Who killed Canada’s abortion debate? | Canada Did What?!

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It wasn’t that long ago that elective abortions were harder to get in Canada than anywhere in the U.S. What changed was one of the most actively forgotten political brawls in our history, sparked by one doctor, Henry Morgentaler, a Holocaust survivor who believed legal abortions could prevent future mass atrocities. The ordeal was so divisive, so heated and so unpleasant that an exhausted country gave up on finding a way through it, and instead just decided to never tackle the issue again.

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Canada Did What?! is a Postmedia podcast that digs into the untold, surprising political stories of the last few decades with host Tristin Hopper. From the metric wars to Morgentaler, from the October Crisis to the abortion debate, we’re unpacking all the wildest political moments you might think you remember — and giving you the real story you never knew. We talk to the politicians, journalists and newsmakers who were right there when history happened. And we have a lot of fun doing it. 

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Find the complete archive with transcript here.

Canada Did What?! Episode 5 transcript

Tristin Hopper: If I were to pick the one major difference between Canadian and U.S. politics, it would be this: Abortion is not a political issue in Canada. In the U.S. the abortion question has overhung every Supreme Court appointment of the last 50 years. You basically can’t become a Republican presidential candidate without some kind of anti-abortion stance. In Canada you have people who would LOVE to make it a political issue — like this guy, Prime Minister Justin Trudeau.

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Clip: Our government will always stand up and take action to protect access to reproductive health.

Hopper: But here’s what it sounds like when you ask the leader of the opposition Conservative Party of Canada what he’s going to do about abortion.

Clip: A Poilievre government would not introduce or pass legislation restricting abortion.

Hopper: That Conservative leader, I should mention, is adopted. If he was a Republican politician in the U.S. he’d be starting every second speech with a line about how his birth mother “chose life.” But in Canada, Poilievre is so unwilling to touch abortion that Campaign Life Coalition – the country’s one big anti-abortion lobby group – says he’s a traitor to his Catholic background. Here’s his predecessor Erin O’Toole.

Clip: As you know, I’m pro-choice.

Hopper: Here’s his other predecessor, Andrew Scheer.

Andrew Scheer: On this issue I have been very clear I will not reopen this debate and I will oppose measures or attempts to open this debate.

Hopper: And here’s former Conservative Prime Minister Stephen Harper.

Stephen Harper: I’ve been very clear as party leader, I think I’ve been clear as prime minister, and I think our government has been clear, notwithstanding people who may feel differently, as long as I’m prime minister we are not reopening the abortion debate.

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Hopper: If all these Conservatives are hesitant to take a position on the issue, it’s because they know that talking about abortion is a great way to lose elections in Canada. Don’t take my word for it: In May of this year the polling firm Leger surveyed Canadians about whether they thought elective abortion should stay legal. Eighty per cent said yes. But this is all a relatively new development. Just a generation ago, elective abortions were effectively illegal in Canada. At the very least, they were much harder to get here than anywhere in the United States. Back then you could get an abortion at a clinic in Mississippi, but get one in Downtown Toronto and you could technically wind up in jail. And there’s good reason to believe that the Canadians of the time wanted it that way.
What changed was one of the most actively forgotten political brawls in our history.

For a few months in the late 1980s, Canada utterly tore itself apart over the question of who should be allowed to get an abortion, and under what circumstances.
It was so divisive, so heated and so unpleasant that an exhausted country very deliberately decided to never speak of it again. And we’ve been there ever since.
I’m Tristin Hopper, the host of Canada Did What?! And here’s why you live in the most pro-abortion country on earth — and largely because nobody has the energy to debate it anymore.

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Welcome to Canada Did What?!, the show where we take the big Canadian political events you might think you remember and tell you the real stories you never knew. I’m Tristin Hopper. Canada is one of the world’s only countries without any abortion law whatsoever. It’s just not mentioned in our laws, and yet, 40 years ago, Canada was a harder place to get an abortion than almost anywhere else in the Western world. This episode is about what happened between those two points.

In 1986, if you wanted an abortion — even for medical reasons, like an ectopic pregnancy — you needed to talk to your doctor, who would refer you to a hospital. Hospitals were the only entities legally allowed to perform abortion. The hospital would review your case and would decide whether to perform one or not. That was the law. Here’s where we introduce our guest, Catherine Dunphy. She was a staff writer at the Toronto Star during this period and often covered the abortion issue. Here’s Dunphy describing what it took to obtain a legal abortion pre-1988.

