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Canada: History and strategies in the fight for reproductive justice

 

 

By Jocelyn Piercy

 

August 7, 2016 -- Links International Journal of Socialist Renewal -- When I think of the struggles in Toronto in the 1980s and ’90s for sexual and reproductive justice or liberation (that is, for more than just legal or formal rights), I think of the importance of having AIDS Action Now and the Ontario Coalition for Abortion Clinics (OCAC) as socialist feminist leaders in these respective struggles.

 

Both struggles were pitted against reactionary forces such as Campaign Life, Operation Rescue, and those led by Rev. Ken Campbell and Cardinal Carter, which one could argue actually helped galvanize and mobilize these movements. And both struggles took up strategies directly aimed at exposing power relations in society and the nature of the state. However, one of the challenges that comes with struggles against the Right is how this allows the state to set itself up as the neutral compromiser between two extreme positions, even at a time when 70-75% of the Canadian public supported the pro-choice position.

 

I want to talk a bit about the history of the abortion rights movement in Canada and strategies taken to try to influence and mobilize public opinion and not leave any attack unchallenged. The goal of the movement was, yes, to decriminalize and deregulate women’s reproductive and sexual lives, but we also tried to always frame demands for access to services within the context of the state’s unequal treatment and repression of women of colour and indigenous, immigrant, poor and disabled women.

 

I would like to start with the 1973 Roe v. Wade Supreme Court decision in the US in which abortion rights there were gained as an individual right (to privacy actually), but only if you could pay for it with no obligation for the state to ensure access to services, so not in actuality a ‘right’ for all. As is the case in many countries, the law was positioned as a balance between state protection of opposing rights – women’s rights receiving more protection in the first trimester and the fetus’s rights in the third trimester. Similarly, I think of the regulation around HIV testing and disclosure that were positioned as a balance between the rights of a person with AIDS (PWA) and non-PWAs. In both cases the state reinforces its position as a neutral body seeking a compromise between competing rights. Further, as technologies progressed and conditions of fetus viability changed, the basis for a gestation age law was undermined and in 1989 a US Supreme Court decision allowed states to enact more restrictive state measures.

 

Meanwhile, in Canada abortions were illegal under all circumstances for about 100 years until 1969, when the law was liberalized (along with the decriminalization of contraceptives and gay sex) by former Prime Minister Pierre Trudeau’s “the state has no place in the bedrooms of the nation” legislation. But the liberalized abortion legislation detailed the rights, responsibility and authority of the physicians over the procedure, allowing abortions to be performed only in hospitals and only if three physicians, who made up a therapeutic abortion committee or TAC, agreed that continuation of pregnancy would endanger a woman’s life or health. It was silent on the rights of women. Federal reports over the years (the Badgley report in 1977 and Powell report in 1987) documented the inequality of access across the country under this legislation. Fully one half of the women who had abortions in 1987 had to leave their own communities as less than half of all hospitals performed any abortions at all and many did not even have TACs, and women had to contact on average from five to seven medical professionals to even get that far. So there was access for those who had their own gynaecologists, money, ability to travel, and connections. As can be imagined, Canada also had a very high rate of second trimester abortions.

 

So, women fought back. Shortly after the law was “liberalized”, 500 women formed an abortion caravan in 1970, starting in Vancouver and travelling to Ottawa with coffins and coat hangers. Three dozen women chained themselves to their seats in the House of Parliament as they demanded that the Prime Minister review the abortion law, disrupting parliament and causing it to adjourn.

 

In 1973, Henry Morgentaler started publicly performing abortions. Over the next 15 years he was charged and acquitted by three different juries, jailed once upon appeal by a judge, and his legal challenge of the law was taken up by the Canadian Association for Repeal of the Abortion Law (CARAL) in 1974. CARAL was formed by Norma Scarborough and others in Toronto, and included my mother in Ottawa, to protest the incarceration of Morgentaler. They viewed the right to safe, legal abortion as a human right and therefore pursued a legal strategy, lobbying the government to obtain such rights (later changing their name to Canadian Abortion Rights Action League once the law was repealed). In my analysis this strategy has the inherent danger of leaving the neutral character of the state and its legal and medical institutions unchallenged, and places reproductive justice in a narrow framework of abortion rights.

