a Woman’s Right toKnow Act, which would “guaranteewomen are fully informed of all therisks before deciding to abort theirbaby”.• March 11, 2004—Breitkreuz introducesmotion M-560 calling on thegovernment to create a new criminalcode offence for the “murder of anunborn child” when a third partymurders a pregnant woman.• June 2006—Paul Steckle introducesBill C-338, a private members billthat, if passed into law, would makeabortion illegal after the 20th week ofpregnancy.• November 21, 2007 —MP Ken Eppintroduces Unborn Victims of Crimelegislation.Other History• May 1998—First Annual March forLife on Parliament Hill organized byCampaign Life Coalition, Canada’snational anti-choice group.• February 24, 2002—During anationally televised leadership debate,all four Alliance leadership candidatestell potential voters they would notlead a push to have abortion bannedor delisted as a surgical procedurecovered by Medicare.• May 25, 2002—MP Jason Kenneyspeaks at the Alberta Pro-LifeConference in Edmonton and saysmost abortions are not medicallynecessary and should not be funded.• November 26, 2002—Anti-choiceMPs Tom Wappel (Liberal), ElsieWayne (Conservative), and MauriceVellacott (Alliance) release an openletter questioning Dr. Morgentaler’smotivations and accusing him of58

hiding lucrative profits from hisabortion clinics.• January 2003—Three anti-choice MP’sissue a press release criticizing the ideaof awarding Dr. Henry Morgentalerthe Order of Canada. Paul Steckle(Liberal), Maurice Vellacott (Alliance),and Elsie Wayne (Conservative) claimthat Morgentaler’s “legacy” is one ofharming women.• May 13, 2004—20 MPs, mostlyConservatives, attend the annualMarch for Life in Ottawa, organizedby Campaign Life Coalition, Canada’snational anti-choice group.• May 30, 2004—Conservative RobMerrifield says in an interview withthe Globe and Mail that womenconsidering abortion should berequired to seek counselling first.• June 2004—Conservative CherylGallant draws a parallel betweenabortion and the beheading of anAmerican man working in Iraq.• Sept. 8, 2004—Conservative Vic Toewstold the National Pro-Life Conference,in a speech entitled “Abuse of theCharter by the Supreme Court,” thatthe right to abortion is a result of“activist judges” abusing the Charterof Rights and Freedoms to developand implement their own social policy.• March 2005—The Conservative Partyadopts a resolution at their convention(by a vote of 55% to 45%) that “aConservative government will notinitiate or support any legislation toregulate abortion.”• May 2006—8th Annual March for Lifeon Parliament Hill, over 21 MPs inattendance.– Former Liberal MP Pat O’Brien wasawarded the Joseph P. Borowskiaward for his “heroism in battlingin Parliament for life and family.”• May 2007—9th annual March for Lifeon Parliament Hill. MPs Paul Steckleand Maurice Vellacott, co-chairs of theParliamentary pro-life caucus, held anews conference preceding the march.Summary of “Morality” Bills beingDebated in the House/SenateWe have just updated our “GETINFORMED” page with a concise listing ofmany the bills currently being debated inthe House or Senate that would fall underthe category of ‘moral’ issues. These billstouch on drugs, sexual offenses, the rightsof wanted children, internet pornographyand more. We encourage you to take a scanthrough and e-mail/call your MP to let themknow what you think about these bills,especially the ones that are currently beingdebated.Support the Protection ofPregnant Women and their BabiesOn Nov. 21st, 2007, the House of Commonsbegan the process of looking at a bill byKen Epp that, if it is passed, will make it acriminal offense to harm a ‘wanted’ childin the womb (e.g. if violence against themother hurts the child). Mr. Epp has posteda poll on his website and is asking for theopinion of Canadians. If you are in supportof protecting pregnant women and theirchildren, please click on the image to theleft and go to Mr. Epp’s site to vote “Yes!.”Pressure ??Calls to the constituency office this weekabout my participation in this event:• “How can you properly representthe people of St. Paul’s if you areprepared to participate in the abortionevent when 70% of the riding opposeabortion”.59