Catherine Dunphy: I talked to a number of women who were in clinics and working on behalf of this. And it was basically like dialing for dollars. You would start Thursday morning at the stroke of 8 a and you’d keep dialing, dialing, dialing, dialing in the hospital trying to get in because they would do exactly, well, Toronto General Hospital, which is, I think, the largest in the country, were doing exactly seven abortions a week. So, I mean, you you can imagine the number of people. Women’s College Hospital was doing a big three. So, although, Although abortion was sort of accessible, it really wasn’t.

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Hopper: Skip to just two year later to 1988 — and what’s the law on abortion then? Suddenly there wasn’t one. Literally no restrictions existed in 1988. Abortion went from heavily restricted to completely unrestricted almost overnight. There was no referendum on this. There wasn’t even an Act of Parliament. This whole thing is due to a somewhat surprise decision out of the Supreme Court of Canada. And it came about in large part because of one man. A Canadian doctor who had been relentless about running illegal abortion clinics since the 1960s and was determined to overturn the laws prohibiting the practice. Along the way he endured multiple arrests, constant raids, a jail term, a firebombing of his clinic, an attack by a fanatic wielding garden shears, the approbation of virtually his entire profession and frequent death threats.

Henry Morgentaler opened a black-market abortion clinics in Montreal, then later in Toronto and Winnipeg. He had several other pro-abortion doctors working there. And they were nice places; basically indistinguishable from any conventional doctor’s office. And for a time, they were the only places in North America you could get an abortion performed with a vacuum – a procedure that Morgentaler pioneered which is now standard. Everybody else was using a much blunter method that resulted in more complications. But all of this was illegal. Multiple times a day, Morgentaler and his colleagues were violating the Criminal Code restriction against facilitating the termination of a pregnancy. Morgentaler obviously knew this. But from the start, he simply dared authorities to prosecute him: He openly told anyone who asked that he was performing abortions; he even demonstrated how he did it in a 1973 TV appearance.

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But his plan all along was to challenge the law: Go ahead and Raid my clinic, arrest me, and let’s put it to a jury, and see if they convict. But the juries never did. Morgentaler was raided a lot. So he spent a good chunk of the 1970s and 1980s in court – but he was never convicted by a jury. The one time he ended up with a jail sentence was when a Quebec appeals court judge overturned one of his jury acquittals. For that, he spent 10 months in Montreal’s Bordeaux Prison. Morgantaler’s clinics were also subject to rowdy angry protests from anti-abortion activists. They would do their best to try to prevent women seeking to terminate their pregnancies from getting inside. And they could be pretty forceful and intimidating. Back to Catherine Dunphy. We invited her on the podcast not only because she covered abortion during the 1980s, but she’s also Henry Morgentaler’s official biographer. Here’s what Dunphy says it was like for patients visiting one of Morgantaler’s clinics for an abortion in those early days.

Dunphy: Every woman who had to, who wanted to and had to, would be given an escort, usually two so that the protesters wouldn’t know which of the women were going in for abortions. And they would stay at a safe house before, so to help them get physically through the protesters to the clinic. They were escorted out after, sometimes they had various safe houses from one house to another to another. Sometimes police would follow them and they would do all sorts of things to get the police. it was really, telling you, this was And these women were trained and they were there to support these women in all ways. So it wasn’t simply, you know, we want to have this as a political thing. It was very real to them.

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Hopper: Ultimately, the Supreme Court decision that effectively spelled the end of all of this was: Her Majesty Queen Elizabeth II In Right of Canada versus Dr. Henry Morgentaler. Or: R v Morgentaler for short. And it did it using the fairly new Charter of Rights and Freedoms. It was a surprise because the Charter had just been introduced a few years earlier with the explicit promise that it would NOT be used to significantly alter Canadian abortion law. The prime minister at the time, Pierre Trudeau, who had championed the Charter’s adoption, and was himself a relatively devout Catholic, told the Archbishop of Toronto in 1981 that his new charter was “absolutely neutral on the issue of abortion.” He even promised that if a future Supreme Court somehow found a Charter right to “abortion on demand” – those are Trudeau’s words – then Parliament could just overrule it.