 

OCAC was formed in 1982 by health care workers from the Birth Control & VD Information Center, Immigrant Women’s Health Center, Hassle Free Health Clinic, and other healthcare workers in Toronto who took the position that women’s unequal place in society was enforced by state repression and policing of bodies, especially racialized and disenfranchised bodies. So we needed a strategy that went beyond repealing the law and gaining legal rights, which are only really gained in practice this way by the professional and ruling classes. Three main strategies emerged from such an approach.

 

1. Access

 

Although a “pro-choice” movement shifts the framework of debate from “when does life start?” to women’s right to control their bodies, “choice” is commonly stripped clean of power relations and in the neoliberal era is associated with the reduction of democracy to choice in the marketplace. So OCAC took up the strategy of access instead, consistently demanding that the state be obligated to provide:

 

- full access to free contraception and abortion services in one’s own language and community, and not under medical control given the racist and class-biased assumptions and practices of that institution which included forced or coerced sterilization (sometimes a pre-requisite to getting an abortion) which disproportionately targets indigenous, black and disabled women; so to this end, deregulate pregnancy and childbirth.

 

- support for women to determine for themselves when, if, and how to have children, including access to midwifery services, free childcare and parental leave, affordable housing, employment equity, and an end to the harassment of indigenous and Black mothers by courts and Children’s Aid where they are overrepresented in the systems.

 

- support to live openly as lesbians (and, we now know, as transgender people).

 

2. Broad alliances

 

We built a broad alliance across social movements so that this access approach became embedded in other movements, and knowledge generated in communities of struggle moved into the reproductive rights movement, such as when the Black women’s movement in the US argued for a broader approach to reproductive justice. We campaigned for access agendas to be taken up broadly so that when a new law was tabled in 1989, even large mainstream organizations opposed it, such as the Canadian Labour Congress, National Organization of Immigrant and Visible Minority Women, National Action Committee on the Status of Women, Planned Parenthood, the Canadian Federation of Students, New Democratic Party, and even the Canadian Medical Association. We built our alliance to oppose theirs (church and state). And I think this is why no ruling party in the Canadian parliament has been willing to introduce a new law since 1990, even when the majority of their MPs are anti-choice.

 

3. Clinics

 

OCAC’s strategy was to go on the offensive and directly challenge the way state-regulated institutions like hospitals control healthcare and regulate women’s access to it. To this end we followed Quebec’s community-controlled publicly-funded health care model, and supported Morgentaler when he opened a then illegal clinic to perform abortions on Harbord Street in Toronto in 1983. While CARAL focused at the time on getting rid of TACs to gain better hospital access to abortions, OCAC felt that a clinic strategy provided a broader perspective on women’s access to, and control of, reproductive services (although CARAL and OCAC continued to work closely together throughout the struggle). The police refused to protect women’s right to get health care at the clinic, so OCAC organized a long-standing community escort service and safe houses to help women get past the anti-choice harassment into the clinic. This gave us confidence that grassroots community organizing can ensure the safety of a community, rather than increased policing which we know makes many Black, indigenous and disenfranchised communities less safe (but was still unfortunately called for by Gay Pride organizers across North America this year after the Orlando shooting). In many different ways the clinic became a symbol of women’s resistance to control of our bodies by either the state or the “Religious Right”, and throughout the struggle the community would gather outside the clinic within minutes of either an attack or a victory.

 

One such victory occurred on January 28, 1988, when the Supreme Court of Canada ruled on the case of doctors Morgentaler, Scott and Smoling, who had been acquitted on charges at the Toronto clinic but whose acquittal had been appealed up to the Supreme Court. The ruling struck down the abortion law, stating that forcing women to carry a fetus to term represented state interference in the bodily integrity of women, now protected by Section 7 of the 1982 Charter of Rights and Freedoms; the right to life, liberty and integrity of persons. However, in November 1989, the Conservative federal government introduced Bill C43, which was positioned as a compromise between the two extremes: pro-choice and anti-choice. It stated that abortions were only to be performed if a doctor judged that a pregnancy threatened the life or health of a woman. In any other case, which could be contended by an outside party, a woman and her doctor could be imprisoned for up to two years.