• In May 2004, Life Canada (anational association of municipaland provincial educational pro-lifegroups) ran an ad in the National Postthat listed the number of tax-fundedabortions done per year in Canada. Anote at the bottom invited readers tosend letters of protest to politicians.• Type in www.carolynbennett.ca to getto her actual website.• But www.carolynbennett.net givesyou LifeSiteNews.com—an anti-choicewebsite.What do Canadians Think?“Do you think abortions should belegal under any circumstances, onlycertain circumstances, or illegal in allcircumstances?” According to polls:YearLegalUnder Any CircumstancesOnly UnderCertain Circumstances1975 23% 60% 16%1978 16% 69% 14%1983 23% 59% 17%1988 25% 59% 15%1993 31% 56% 10%1998 30% 55% 12%2001 37% 51% 9%Illegalin All CircumstancesAmerican and Canadian ViewsAccording to the 2002 Gallup poll:• Abortion is morally acceptable– US 38%– Canada 57%• But how much does public opinionmatter?• The Canadian Conscience:Grenville and Canseco, Angus Reidpollsters found:– Thoughtful Conservative—33%– Laissez Faire— 25%_ Accepting Middle of theRoad —18%– Strict Moralist—12%– Uncertain Relativist—12%The Role of the ElectedRepresentativeVoting on Abortion in the House of Commons:A Test for Legislator Shirking. University ofRegina, Professor Neil Longley.• Examines the degree to whichlegislators’ votes on a 1988parliamentary vote on abortionreflected constituent preferences,versus the degree to which the votesreflected the personal ideologicalpreferences of the legislatorsthemselves.• It finds that MP voting on this issuedid not appear to be influencedby the preferences of constituents,but was significantly influenced bythe personal ideologies of the MPsthemselves.60

Trustees versus DelegatesLongley says legislators are “trustees”not “delegates”. Let’s examine the issue of“trustees” versus “delegates”• Under the delegate view, the legislatoracts simply as the “voice” of his or herconstituents.• Legislators are not to use their owndiscretion to make decisions. Theyare expected to represent constituentinterests on all issues at all times.• Standard to legislative voting (e.g.Legislators should cast their votesstrictly in accordance with thepreferences of their constituents).• Under the trustee view:– Constituents grant legislatorsrelatively wide latitude to makedecisions as legislators see fit.– This is justified on a number ofgrounds:– Legislators should be “leaders”and not “followers,”– Legislators must also servenational interests, and notsimply the interests of their ownconstituency.– No legislator should ever beforced to vote against his or herconscience on ethical and moralmatters• When Professor Longley discoveredthat MPs voting on the abortion issuedid not appear to be influenced bythe preferences of constituents, hedescribed it as evidence of “shirking”behaviour by legislators.– He’s wrong.• As elected officials, MPs are obligatedto uphold the Charter of Rights andFreedoms and protect the equal rightsof minorities. Human rights are notsubject to majority rule in a democracy.Role of an Elected Representative• Human rights are not subject tomajority rule in a democracy.• Should an MP represent theirconstituent’s views or their ownpersonal views on issues ascontentious as abortion?– The true role of the government andits MPs is to respect and supportwomen’s constitutional rightsby ensuring abortion access andfunding.– Politicians have no “right tochoose”—that is the sole domain ofwomen.The “Responsible” ElectedRepresentative:• ‘Representative democracy’• How do we know?• No $$$$ for polling• Town halls, tabulating phone calls,emails• Still a guess…– Was the question genuine?– Was the context explained?• The seduction of direct democracy…Miles to Go• Freedom, equality, safety• Dignity• Bias-free framework: Mary AnneBurke, Margrit Eichler; Global Forumfor Health Research• Research, trusted dataEqual Access?• Over half of abortions in Canada arestill done in hospitals because clinicsonly exist in the larger cities.61

• 80% of hospitals don’t even performabortions.• Hospitals have:– Long waiting lists– Requirements for doctor referrals– Quotas or gestational limits– Anti-abortion staff who misinformor judge patients seeking abortions.• It’s harder for rural women to accessabortion services than it is for citywomen.– Many women must travel longdistances to find an abortionprovider.• Access is also poor in moreconservative areas, especially theAtlantic provinces.Anti-Choice MPs in the House of Commons Before and After 2006 ElectionBefore ElectionAfter ElectionTotal Anti-Choice MPs 93 of 306 MPs (30%) 100 of 308 MPs (32%)Anti-choice MPs are deemed to be publiclyanti-choice if they have an anti-choicevoting record, or have publicly spoken ator attended events organized by anti-choicegroups, or have publicly stated they are“pro-life,” or would support abortion onlyin limited circumstances.For example, MP David Sweet was thePresident of Promise Keepers Canada(1998–2004). He stated: “Men are naturalinfluencers, whether we like it or not.There’s a particular reason why Jesuscalled men only. It’s not that women aren’tco-participators. It’s because Jesus knewwomen would naturally follow”. (ChristianWeek, November 27th 2001).Hon. Carolyn Bennett closed herpresentation with this quote:“Physical and mental energy come frombeing in control of your life, having realchoices, and being involved with othersto find ways of organizing change forthe better.”Barbara Rogers62

