In the mid- to late-80′s I was a student representative to the Regina Reproductive Rights Coalition which worked to find ways around, over, and through the restrictive abortion law of the day. We networked with women across the country to put an end to the discriminatory law, known as Section 251. That law required any woman who wanted to terminate a pregnancy to not only find a doctor who would perform the procedure but also to have the procedure approved by a hospital’s Therapeutic Abortion Committee (TAC). In Saskatchewan an invisible line divided the province into north and south. Women who lived south of Davidson dealt with Regina’s TAC; women to the north, with Saskatoon’s.
By 1986, there was one doctor in Regina who would perform an abortion, but he would do so according to his interpretation of the law. Basically, he decided which circumstances were the right ones. Needless to say, most women sought other options. The Regina Women’s Community Centre counseled women to go elsewhere for the procedure. Many drove to clinics in the USA or traveled to Ontario. Those with no financial wherewithal went to Saskatoon, where a doctor at the Saskatoon Community Clinic, Dr. John Bury, courageously provided the procedure with very few questions asked. It meant two trips to Saskatoon and a false address if a woman lived south of Davidson. And, it meant waiting days or weeks for the phone call to find out whether or not the TAC had approved the procedure. But for a lot of women, that wait was worth it and Dr. Bury was a lifesaver!
On January 28, 1988, after Dr. Henry Morgentaller’s 8 years legal battle, the Supreme Court of Canada struck down the law saying it infringed on women’s personal security:
State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.
When we heard the news on campus, we were elated! We knew it meant freedom of choice for women on the matter of their own reproductivity for as long as there was no law. I do not know, however, if we really understood the great significance of Justice Bertha Wilson’s Minority Report and her consideration of women’s Charter rights. From p. 171:
…I would conclude, therefore, that the right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives.
The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does. This decision is one that will have profound psychological, economic and social consequences for the pregnant woman. The circumstances giving rise to it can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.
Wilson went further, providing a feminist-based interpretation and questioning a man’s capacity to so much as understand what a decision such as this is to a woman:
It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience … but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.
She cited an important essay, “International Law and Human Rights: the Case of Women’s Rights,” by Noreen Burrows from the University of Glasgow, who pointed out that
the history of the struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus. The more recent struggle for women’s rights has been a struggle to eliminate discrimination, to achieve a place for women in a man’s world, to develop a set of legislative reforms in order to place women in the same position as men (pp. 81-82). It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women’s needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being.
I believe it is because of Justice Bertha Wilson’s statements that we are able, today, to celebrate 20 years of reproductive freedom in Canada. I extend a great thank you to the late Justice Bertha Wilson, to Dr. Henry Morgentaler, and to the thousands of women and supportive men who worked together to gain this fundamental freedom for Canadian women.