 

As it happens, in the summer of 1989 a man named Jean-Guy Tremblay was granted an injunction in Quebec preventing his ex-girlfriend Chantal Daigle from getting an abortion, even after he admitted to physical abuse in the relationship. The Quebec Court of Appeal ruled the fetus was “a distinct human entity”, a ruling which was eventually overturned by Canada’s Supreme Court, but in the interim Chantal was forced to go to Boston to get an abortion. This helped galvanize people against the new law, as did the move earlier that spring by British Columbia Premier Vander Zalm, who had attempted to remove medical coverage for all abortions performed in the province, something that was fought and stopped by the pro-choice movement in BC.

 

In the fall of 1990, 30 communities across Canada took part in the “Marching for Women’s Lives, No New Abortion Law” rallies, with 3000 marching in Toronto. A second abortion caravan was organized, building on the history of the struggle 40 years later. At this time there was also an unsuccessful appeal to Canada’s Supreme Court by the Right seeking to have the fetus constitutionally declared a person (Joe Borowski’s appeal), while OCAC countered with demands of access for women of colour and poor, rural, young, immigrant, indigenous and disabled women, who suffer most when access is inhibited. Bill C43 passed in parliament but was defeated on a tie vote in the senate, and no legislation has been introduced since.

 

To put this struggle in the context of its time, in the year after Bill C43 was introduced there was widespread outrage and fight backs against both the Right and a repressive state. This included the Women Against Violence Against Women coalition, formed after the 1989 killing of 14 “feminists” at École Polytechnique in Montreal. 1990 saw the Oka blockade of a golf course development threatening traditional native land by Mohawks of Kanehsatàke, Quebec and the massive military retaliation and violence there against indigenous people. The Black Action Defence Committee in Toronto protested the police killings of Sophia Cook, Michael Wade Lawson, Lester Donaldson, Buddy Evans, Albert Johnson, Anthony Griffin and JJ Harper, and Outrage Canada in Edmonton, and Lesbians and Gays Against Police Violence in Montreal, were formed in response to police violence against the LGBT communities in those cities. There were also daily battles outside the Morgentaler clinic in Toronto as the Right organized “operation rescues” to block women from entering the clinic. As the police refused to move the Right to allow women access to the clinic, the Left took to waking up at dawn to occupy the steps and front entrance of the clinic before the Right showed up. During this time there were many well-attended reproductive and sexual rights rallies, such as in 1992 when OCAC, AIDS Action Now and Queer Nation teamed up to oppose the anti-choice, anti-homosexuality rhetoric of Cardinal Carter and Rev. Ken Campbell. Attacks from the Right continued throughout the 1990s including the firebombing of the Morgentaler clinic on Harbord in 1992 in which it was completely destroyed, and we witnessed three separate shootings of Canadian doctors who performed abortions in the mid-1990s.

 

However, it seems to me that the mobilization of people who took to the streets to fight for sexual and reproductive self-determination, and the strength of alliances across struggles and society, persuaded the incumbent and future governments that they would not be able to successfully introduce new legislation in this area. Canada remains one of the few countries today that has no legislation governing women’s access to abortion. The Canada Health Act continues to spell out the responsibility of the provinces to provide equal access to health care for all and almost all provinces have publically funded free standing abortion clinics. However, access outside of urban areas is still limited and neoliberal state cuts to health care and other public services targets and reduces access for the poorest and most disenfranchised populations. Until all people have access in actuality to the resources, services and support they need to have children when and if they choose, under no threat of harassment or policing by the state, the struggle must continue.

 

Presentation by Jocelyn Piercy as part of a Sexual and Reproductive Liberation panel at Ideas Left Outside 2016, Elbow Lake, Canada. It draws on analyses published in Rebel Girls' Rag, a Forum of Women's Resistance, 1987 to 1992, particularly those of Carolyn Egan, B. Lee, and Mary Gellatly.

 

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