On Being a Legal Academic in a Politically Charged ContextJocelyn Downie, Faculty of Law, Dalhousie UniversityThanks are due to Sanda Rodgers for herinitial partnership in the editorial andresponses discussed in this piece, for hercomments on earlier versions of this piece,and for her unwavering commitment toadvancing women’s equality through herwork as a legal academic in this highlypolitically-charged context.The StoryA few years ago, an opportunity camealong to write a guest editorial in theCanadian Medical Association Journal.Reflecting on possible topics, I realizedif I had to pick one message I wanted toget out to practicing physicians (apartfrom the need to protect our Canadianhealth care system—a topic on which therehad just been an editorial in the CMAJ),it was on access to abortion. I had thedistinct pleasure of writing this editorialwith Sanda Rodgers. We described thesevere problems with respect to access toabortion in Canada (particularly for themost vulnerable women) and we arguedthat “physicians are not required toperform abortions (except in emergencycircumstances); however, regardless oftheir personal beliefs, they should notprevent women from accessing abortion.Health care professionals who withholda diagnosis, fail to provide appropriatereferrals, delay access, misdirect women orprovide punitive treatment are committingmalpractice and risk lawsuits anddisciplinary proceedings.” 47 We also arguedthat “physicians should work to ensurethat abortion is available to all women whoseek it, that the promise of reproductive47 Sanda Rodgers and Jocelyn Downie, guesteditorial, “Abortion: ensuring access” (July 4,2006) 175(1) CMAJ 9.choice is fulfilled and that initiatives tocompromise access are resisted.” 48 Theeditorial was published on July 4, 2006. Wewere immediately targeted on right to lifewebsites (the very day the editorial was putup on the CMAJ website, negative noticesabout it, and us, went up on various rightto life websites). This reaction was not asurprise. But what came next was.Where was Editorial Independence?In February 2007 (more than six monthsafter the editorial was first published),the CMAJ printed a number of letters tothe editor submitted in response to oureditorial as well as our response to thoseletters. In our response we argued that,given the Canadian Medical AssociationCode of Ethics together with the Policy onInduced Abortion, “all physicians are underan obligation to refer” and “[the policy]does not allow a right of conscientiousobjection in relation to referrals.” 49 Giventhe realities of our health care system (e.g.,the severe shortage of family physicians),without a referral, women face barriersand delays in access to abortion services.Failing to provide a referral thus violatesthe CMA policy provisions that “the patientshould be provided with the option offull and immediate counselling servicesin the event of unwanted pregnancy” 50and “there should be no delay in theprovision of abortion services.” 51 Ourresponse prompted an e-letter from JeffBlackmer, the Executive Director of theOffice of Ethics for the CMA in which he48 Ibid49 Sanda Rodgers and Jocelyn Downie, letter,“Access to abortion” (February 13, 2007) 176(4)CMAJ 494.50 Ibid51 Ibid63

claimed we were mistaken in our claimthat physicians have an obligation to refer.This letter was posted on the CMAJ websitesix days after our response to the first setof letters was published. 52 On April 24,2007, another letter from Jeff Blackmerwas published in the CMAJ. 53 This letterwas headed “Clarification of the CMA’sposition concerning induced abortion.”Blackmer offered no argument in supportof his interpretation of the CMA policy.Nor did he indicate any process wasfollowed within the CMA to arrive at thatinterpretation of the organization’s policy.Merely holding the position of ExecutiveDirector of the Office of Ethics wouldnot make one the final authority on themeaning of an organizational policy.We were not given an opportunityto respond to Blackmer’s April letter.Furthermore, his letter was accompaniedby an “Editor’s note” which stated “Wereceived a large number of letters inresponse to the editorial by Rodgers andDownie, with particular regard to theCMA’s policy on induced abortion. Weasked the CMA to assist our readers byclarifying their position using a case-basedexample, which they have provided here.We will not publish any further letterson this topic, unless they present newinformation or state a new position on thismatter.” 54 In other words, they shut downan important policy debate and, contraryto convention in many academic journals(wherein authors are given an opportunityto respond to letters published in responseto their articles), gave the CMA the “lastword.” It was particularly surprisingthey did this in this way given that, notless than a year earlier, the CMAJ hadbeen embroiled in a serious controversy52 Jeff Blackmer, e-letter, “Clarification of CMAPolicy” (February 19, 2007) CMAJ.53 Jeff Blackmer, letter, “Clarification of the CMA’sposition concerning induced abortion” (April 24,2007) 176(9) CMAJ 1310.54 “Editor’s Note” to ibid.with respect to its editorial independencefrom the CMA (and its subsidiary CMAHoldings Inc.). 55 Following a review ofthe controversy, the CMAJ GovernanceReview Panel (chaired by Dick Pound)recommended that “any responsesubmitted from the CMA intended forpublication in the CMAJ should gothrough the same process as all third-partysubmissions to the CMAJ.” 56 The CMAofficially accepted all recommendationsmade in the report and yet here the CMAJprovided a staff member of the CMA theopportunity to pronounce unchallenged onthe interpretation of policy.Where were Journalistic Standards?On May 5, 2007, the National Post ran astory by Anne Marie Owens with theheadline “The a word. How did abortion,that most contentious of issues, becomeone that is simply not discussed publicly?”In this article, Owens stated “In theiressay ‘Abortion: Ensuring Access’, lawprofessors Sanda Rodgers and JocelynDownie misstated what turns out to bea key aspect of the Canadian MedicalAssociation’s moral compromise on theissue: the physicians’ conscientious objectorstatus and the referral of patients desiringan abortion.” 57 Although she clearly spokewith Jeff Blackmer, Ms Owens never55 The CMAJ Editor-in-Chief and senior deputyeditor were fired and most of the CMAJ’s editorialboard resigned in protest over the firing andconcerns about editorial independence of theCMAJ from the CMA. See, for example, PeterSinger and Gordon Guyatt, “Deeper lessonsfrom the CMAJ debacle” (May 2006) The Lancet367(9522) 1551-1553.56 CMAJ Governance Review Panel Final Report,www.cmaj.ca/pdfs/GovernanceReviewPanel.pdf (date accessed February 25, 2009)Recommendation 25 at 41.57 Anne Marie Owens, “The a word. How didabortion, that most contentious of issues, becomeone that is simply not discussed publicly?” (May5, 2007) National Post available at http://www.nationalpost.com/news/story.html?id=c9fb6309-0a11-4951-b859-f1f5135915b8&p=1 (date accessedFebruary 24, 2009)