Instead, smash cut to just five years later, and a court filled with Trudeau appointees not only decriminalizes abortion, but strikes down the abortion law entirely. The man behind this legal earthquake, Henry Morgentaler, was a Holocaust survivor. Born in Poland, he survived the Lodz Ghetto, Auschwitz and Dachau, while his parents and sister were murdered by the Nazis. You will hear anti-abortion rhetoric – particularly in the United States – that draws comparisons between legal abortions and the Holocaust. The argument may not be “abortions are literally the Holocaust,” but the gist is that it’s dangerous for the state to defend some forms of life and not others. But Morgentaler, the Holocaust survivor, obviously didn’t see it that way. Quite the opposite, he said he believed that abortion could be a means to prevent future Holocausts, as it helped ensure that only “well-loved” children entered the world. “Well-loved children grow into adults who do not build concentration camps, do not rape and do not murder,” he said in 2005 after accepting an honorary degree at the University of Western Ontario.

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Dunphy: He truly believed that he could eliminate evil. He could do it so that there would never be those guards that he had and that he was faced in Auschwitz. He would never have to face that kind of ugliness and cruelty if every child were a wanted child. That was his credo, and so he felt he was on a mission and therefore the word abortionist for him was an honourable term.

Hopper: Another thing to note about Morgentaler: Like a lot of successful activists, he wasn’t all that pleasant to be around. Catherine Dunphy’s book on Morgentaler is called A Difficult Hero. At the time of its publication in 2003, Morgentaler was estranged from his eldest child and his first wife – and had just become estranged from his second wife.

Dunphy: Henry’s personality as I see it, or as I saw it, is such that he needed a fight. He had to have a fight. He was someone who lived through the Holocaust. His sister was a victim. His sister was a freedom fighter in Warsaw. His mom and dad, you know, they, you know, that. You know the stories, they’re horrible. You go on the train, you go left, you off the train, you go left or right. And his mom went one way and he and his brother went the other. He never saw his mom again. This impacted him so much and he would never acknowledge it, but in small ways and large ways. But obviously what he wanted to do was in some way honour his father whom he revered. His father was a labour unionizer. And to live a life with meaning. He needed a purpose. He had the good life in Montreal. He had, as he’s described it himself, he had the wife, mistress, the house, the kids, he had it all. He had a good practice, but it wasn’t enough for him. So in many ways, Henry wanted that battle and he needed that battle and he was ready, I believe he really was ready to do that.

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Hopper: Morgentaler’s career as an “abortionist” started in 1967, almost by accident. He was a GP and a member of the Humanist Fellowship of Montreal, which advocates for secularism over religion. They had recruited him to testify before a Parliamentary committee on why Canada should liberalize its abortion law.

Clip: “We believe any woman should have the right to ask for a termination of pregnancy within the first three months of pregnancy, because we believe that she alone should make the responsible decision about whether she wants the pregnancy to continue or not.

Hopper: That’s from an interview Morgentaler gave to the CBC after his testimony. Immediately after that interview, Morgentaler started getting bombarded with calls from women looking for a place to get an abortion. So he starts performing them covertly, opens his first abortion clinic in 1968, and pretty soon he had become the face of abortion in Canada. And if he was looking for a fight, he had found one. Soon there were regular picketings and sit-ins by pro-life demonstrators at the clinics, petitions by neighbours to get the clinics shut down, and when Morgentaler gave public talks you could count as many as 1,000 counter-demonstrators there. And the public talks were part of how he was paying for all this. Being constantly in court for a decade or so is expensive, so he held fundraising tours to cover the legal bills. He also received constant death threats. When he made a series of public appearances in Edmonton in 1985, police said they’d investigated three death threats against Morgentaler, not including a woman who screamed “kill him! Kill him!” at one of his talks.

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When Morgentaler’s Winnipeg clinic announced plans to reopen following a police raid, a Manitoba anti-abortionist named Joe Borowski just straight-up told reporters that Morgentaler had “signed his own death warrant.” Just to give you an idea of just how chaotic it was to be the Face of Canadian Abortion, here’s what 1983 looked like for Henry Morgentaler: He opens the Toronto clinic in June, and on its second day he’s walking to work when a neighbour wielding garden shears like a dagger lunges at him while screaming. A couple weeks later the clinic is raided by police. It reopens, and then a few weeks after that, arsonists set fire to the building. Oh, and during this period his Winnipeg clinic is raided and everyone involved is charged with conspiracy to procure a miscarriage.

Dunphy: I do believe that Henry, knew that he was going to be in for a fight. I don’t believe he ever thought it would be 20, 30 year fight, court case after court case after court case, involve imprisonment, involve threats, all the stuff he went through. He honestly believed that when people really thought about it, they’d come around.

