Former prime minister Brian Mulroney’s government considered introducing a resolution in the House of Commons in 1988 that would ban the abortion of a physically or mentally malformed “unborn child.”
This point was missing from the final text of the resolution that was eventually debated and voted down in the Commons on July 28 of that year, and had never been made public.
The minutes and background papers of the 17 cabinet meetings of 1988 in which abortion was raised were obtained by Canwest News Service under the Access to Information Act, which allows for their release only after 20 years have passed.
As well, the staunchest anti-abortion minister in the cabinet, Jake Epp, cited potential risks to the disabled and elderly if the abortion law was liberalized, while one unidentified minister "suggested that the government seriously consider ducking the issue."
Cabinet was responding to the Supreme Court of Canada's historic ruling on
Jan. 28 that year — one that overturned an
There have been no new laws passed regulating abortion in
Pat Carney, international trade minister in the Mulroney cabinet and a strong pro-choice advocate, has a very different recollection of the debate from the cabinet documents.
"I can assure you that the option you describe, re aborting the unfit, was never discussed at any cabinet meeting I attended, nor would it be," she wrote in an e-mail. "It is morally and politically repugnant. I wonder why it was even included in the background papers."
But Senator Lowell Murray, who was chair of the ad hoc cabinet committee on abortion in 1988, said in an interview that while he cannot recall the option being raised 21 years ago. "It strikes me as most likely it would have been raised . . . Apropos any inconsistency between my personal recollections and the cabinet minutes, the cabinet minutes on any point should be accepted as more reliable."
In 1988, the court ruling elated pro-choice advocates and devastated anti-abortionists. It also created a legal vacuum that left cabinet lost and bewildered. The topic has long been avoided by most mainstream politicians. The debate is even entirely absent from Mulroney's memoirs.
Barbara McDougall, the minister responsible for the status of women at the time, said that women did not, on balance, view the judgment as a victory. Rather, there was a sense of relief that the most restrictive elements of the law had been struck down.
The practical concern was that there was no legal definition of the time frame in which an abortion could be performed. Yet the health minister, Jake Epp, vocally defended rights for the fetus. Epp did not reply to requests for an interview and Mulroney declined to be interviewed. Joe Clark, justice minister at the time, would only reply "I'll let the cabinet record speak for itself."
At a meeting on
Epp objected that "the implications of such an approach were frightening, should a similar approach be taken for the elderly or the disabled."
At a meeting on March 17, the minutes said, two possible resolutions were presented. One part of the first resolution would "exclude physical or mental abnormalities of the unborn child as a reason for obtaining an abortion."
Murray, the Tory Senate leader, wanted this original resolution redrafted, which it later was, because, as the minutes note, he said "the government would look like fools if it passed a law that was subsequently thrown out by the Supreme Court."
The second milder resolution would permit abortion in the early stages if "the continuation of the pregnancy would or would be likely to endanger the woman's life or to seriously endanger her health."
There was "spirited discussion" on which resolution to choose.
"A Minister suggested that the government seriously consider ducking the issue. He felt there were no points to be gained as there was no consensus in the country, cabinet or in the caucus," the notes indicate from the unidentified minister.
Other ministers disagreed, arguing that if the issue was not settled before an election, party nomination meetings could be dominated by extremists from either side of the debate.
Another unidentified minister said: "The only way the government could handle this issue was to take the Supreme Court decision and hug it to its breast, quoting the decision at length."
The rejected draft resolution No. 1 would also ban abortion entirely unless two doctors stated that continuing a pregnancy would likely "endanger the life of the pregnant woman or seriously and substantially endanger her health," and the grounds for obtaining an abortion would not include the stress of the unexpected pregnancy, nor economic concerns.
In the final public text of the House resolution, this was modified to read that in the early stages only one doctor need certify that the continued pregnancy would likely "threaten her physical or mental well-being."
Some ministers supported a milder resolution, although reluctantly, "as it was their view that the decision on whether or not an abortion should be performed was really one only for a women and her doctor." They feared the Conservatives would lose the support of female voters and be judged poorly by generations of women if they passed any restrictive law.
"It had to be recognized that reintroducing legislation would be a step backward as it would put restrictions on women which they felt had finally disappeared on January 28th," the minutes note. "Women were responsible and would not all rush out to get abortions. Obviously women wanted children but in an atmosphere where they are in control."
Other ministers predicted that a stricter law might force poor Canadian
women who wanted illegal abortion to go "underground" while more
affluent ones could travel to the
At the next cabinet meeting, on March 24, two new resolutions were presented, a less restrictive version of No. 1, and a more restrictive version of No. 2 whereby mothers would need doctors' approval for an abortion in the early pregnancy stages as well. Mulroney believed most ministers preferred this last option.
Finally, on July 22, the Mulroney government introduced a new version of resolution number two in the House for a free vote, hoping the vote's result would guide the cabinet towards creating a new law.
Lengthy and passionate debates on the motion were held in the House. Ministers present were split down the middle, with none speaking up to defend the government resolution. Women in the Tory cabinet spoke in favour of pro-choice.
Mulroney was not present for the vote. In 1984 he had privately joked about his "courageous silence on abortion," and told the media in 1988 that, although he opposed "abortion on demand," he would allow it in certain cases: "incest, rape. There are others." He promised to be more specific when legislation was introduced.
Few had anticipated the strong support that was shown for the strictest pro-life resolutions, yet all sides of the abortion question claimed victory after the results. This all left the government with no consensus, no mandate to draft a new law, and no conceivable solution.
Parliament was then dissolved, and in the federal election of Nov. 21, the Tories were re-elected with their second, although reduced, majority mandate. In the campaign — no doubt to the Tories' great relief — the abortion issue was almost entirely eclipsed by the battle over the Canada-U.S. Free Trade Agreement.
Leslie Pal, political science professor at the
"It is interesting how frequently the caucus comes up in the discussion . . . it shows that even with a large majority, MPs in caucus do have influence."