called Sanda or me for comment. Herunexamined claim that we “misstated” or“misrepresented” CMA policy has sincebeen repeated a number of times in variousjournals and newspapers—none of whomhave contacted us to ask for an explanationor defence of our interpretation of CMApolicy (which we would, of course, gladlyhave provided).Where was Respect forAcademic Freedom?Some months later, our editorial surfacedagain. In August 2007, my Dean (andSanda’s Dean) received a letter in the mailfrom Paul Steckle and Maurice Vellacott,the Liberal and Conservative Co-Chairs ofthe Parliamentary Pro-Life Caucus, signedas Co-chairs of the PPLC and as membersof the federal parliament. The letter to thedeans began “[i]t has come to our attentionthat a faculty member of the Dalhousie LawSchool, Professor Jocelyn Downie [ProfessorRodgers in the letter to her Dean], has madefalse claims in an editorial published bythe Canadian Medical Association Journalregarding the legal status of abortion inCanada.” 58 It went on to claim we were“wrong” and concluded:We are concerned that Professor Downie[Professor Rodgers in the letter to herDean] has presented a false statementas truth. It is particularly disturbingcoming from a professor of law whowill be perceived by the uninformedas authoritative on legal matters—inthis case, the legal status of abortion inCanada, and particularly the question ofa constitutional ‘right to abortion’. Werespectfully ask that you take the necessarysteps to ensure that your Facultymembers—who have tremendous power toinfluence the minds of our future lawyersand doctors—not allow their own personal58 Letter from Paul Steckle and Maurice Vellacott toPhillip Saunders, August 14, 2007.biases to impair their ability to accuratelyrepresent the law. 59 (emphasis added)Fortunately, my Dean responded forcefullyin defence of Sanda and me and theposition we had taken on the law and,most importantly, the principle of academicfreedom:Universities operate on the principle ofacademic freedom, and in my view theeditorial written by Professors Downieand Rodgers falls squarely within theappropriate exercise of that freedom,commenting as it does on an importantmatter of public and legal debate. It isessential that they be able to do so free ofpolitical or administrative interference.You and others are of course free to presentcontrary arguments, but any attempt byme to take what you call “necessary steps”to prevent the expression of such viewswould clearly violate the academic freedomof faculty members.Entirely apart from the issue of academicfreedom, I also note that you havesuggested that Professor Downie andProfessor Rodgers have made what youcall “false claims”, have presented “a falsestatement as truth” and allowed “personalbiases” to affect their legal analysis. Ido not see any factual basis for theseassertions. It is clear that you disagreewith the arguments and views they havepresented, but that in itself is not a basisfor the serious allegations you have madein your letter. 60The CodaObviously neither Sanda nor I weresilenced by the events that followed thepublication of our editorial. However,I was shocked and disappointed bythe actions of the journal, journalists,and parliamentarians. Clearly legal59 Ibid.60 Letter from Phillip Saunders to Paul Steckle andMaurice Vellacott (August 22, 2007).

66academics working in politically chargedcontexts must continue to be ready for,and vigorously resist, attempts to shutdown debate on important matters ofpublic policy and interfere with academicfreedom. The question is, will the journals,journalists, and members of parliament stepback from the political fray and adhere tothe journalistic and ethical standards andvalues that should guide their conduct?