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Hopper: But Morgentaler’s views were completely at odds with the medical mainstream. In 1985 the Canadian Medical Association said it was officially quote “opposed to abortion on demand or its use as a birth control method.” Today, the CMA is adamantly pro-abortion. Like so much of Canada, after Morgantaler, it would never be the same.

Dunphy: It was important for Henry that he told everybody that he always knew he was going to win. Meanwhile, he’s on anxiety pills, he’s going to Club Med every six weeks to decompress. mean, he’s nervous and scared, but he always believed he would win. First of all, he always felt, first of all, no jury would convict him. No jury did ever convict him. He was convicted by appeal, but never by a jury.

Hopper: Just to recap how things used to be. For Canada’s first 102 years, abortion was completely illegal and was treated on paper with the same severity that we now treat murder. Here’s what it said in the Criminal Code: “Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.” There were exceptions, but the one major change to this came in 1969, when Canada legalized “therapeutic abortions.” Now, you could get an abortion provided it was approved by a “therapeutic abortion committee” at a hospital.

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Hospitals weren’t required to have abortion committees. But if they did, it was a panel of between 4 and 6 doctors who were tasked with determining whether the abortion applicant would have their “life and health” endangered if she proceeded with her pregnancy. In practice, that actually left a lot of leeway, which is probably why there were still a lot of abortions happening. More than 60,000 per year.

Dunphy: At the time, Canada was really operating under a law from about 1869, which meant that a doctor or a woman could be jailed for life if they were caught. Now, obviously this wasn’t happening in a great deal, but this was a really, really serious issue. And there have been some statistics and research that believes that illegal abortions, blotched abortions, were the leading cause of deaths of women of maternal age. That’s how serious it was. were desperate. They used Lysol. They used slippery elm. One of the visual logos of the movement was a red line across a coat hanger because the number of women who had tried to, you know, induce an abortion via coat hanger. There were photos around, I still remember them, horrendous photos of, I remember one of a naked woman who died in a wretched grubby motel room trying to give herself an abortion and the police found her curled up body there. was, women were desperate.

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Hopper: Now throughout the 1970s and 1980s, abortion in Canada was treated like any other controversial issue. Every once in a while, a conservative would try to restrict it, or a left-winger would try to liberalize it … but nothing much came of either effort. Until Morgantaler came along. When he and two of his fellow doctors were charged in 1983 for performing illegal abortions, they used the Charter, which had just been passed a year earlier, to have Canada’s abortion law declared unconstitutional. And they fought the case all the way to the Supreme Court. Their case hinged on Section 7 of the Charter.

That’s the one that reads “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof.” Their central argument was that if you don’t provide a woman with an abortion, then she’s eventually going to have to deliver a baby – and that it violates her “security of the person” to force her to.

And it worked. On January 28, 1988, the Supreme Court of Canada issued its ruling telling the government Canada that the abortion law was illegitimate — that the slate is now clean. There is no abortion law — at all. The government can write a new abortion law, the court said, but the old one was gone. This is from the text of the decision: “Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference.”

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If you’re a pro-lifer, your counterargument is probably “well, what about the fetus? What about the security of their person?” And this did come up in the decision. Chief Justice Robert Dickson – who was 71 when he wrote the majority decision – said that Section 7 guarantees security of the person for “everyone” – which could include human fetuses.

But he wrote that the Supreme Court didn’t need to decide on the rights of the fetus, since the existing abortion law didn’t have protections for the fetus in it, either — and the court was simply ruling on that law. What the Supreme Court effectively decided is that it’s unconstitutional to force a woman to jump through all the hoops of finding a therapeutic abortion committee and waiting for them to approve her for a procedure – and to threaten her with serious jail time if she took other measures.

Here’s a quote from the decision: “The administrative structure for therapeutic abortions is manifestly unfair and offends the principles of fundamental justice.” The ultimate result of R v. Morgentaler was that Canada would have no abortion laws whatsoever. Today, if a woman is nine months pregnant with a healthy baby, she probably won’t find a doctor willing to abort it — even though it’s technically legal to do so. Even the Morgentaler Clinic which is still around, is quite clear that they only abort fetuses up to 19.5 weeks of pregnancy.

