Therapeutic Abortion Committee - Canadian Law

Canadian Law

In Canada, from 1969 until 1988, under the amendment to Section 251 (later 287) of the Criminal Code one of the requirements for an abortion to be lawful was that it be ruled to be medically necessary to the health of the woman by a Therapeutic Abortion Committee of a hospital.

The legal term for abortion was "procuring miscarriage", which was addressed by the Criminal Code as follows:

287. (1) 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 liable to imprisonment for life.

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

which then went on to say:

(4) Subsections (1) and (2) do not apply to:

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or

(b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage,

if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed,

(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and

(d) has caused a copy of that certificate to be given to the qualified medical practitioner.

Before there were TACs and the change in the law, there was a similar process for approving abortions. These generally took place only when a woman's physical health was in great jeopardy. In order to make prosecution difficult, these decisions would be made by large numbers of doctors. Only three doctors were required to approve an abortion under the new law.

Abortion clinics were illegal under this law; in Québec only, authorities concluded in the 1970s that the law was unenforceable after a number of unsuccessful criminal cases against doctors. Most notably a Dr. Henry Morgentaler openly operated clinics as a form of civil disobedience in order to establish a judicial test case based on the legal defense of necessity.

In many cases, judges were willing to convict but juries were unwilling to condemn any qualified medical doctor acting in good faith with the intention to protect the health of a patient.

Even within the hospital system, there were great discrpancies between what different TAC's in different hospitals would be willing to consider a risk to a woman's health.

In some hospitals, mental health problems resulting from carrying a pregnancy to term were acceptable to the TAC as endangering a woman's health. This made abortion partially accessible (albeit with at best limited access and some rather unacceptable delays) in some communities as women could claim to be suicidal and on this basis insist that continuation of the unwanted pregnancy represented an imminent danger to mental health.

In other TAC's the law was interpreted much more closely, making it difficult to get an abortion in the hospital even if they did have a TAC.

In some cases, procedures required to protect a woman's life are not available during pregnancy. A prime example would be cancer treatments such as chemotherapy which would do extensive and irreversible harm to an embryo or foetus if done during pregnancy but which, if not done in a timely fashion, can allow the cancer to spread to a point at which the condition is fatal and no longer successfully medically treatable.

These were the cases which the TAC's were originally intended to address, but many hospitals were unwilling to perform abortions at all.

Hospitals had Therapeutic Abortion Committees only if they opted to provide abortions, and there was and is no requirement that they do so.

The end result was a very limited access to lawful abortion which varied widely from one town or province to another. Many towns and cities did not have any hospital that provided abortions.

The abortion legislation also violated the Canadian Charter of Rights and Freedoms which had been entrenched in the Canadian constitution as part of the patriation process by Prime Minister Pierre Elliott Trudeau in the early 1980s. As it severely infringed upon a woman's lawful right to security of the person by forcing her to carry an unwanted pregnancy to term, this section of the Criminal Code ultimately was struck down and invalidated by the Canadian judicial system.

One final legislative attempt to draft a similar law but in slightly modified form (requiring one doctor instead of three) was then narrowly defeated in a tie vote in the Canadian Senate, marking the end of criminalisation of abortion in Canada.

Nonetheless, many hospitals in Canada were founded or controlled by religious organisations such as the Roman Catholic Church; the beliefs and agenda of these organisations requires that they deny women access to abortion even after the Criminal Code restrictions on abortion were struck down as unlawful.