Canada from an Internationaland Comparative Perspective67

Canada from an International and Comparative PerspectiveKatherine McDonald, Action Canada for Population and DevelopmentThe following is a synopsis of the Power Pointpresentation given by Katherine McDonald.Abortion Rights in International Law• Right to non-discrimination andequality• Right to health• Right to life• Right to liberty and security ofthe person• Right to decide on the numberand spacing of children• Right to freedom of conscienceand religionInternational Law• Treaties and conventions signedand ratified by States• Customary international law• General principles of law• Judicial decisions, legal scholarsHuman rights treaties1. International Covenant on Civil andPolitical Rights (ICCPR):CCPR Committee2. International Covenant on EconomicSocial and Cultural Rights (ICESCR):CESCR Committee3. Convention to Eliminate All Formsof Discrimination Against Women(CEDAW): CEDAW Committee4. Convention to Eliminate All Formsof Racial Discrimination (CERD):CERD Committee5. Convention Against Torture (CAT):CAT Committee6. Convention on the Rights of the Child(CRC): CRC CommitteeFirst Provision on Abortionin a Human Rights InstrumentProtocol to the African Charter on Humanand Peoples’ Rights on the Rights ofWomen in Africa:“Protect the reproductive rights of womenby authorizing medical abortion in cases ofsexual assault, rape, and where continuedpregnancy endangers the mental andphysical health of the mother or the life ofthe mother or foetus”Treaty Bodies Hold States to AccountStates that have ratified the treaty report tothe treaty body. Treaty bodies issue:• General recommendations• Specific comments (concludingobservations a or comments)• Precise and concrete standards275 Concluding Observations on AbortionIdentifying Multiple Rights ViolationsSuch as…• Right to life• Right to health• Non-discrimination and equality• Right to liberty and security of theperson• Right to be free form cruel, inhumanand degrading treatment• Right to freedom of conscience andreligion69

Concluding Observations: CCPRCommittee Right to Life• Unsafe abortion as a cause of maternalmortality = 8• Restrictive abortion laws as violatinghuman rights = 27• Amend laws to permit abortion incertain circumstances = 15• Abortion as a means of familyplanning = 2• Inappropriate use of conscientiousobjection = 2,• TOTAL = 42Right to HealthThe right to health is found in four internationaltreaties with the exception of the ICPPR andTorture Convention• All except CERD define the right tohealth in relation to abortion• Condemned restrictive abortion lawsas a violation of women’s human rightsConcluding Observations: CESCR• Decrease use of abortion as means offamily planning = 6• Link between high maternal mortalityrate and unsafe abortion = 20• Urge states to amend laws to permitabortion in certain circumstances = 4• Inappropriate use of conscientiousobjection = 2• Permit therapeutic abortion = 2• TOTAL = 43Concluding Observations from CEDAW• Unsafe abortion as cause of highmaternal mortality rate = 28• Derides abortion as means of familyplanning = 19• Critique sex selection = 2• Review restrictive abortion legislation= 16• Where abortion legal ensure services= 7• Conduct national dialogue = 3• TOTAL = 92 to 81 countriesConcluding Observations from CRC• High incidence of teen pregnancy andabortion = 33• High incidence of maternal mortalitydue to unsafe abortion = 15• Abortion as a means of familyplanning = 15• Sex selective use of abortion = 2• Deploring lack of data on teenpregnancy, maternal mortality andabortion = 16• Permit abortion in cases of rape andincest = 2• TOTAL = 60 to 66 StatesConclusionRestrictive laws that force women to risktheir lives and health through resort tounsafe abortion constitute violations ofwomen’s rights to life and to health.70

Appendices71

Appendix 1: Symposium ProgrammeThe Faculty of Law, University of Toronto and the National Abortion Federation PresentA Symposium to Mark the 20th Anniversary of R v. MorgentalerOf What Difference: Reflections on the Judgment and Abortion in Canada TodayFriday, January 25, 20089:00am–5:00pmFaculty of Law, University of TorontoThis interdisciplinary symposiumcelebrates the twenty year anniversary ofR v. Morgentaler, the Supreme Court casein which the criminal law on abortion inCanada was held unconstitutional. Thesymposium examines the significance of thejudgment twenty years on. What differencehas it made to women, providers and thepolitics of abortion in Canada?REGISTRATION AND LIGHT BREAKFAST(8:30–9:00am)WELCOMING REMARKS(9:00–9:30am)Dean Mayo MoranFaculty of Law, University of TorontoVicki SaportaNational Abortion FederationColleen FloodCIHR—Institute of Health Services and PolicyResearch, Faculty of Law, University of TorontoDr. Henry MorgentalerTHE CONTEXT: FROM MORGENTALERTO ABORTION IN CANADA TODAY(9:30–10:30am)R v. Morgentaler: Charter Rightsand AbortionLorraine WeinribFaculty of Law, University of TorontoPost-Morgentaler Challenges:From Crime to HealthJoanna ErdmanFaculty of Law, University of TorontoAbortion in Canada Today:Who, What and Where?Dawn FowlerNational Abortion Federation, CanadaRIGHTS IN PRACTICE:BARRIERS TO AVAILABLE ANDACCESSIBLE CARE(10:45–12:15pm)Geography: Variation Across the CountrySheila DunnBay Centre for Birth Control, Department ofFamily and Community Medicine, Women’sCollege Hospital, University of TorontoLaw: Facilitating and Impeding AccessSandra RodgersFaculty of Law, University of OttawaBetter Never Than Late, But Why?:The Contradictory Relationship betweenLaw and Abortion?Shelley GaviganOsgoode Hall Law School, York UniversityInformation Failure:An Ontario Case StudyLorraine FerrisFaculty of Medicine, University of Toronto73