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But leaving Canada with literally no law restricting any abortion, for any reason, at any stage of pregnancy was not the goal of R v. Morgentaler. The decision was issued with the expectation that Parliament would simply draft a new, more permissive, abortion law. This is something that has often been forgotten about the Morgantaler decision. There’s nothing in the court’s ruling to stop Canada from continuing to put some restriction on abortion, and the ruling even a point of mentioning that aborting a fetus at six days is a way different proposal than aborting one at six months.

But no Canadian government since has ever tried legislating on abortion, making this country really the only one in the world with no laws whatsoever mentioning abortion. The rest of the world has laws permitting abortion or restricting abortion, but we just … don’t mention it. And I can’t stress enough how wildly different Canada was after the Morgantaler decision from the intense hostility that this renegade abortion doctor faced throughout much of the 1970s and 1980s.

Dunphy: There were a number of medical associations that were definitely against this. When he opened up his clinic in Winnipeg, ultimately what happened was the Manitoba College of Physicians and Surgeons, I might have that name wrong, pulled his medical license. The Roman Catholic Churches, there were some bishops and archbishops who were ultimately, I mean angry and organizing demonstrations of hundreds and thousands of people against Henry. There were, in fact, because of what Henry did as a result, this is where the pro -life movement started, where it became very, very strong and they would take kids from the Catholic high schools and bust them down in front of the Henry’s Toronto clinic.

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There was a huge religious component. There was the political component, the medical association was a bit upset that he was an outsider. He was an outsider. And they weren’t really very happy in terms of having to take on — this was not a battle that they wanted. The legal minds, the just various politicians, again, I’m going to reference Manitoba. It had an NDP government at the time in Henry when he opened the clinic thought, whoa, this will be great. It wasn’t. They were totally, totally fought in tooth and nail. So you have the governments, you have the medical associations, you have the religious orders, and then you have a lot of people who just can’t fathom this and don’t want it at all. So it was huge.

Hopper: So, that Supreme Court ruling came in January 1988. An election year. Brian Mulroney is the prime minister and he oversees a Progressive Conservative government that is at the height of its powers. They came to power in a landslide victory and they’re going to win another smashing majority before they’re done.

And they suddenly get told that Canada suddenly has no abortion law whatsoever and it’s their job to draw up a new one. Now you might assume that this would be seen as a rare political opportunity for the Mulroney government to put its stamp on a major political issue. But it was the opposite: The Mulroney cabinet absolutely hated that they had to do this.

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The minutes from the cabinet abortion discussions were made public in 2013, and the exchanges come across like a family having their Thanksgiving ruined by a contentious political debate. The cabinet included hardcore Mennonites like Health Minister Jake Epp who thought life begins at conception. And liberal urbanites like Status of Women minister Barbara MacDougall who thought it was about time Canada legalized abortion clinics.

Bit by excruciating bit, they argued over every conceivable detail. Should women get jail time if they self-aborted? If you do liberalize early abortion, what’s the cutoff point? 12 weeks? 28 weeks? Conservative senator Lowell Murray was in the meetings, and he would later tell the Canadian Press “none of us was gung-ho for new legislation but we did feel we had a duty to try.”
By November, when there was a federal election, the Mulroney government still didn’t have an abortion law. So the campaign ended up being all about free trade with the U.S.— and almost entirely ignored the abortion issue.

And both the Liberals and Conservatives basically had the same position on the issue anyway: that is, neither of them really wanted to talk about it. Meanwhile, researchers found most voters were “unaware or unmoved by where the candidates stood on the issue.” And surprisingly, Morgentaler didn’t really want to get involved in the political debate either.

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Dunphy: But then the Brian Mulroney’s conservative government decided that they needed to come up with something. They came up with something, Bill C -43, which is ironically enough kind of retrogressive, because it took us back to the therapeutic committees and whatnot. And Henry didn’t get involved, and the feminists were like, come on, this is not great. And he was like, eh, eh, know, kind of thing. He didn’t see that it was really that. And then, you know, he would have taken them back.

For him, what the important part was, was decriminalized. So it still decriminalized, but in this thing, you still had to ask permission, had to go to the doctors, you had to have the committee, you had to do all this stuff. And as far as Henry was concerned, as long as this allowed for freestanding abortion clinics, he didn’t have to go to the hospital. You didn’t have to do anything. A woman could just say, I would like to go to this clinic and get done what I want done. That was for him the victory. But many of the women understood this to be something larger.