LUNCH WITH STUDENT POSTERPRESENTATIONS(12:15–1:15pm)When Freedom Fails: Free Speechand Women’s Right to Safe Abortionin the PhilippinesCarolina S. Ruiz AustriaFaculty of Law, University of TorontoThe Other MorgentalersChris KaposyDalhousie UniversityPermitted Exceptions to Abortion Lawin Brazil: Helpful or Harmful?Keri BennettFaculty of Law, University of TorontoOUR PROVIDERS: THE CHALLENGESOF THEIR WORK(1:15–2:45pm)Challenges of Providing Abortion Care:A Provider’s PerspectiveKonia TroutonVancouver Island Women’s ClinicWhy I Do This? Being a ProviderGary RomalisThe Elizabeth Bagshaw Women’s Clinic,VancouverThe New Generation: Abortion inMedical SchoolsPat SmithGrand River Hospital, Kitchener and NAFand NAF CanadaABORTION IN LAW AND POLITICS(3:00–4:30pm)The Role of Media in the Abortion DebateHeather MallickJournalist and authorThe Politics of Abortion:The Work of the PoliticianCarolyn BennettHon. Carolyn Bennett MD. MP St. Paul’sLegal Reform in a PoliticallyCharged ContextJocelyn DownieFaculty of Law, Dalhousie UniversityCANADA FROM AN INTERNATIONALAND COMPARATIVE PERSPECTIVE(4:30–5:00pm)Canada from an International andComparative PerspectiveKatherine McDonaldAction Canada for Population and DevelopmentSYMPOSIUM CONCLUSION ANDTHANKS74

Appendix 2: Presenter BiographiesThe Honourable, Dr. Carolyn Bennett,PC, MP, was first elected to the House ofCommons in 1997 and re-elected in 2000,2004 and 2006 representing the Torontoriding of St. Paul’s. Carolyn has served asOpposition Critic for Social Development,a portfolio that includes social policy areassuch as child care, people with disabilities,homelessness and housing. Carolyn alsoserved as the Vice Chair on the StandingCommittee on Health and sat on theStanding Committee on National Defenseand traveled with the Committee in January2007 to Afghanistan. Presently Carolyn isthe Opposition Critic for Public Health,Seniors, Canadians with Disabilities andthe Social Economy Portfolio. Dr. Bennettobtained her degree in medicine from theUniversity of Toronto in 1974, and receivedher certification in Family Medicine in 1976.Prior to her election, Dr. Bennett was afamily physician and a founding partner ofBedford Medical Associates in downtownToronto. She was President of the MedicalStaff Association of Women’s CollegeHospital and Assistant Professor in theDepartment of Family and CommunityMedicine at the University of Toronto. Dr.Bennett served on the Boards of HavergalCollege, Women’s College Hospital, theOntario Medical Association, and theMedico-Legal Society of Toronto.Jocelyn Downie holds a Canada ResearchChair in Health Law and Policy and isa Professor in the Faculties of Law andMedicine at Dalhousie University. Jocelynreceived an honours BA and MA inPhilosophy from Queen’s University, anMLitt in Philosophy from the Universityof Cambridge, an LLB from the Universityof Toronto, and an LLM and doctorate inlaw from the University of Michigan. Aftergraduation from law school, she clerked forChief Justice Lamer at the Supreme Courtof Canada.Jocelyn’s work is geared to contributingto the academic literature and affectingchange in health law, policy, and practicein a variety of areas. Past work hasexplored assisted death, organ donationand transplantation, and the governanceof research involving humans. She has justembarked upon a new program of researchfocusing on legal determinants of women’shealth and relational theory—both of whichhave significant potential implications forabortion law and policy in Canada.Sheila Dunn MD, MSc, CCFP(EM), FCFPis an Associate Professor in the Departmentof Family and Community Medicine atthe University of Toronto. She works asa family physician at Women’s CollegeHospital and is the Research and ProgramDirector at the Bay Centre for Birth Control,a large sexual health clinic for women. Sheis involved in undergraduate, graduateand post-graduate teaching in women’shealth, abortion and family planning,sexually transmitted infections, and officegynecology. Her research interests includenew contraceptive methods, provision ofcontraceptive care, medical abortion, andaccess to emergency contraception.Joanna N. Erdman is the Co-Director ofthe International Reproductive and SexualHealth Law Programme and Director ofthe Health Equity and Law Clinic at theFaculty of Law, University of Toronto.Joanna has published in the areas of accessto reproductive health care, Canadianhealth care policy and human rights law.Her primary scholarship concerns sex and75

gender discrimination in the regulation,structure, and financing of health caresystems. Joanna obtained her B.A. and J.D.from the University of Toronto and herLL.M. from Harvard Law School. Joannais a member of the Law Society of UpperCanada.Lorraine E. Ferris is a Professor ofPublic Health Sciences in the Facultyof Medicine, U of Toronto and a SeniorScientist, Clinical Epidemiology Unit,Sunnybrook Health Sciences Centre andin the Institute for Clinical EvaluativeSciences (ICES), Toronto, Ontario. She hasa PhD in Psychology, is licensed to practice(C.Psych.), and holds two Masters of Lawsdegrees (LLM, LLM). Dr Ferris focuses onwomen’s health, health services research,and medico-legal issues, especially issuesconcerning public protection, standardsof care, confidentiality, regulation, andresearch environments. She is currentlythe Principal Investigator, Studies onAccess to Abortion Services in Ontario(SAAS) funded by the Ontario Women’sHealth Council. Ten years ago, she wasthe Principal Investigator of the Studies onAccess to Therapeutic Abortion Services(SATA) funded by the Ontario Ministry ofHealth and Long-Term Care that providedthe first provincial comprehensive pictureof access to abortion services through ananalysis of primary and secondary data.Colleen M. Flood is a Canada ResearchChair in Health Law and Policy. She isalso the Scientific Director of the CanadianInstitutes for Health Research, Instituteof Health Services and Policy Research.She is also an Associate Professor of Lawat the University of Toronto and is crossappointedinto the Department of HealthPolicy, Management and Evaluation andthe School of Public Policy. Professor Floodobtained her B.A. and LL.B. (Honours)from the University of Auckland, NewZealand and her LL.M. and SJD from theUniversity of Toronto, Canada. Her primaryarea of scholarship is in comparative healthcare policy, public/private financing ofhealth care systems, health care reform,and accountability and governance issuesmore broadly. She has been consulted oncomparative health policy and governanceissues by both the Senate Social AffairsCommittee studying health care inCanada and by the Commission on theFuture of Health Care in Canada (theRomanow Commission). She is the authorof numerous articles, book chapters, andreports as well as the author and editor offive books.Dawn Fowler is the Canadian Directorfor the National Abortion Federation. Thisnewly created position started in 2006 andDawn has been working on trying to haveabortion included on the inter-provincialbilling agreement and to ensure thatphysicians have to provide a referral forabortion care when a woman requests suchcare. She worked at Health Canada for 11years as Chief of Reproductive and ChildHealth and developed Canada’s PerinatalSurveillance System which includedabortion. Dawn also headed up the HealthSurveillance Division and created thewomen’s health surveillance system. Dawnalso worked as a consultant with WHO—EURO Office and worked on reproductivehealth and quality assurance issues in thenewly independent states of the formerSoviet Union. Upon her return to Canadashe organized the opening of a newabortion clinic in Victoria, British Columbiaand became its Manager.Shelley A.M. Gavigan is an AssociateProfessor and member of the faculty ofOsgoode Hall Law School and the GraduatePrograms in Sociology and Women’s76

Studies at York University. She joined thefaculty of Osgoode Hall Law School inToronto in 1986 and is currently serving herthird term as Academic Director of ParkdaleCommunity Legal Services in Toronto. Shewas Associate Dean of Osgoode Hall LawSchool from 1999 to 2002, and Osgoode’sDirector of Clinical Education from 2004to 2006. Her publications include the book,The Politics of Abortion, with Jane Jensonand Janine Brodie (Oxford, 1992), Herrecent research includes a doctoral project,“Criminal Law on the Aboriginal Plains:The First Nations in the First CriminalCourt in the North-West Territories, 1870–1903;” a community-based project on accessto justice for low income and marginalizedyouth, in collaboration with colleagues inclinical legal education at Osgoode and theFaculty of Education at York University.Heather Mallick, who writes for CBC.cawell as the Guardian online, has writtenabout abortion rights throughout herjournalism career. She has been nominatedfour times for National Newspaper Awards,winning for Critical Writing and FeatureWriting. She has worked at the TorontoStar, The Financial Post, The Sunday Sun inToronto and As If columnist in the Reviewsection and Focus section of the Globe andMail. Last spring, Knopf Canada publishedthe paperback version of her second book,a collection of essays on surviving in theBush era called Cake or Death. In 2007,she gave the annual Hurtig lecture atthe University of Alberta on the threat toCanada as it allows itself to be taken intothe American sphere.Katherine McDonald, LL.B., LLM, is thefirst Executive Director of Action Canadafor Population and Development, whichwas formed in 1997. ACPD is a humanrights advocacy organization that seeks toenhance the quality of life of women, menand children by promoting progressivepolicies in the field of internationaldevelopment with a primary focus onreproductive and sexual rights and healthand an emerging focus on internationalmigration and development.Before joining ACPD Katherine McDonaldpracticed law for ten years, was theExecutive Director of the Nova ScotiaPublic Legal Education Society, andPresident of the Nova Scotia AdvisoryCouncil on the Status of Women. She isa Past President of Planned ParenthoodFederation of Canada, and a formermember of the regional and internationalgoverning bodies of International PlannedParenthood Federation (IPPF).Sanda Rodgers, B.A., LL.B., B.C.L.,LL.M is a professor and former Dean ofthe Faculty of Law, University of Ottawa.She holds the Shirley Greenberg Chair inWomen and the Legal Profession. She hasbeen a Bencher of the Law Society of UpperCanada and Commissioner of the OntarioLaw Reform Commission and is a recipientof the Women Lawyers AssociationPresident’s Award for OutstandingContribution to the Legal Profession andof the Business and Professional Women’sAssociation of Ottawa Women’s ChoiceAward for Outstanding Contributor toGender Equity.Garson Romalis, MD, FRCSC, FACOGis on the Honorary Staff of the VancouverGeneral Hospital and the Active Staff ofBC Women’s Hospital, and is the MedicalDirector of the Elizabeth Bagshaw Women’sClinic. He graduated from the Universityof British Columbia Medical School in1962. Gary served his rotating internshipand Ob/Gyn residency at Cook CountyHospital in Chicago from 1962–1966. Garydid further residency training in general77