Hopper: It wasn’t 1989 that a re-elected Mulroney government finally got around to tabling their attempt at a new abortion law. And they send out the new justice minister – the notably pro-choice Kim Campbell – to do it. The law said that abortion would be criminalized again, but … you can get one if a “medical practitioner” decides that the “health or life of the female person would be likely to be threatened.” It sounded a lot like the old law, but it the term “medical practitioner” was broad enough that it didn’t mean a hospital review board — it could be Henry Morgantaler, or any other doctor. Here’s how the aforementioned Kim Campbell described C-43 to CBC Radio.

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Clip: A lot of people criticized me because I’m strongly pro choice for supporting this bill, but what I saw C 43 as being was a very important effort to try and find common ground in a very divisive issue, and to show some respect for the great many Canadians for whom abortion isn’t just another issue, for whom it isn’t just a question of equality rights, well, at the same time, reflecting what I think is the wish of most Canadians not to intrude in the privacy of a relationship between a woman and her doctor.

Hopper: Campbell was pro-choice, as she mentioned, and her argument was that if you didn’t have some kind of federal abortion standard – even one that wasn’t as permissive as you would have preferred – you were potentially inviting the provinces to get involved. Campbell knew that Canada was home to millions of people who did not agree with the Morgentaler decision, and her pitch was: If we don’t have a law that at least pretends to be tough on abortion, all that pro-life energy is going to be funnelled towards stripping abortion out of the healthcare system. The provinces couldn’t ban abortion, but they could make it very difficult to get.

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And scattered versions of that actually did happen, the most prominent example being Prince Edward Island. Right up until 2016, the province’s health ministry just didn’t offer abortions at their hospitals. You had to leave the province to get one. So what happened to C-43? Well, the Senate happened. The bill passed the House of Commons but was then defeated by one vote in the Senate. Now the Senate generally doesn’t kill House of Commons legislation it doesn’t like. Senators are appointed, after all, so it’s not really all that democratic when they block legislation from the elected House.

But the notable exception they made for Bill C-43 is arguably the most impactful thing the Senate has ever done. When you look at the list of things in Canada that are different because of something the Senate did, right at the top is “no abortion law.”
Because once C-43 was defeated, the Mulroney government – and every other government ever since – very deliberately decided “let’s never do that again.”

Dunphy: And Morgenthaler never did it by himself. Although he deserves all the credit, he got all the credit. He always had literally hundreds of women working with him. He couldn’t have done it without them. Bottom line, they couldn’t have done it without him. And no matter what was happening, in whatever clinic, whether it was the one in Winnipeg which was being shut down or the Toronto ones with huge demonstrations and some guy with a set of gardening shears came running after him, and there was a fire, ultimately it was fire bombed in ’92, but all of this stuff going on, Newfoundland, my gosh, he was caught on the street and feared for his life. He needed this, and they needed him. But everywhere he went, he created chaos and then left town, leaving the local feminists and women’s clinic organizers to cope with it. But every single woman ultimately said, he taught us not to be afraid. He taught us that.

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And they had to not be afraid because they were going to, these were some middle class women, upper middle class women, going against everything in society, everyone in society, going against the biggest law of the land, the lawmakers, the politicians, everybody was against them. That’s scary. And especially for women who might have vested interests, mean, their husbands and stuff are involved and whatnot. So, it was Henry who gave them the courage and bottom line, everyone agreed to that.

Hopper: In 2022, the Supreme Court of the United States struck down their own landmark abortion ruling.
That would be the famous 1973 decision Roe v. Wade. It’s a very different decision from R v. Morgentaler. That one struck down Canada’s existing abortion law as unconstitutional, while the U.S. decision actually did enshrine a kind of “fundamental” right for Americans to have an abortion.

Roe v. Wade even came with this whole pregnancy calendar detailing what kind of restrictions states were allowed to impose at which stage of the pregnancy. But regardless, the result is that Canada and the U.S. followed similar paths in terms of abortion law, with a landmark decision by each country’s top court that completely liberalized abortion.

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It’s the aftermath that couldn’t be more different: Abortion never went away as a major U.S. political issue. For nearly 50 years, the one question overhanging every single appointee to the U.S. Supreme Court was whether or not they would uphold or strike down Roe v. Wade. And it’s why – once there were enough conservative justices appointed to the court – Roe v. Wade was struck down in a matter of months.

But in Canada, the court struck down the abortion law nearly 40 years ago now, and everybody sort of accepted it. There have been 29 Supreme Court of Canada appointments since R v. Morgentaler, and nobody has thought to ask any of them whether they think Section 7 of the Charter provides a guarantee for so-called “abortion on demand.” So an issue that was once pretty controversial just isn’t anymore except among a relatively small group of activists on the pro-life side and on the pro-choice side.

In 2022, the Angus Reid Institute asked Canadians if they were “pro-life” or “pro-choice.” A majority of 52 per cent said they were “complete pro-choice”; abortion was fine at any stage of the pregnancy. That number is definitely higher than it was in the 1980s. And another 41 per cent said they were in the middle: They didn’t want to ban abortion, but they also wanted some limits on it. A mere eight per cent said they were “completely pro life”
And a relatively minor 22 per cent said that a viable fetus had “equal rights to the woman that is pregnant.”

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Arguably the most consequential result of R v. Morgentaler is not that it liberalized abortion. Rather, it showed that a court could make a seismic ruling about a hot button social issue, and the public and their elected representatives would generally just go along with it. Maybe it’s not a coincidence that this marked the beginning of the Supreme Court becoming much more activist in determing the course of Canadian policy.

Since then, it has ruled to legalize assisted suicide. It has ruled to allow more suspects in violent crimes back on the street. It was a Supreme Court ruling that led to all those street-drug injection sites that are causing all kinds of impacts on Canadian cities. And it was the Supreme Court that recently decided that no one should ever be sentenced to a life sentence because it is “cruel and unusual punishment” — even for mass murderers. In fact, the case was about a racist mass murderer who killed six people at a mosque.

So maybe the broad public acceptance of the Morgentaler decision didn’t directly lead to an era in which the Supreme Court felt increasingly comfortable with setting new laws. But it did signal to a whole lot of people, for better or worse, that if you want to fundamentally change Canadian society, the easiest route is just to get the Supreme Court to do it.

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Dunphy: When you really got right down to it, the establishment wasn’t happy, but the people were. And when I was with Henry, or when I was covering him, The cab drivers, some Greek guy for instance, who you think would be no more pro this. He saw Henry as a fighter. He saw Henry taking on the establishment and so Henry was his hero. The waiter, everywhere he went, people would come up to him. Sometimes businessmen would pass him $25,000 checks very quietly. This is, he knew he had the support of the people. He knew what he had to do was literally fight the system.

Hopper: And in 2008, the strange doctor who was repeatedly arrested for defying Canada’s laws on abortion was named a member of the Order of Canada. About a dozen people picketed outside the ceremony. Morgantaler died in 2013. There are still clinics that bear his name in Montreal, Toronto and Ottawa. We’ll end this podcast with a pretty surprising statistic, and one that may affect your impression of everything we’ve talked about. Because whether you’re prolife or prochoice, believe it or not, there were MORE abortions being performed per capita in Canada at a time when abortions were criminalized.
And I’m not talking illegal coat hanger abortions. Legal abortions in a hospital. There were proportionally more of them in the 1980s.

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In 1987, the last full year in which abortion was subject to criminal controls, there were 63,662 therapeutic abortions. That’s from Statistics Canada. And again, that’s just therapeutic abortions approved in a hospital — so it presumably doesn’t include any of Morgentaler’s illegal abortions. And now, I’m looking at the Canadian Institute for Health Information data for “induced abortions” in 2022. This is procedures done in hospitals, abortion clinics – everywhere. There were 97,211 of them.

That’s a higher raw number of abortions. But keep in mind that Canada is much larger now: We have 14 million more people than in the late 1980s: The Canadian population is now 40 million against the 26 million it was when the R. v. Morgentaler decision was made. So on a per capita basis, the rate is actually lower.
So, to review: 1980s Canada: Abortion is a crime, unless a hospital-appointed panel decides that it’s medically necessary.

2024 Canada: Virtually every midsize city has at least one abortion clinic, and you can get a free abortion with about as much paperwork as a dental checkup. And there were more abortions by population in 1980s Canada than today. Abortion rates did indeed go up after 1988, but they soon plateaued and then started to go down; a trend that continues to this day.

As to why; it’s probably a combination of better birth control, better sex education and better home pregnancy tests. Quite simply, Canadian women just aren’t getting accidentally pregnant as often as they used to. So while the story of the Morgentaler decision is obviously an uncontested victory for the abortion rights people, there is a small consolation prize for the pro-life crowd — Canadians it seems are at least getting fewer abortions on average.

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