surgery, pathology, and gynecologic cancerat the Vancouver General Hospital from1967–1968.Gary has been in the private practice ofOb/Gyn, including abortion services, inVancouver since 1972. Gary has survivedto two murder attempts in 1994 and 2000in connection with abortion. Since 2000 hehas limited his practice to the provision ofabortion services.Vicki Saporta, President and CEO of theNational Abortion Federation. UnderVicki’s direction, the National AbortionFederation has played a critical role inpromoting and preserving women’s accessto safe, legal abortion care. Since takingthe helm in 1995, Vicki developed a publicpolicy program that brought abortionproviders and the women they serveinto the forefront of the public debateabout abortion; guided NAF in settingthe standard for quality abortion care inNorth America; led the introduction ofmedical abortion (RU-486) in the U.S.;and broadened NAF’s outreach anddirect assistance to underserved women.Vicki is an expert on public policy issues,reproductive health, and anti-abortionviolence.Pat Smith, MD is a family doctor bytraining and has been an abortion providerfor 16 years. She has provided care ina variety of settings, including a largeacademic medical centre, small communityhospitals and free standing clinics. She isvery interested in training new providersand works closely with residents andmedical students. Pat has been on theBoard of Directors of the National AbortionFederation for 8 years and is currently theChair of the Board. While on the Boardof NAF Pat has worked on the MedicalEducation, Clinical Policy Guidelines, andQuality Assessment and ImprovementCommittees. She is also the current Chairof the Board of Directors of NAF Canada.Pat participated in the NAF internationalprogram, training physicians to usemanual vacuum aspiration in Russia. Shehas worked with Medical Students forChoice in Canada and the United Statesand has been a speaker at many of theirmeetings. She was the faculty advisor forthe first Canadian group when it formed inHamilton.Konia Trouton MD, CCFP, FCFP, MPHis the medical director of the VancouverIsland Women’s Clinic, which sheestablished with her partner in 2004. Shehas worked for over 15 years providingpregnancy terminations in 5 provinces andterritories. She offers medical abortionswith methotrexate and misoprostol, andsurgical terminations to 20 weeks. Koniadoes research and provides workshops onabortion and reproductive health topics.She particularly enjoys regular teachingopportunities with midwives, nurses anddoctors through her appointment as aclinical associate professor with UBC andUVIC.Lorraine E. Weinrib was appointed tothe Faculty of Law and the Departmentof Political Science of the University ofToronto in 1988. Previously, she workedin the Crown Law Office—Civil, Ministryof the Attorney General (Ontario),holding the position of Deputy Directorof Constitutional Law and Policy at thetime of her departure. Her work includedlegal advice and policy development onconstitutional issues, as well as extensivelitigation, frequently in the Supreme Courtof Canada. At the Faculty of Law, ProfessorWeinrib teaches the first year constitutionallaw course as well as advanced courseson the Charter, constitutional litigation,and comparative constitutional law.78

Her writing, in which she advocates theinstitutional coherence of the Charter,includes articles on the interpretation ofsections 1 and 33, the theoretical dimensionof the Supreme Court of Canada’s Charterjurisprudence, the process leading up to the1982 amendments to the Constitution, andstudies of leading cases, e.g., Morgentaler(abortion), Ford (override), Keegstra(hate promotion) and Rodriguez (assistedsuicide). Professor Weinrib holds lawdegrees from Yale and Toronto, and anundergraduate degree from York.79