Cover Image: Colour photograph of International Women's Day March in Toronto (1983). Photographed by Nancy Adamson, from the CWMA Collection (10-001), box 134, file 5, Archives and Special Collections, University of Ottawa.
***Note on language: To avoid historical anachronism, this section of the exhibit uses the term "women/ woman" to describe the targets of reproductive legislation. The author would like to acknowledge that issues of reproductive justice also effect trans, non-binary, and gender non-conforming people.
Although reproductive legislation had been addressed only briefly at the first-ever conference on Women and the Law in 1974, the following year would see NAWL holding an emergency workshop on abortion during their inaugural conference on Women and Work. Demonstrating attendees' grassroots interest in the issue, the subsequent conference report noted that the emergency workshop was “a very large group.” [1]
As the organization matured, reproductive legislation would become one of NAWL’s primary concerns, and its caucuses often served as indispensable legislative guides for pro-choice organizations and activists. The heated debate surrounding abortion also led to new challenges, sometimes resulting in conflict between members who were vehemently pro-choice, and members who cautioned against NAWL becoming a single-issue organization.
This year, in partnership with NAWL, the University of Ottawa Archives and Special Collections celebrates NAWL’s 50th anniversary by delving into the organization’s history, including their landmark achievements, legal interventions, organizational challenges, and their undeniable impact on Canadian society. While this section of the exhibit will centre NAWL’s influence on Reproductive Justice, you may click the following links to learn about The Founding of NAWL, and their important contributions to legislation surrounding Women and Work, Violence Against Women, and Marriage Equality.
Resolutions passed at the 1975 abortion workshop reaffirmed NAWL’s commitment to strike abortion from the Criminal Code. This emergency workshop also led NAWL to vote "overwhelmingly” for the immediate resignation of then-Justice Minister Otto Lang. Women’s rights activists in this period were frequently dissatisfied with Lang, who had served as the keynote speaker for the previous year's conference on Women and the Law (though his speech was received with hisses and boos from the audience). In 1974, Lang had stated publicly that abortions were too easily available in Canada, resulting in a letter-writing campaign organized by The National Action Committee on the Status of Women (NAC) that inundated his office with over 20,000 responses. [2]
Left Image: Newspaper article and vandalized image of then-Justice Minister Otto Lang, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
At their inaugural conference in 1975, NAWL members once again faced ideological friction between themselves and their government-affiliated keynote speaker: Federal Environment Minister Jeanne Sauvé’s speech was met with jeers and hisses when she stated that she had “grave misgivings about any proposal to liberalize abortion laws” and asked the audience if “abortion and euthanasia [are] really that far apart?” Some members shouted back: “Yes, they are!” [3]
By 1977, NAWL would ratify several clear policy statements regarding freedom of choice in their official constitution, such as affiliating with the Canadian Abortion Rights Action League, lobbying to repeal Article 251 of the Criminal Code, and compiling and disseminating information on abortion law. The latter policy intended to educate politicians at the federal, provincial, and local levels, and to combat misrepresentation of the law by anti-abortion groups. [4]
Photo Credit: Pelletier, Johanne. Participants at the University of Toronto campus during the 1987 Toronto International Women's Day (IWD) demonstration. From the CWMA Collection (10-001) © Archives and Special Collections
At this time, Canadian law dictated that an abortion could only be performed in an accredited hospital, pending approval by that hospital’s therapeutic abortion committee, and only if the pregnancy presented significant risk to the mother’s health. This “liberalized” abortion law had been passed in 1969, replacing legislation which allowed for abortion only if the mother’s life was at risk. [4] In 1982, Sharon Walls of NAWL’s Victoria caucus wrote a discussion paper titled “Abortion Law and Improved Abortion Services” which outlined the legal and bureaucratic issues inherent to the “liberalized” system of committee approval.
Firstly, according to Walls, the legislation allowed hospitals to decide whether they would set up a therapeutic abortion committee, leading to dispersed and sporadic access for many Canadians. Walls noted that 51% of hospitals eligible to establish an abortion committee in 1976 chose not to do so based on “professional ethics, religious affiliation of the hospital, and a desire to avoid conflict.” Similarly, Walls argued that transferring such decisions to the local level was a “common tactic for government when dealing with issues where there is some question of moral controversy.” [5]
“Another problem associated with the local option,” stated Walls, “is the relatively frequent attempts by small but well-organized groups of anti-abortionists to gain control of a hospital board and curtail or abolish abortions. While board members cannot intervene in the medical decision of a therapeutic abortion committee, they do determine whether a committee will be appointed, and if so, who will be its members. If a majority of board members are opposed to abortion, they can therefore shut down most, if not all, such activity at the hospital.” In Walls’ opinion, federal legislation was deliberately imprecise, allowing the government to foist responsibility for women’s rights onto local hospital committees with widely divergent definitions of what constituted “health.” [5]
Right Image: A flyer published by the Abortion and Contraception Committee of Toronto which outlines problems with the therapeutic committee system (1977). From the CWMA collection (10-001) at University of Ottawa Archives and Special Collections
Despite these challenges, Walls also cautioned activists against focusing on simple repeal of the criminal law:
It has been popular rhetoric to call for the repeal of the abortion law ever since it was enacted in 1969. Proponents of abortion law reform sometimes fail to recognize that they are dealing with an issue that, in Canada, is within federal jurisdiction in criminal aspects and provincial jurisdiction in its health aspects. Because of this division of responsibilities, repeal of federal legislation would not necessarily make abortion more widely available. In the absence of federal regulation, provinces would almost certainly feel compelled to regulate the provision of abortion under their health jurisdiction... If Federal legislation was removed, some provinces would impose criteria for women to meet and administrative procedures for women to follow, that would result in greater curtailment and of and disparity in abortion services.” [5]
Throughout this period, NAWL members acted in local and provincial caucuses to struggle against abortion legislation which they criticized as “vague and ambiguous,” especially because “health” in the federal legislation was ill-defined and allowed for both liberal and conservative interpretations of Section 251. In 1979, NAWL’s Manitoba caucus helped to establish the Coalition in Support of the Manitoba Center for Reproductive Health, in response to a Winnipeg hospital's announcement that it would deny abortion services to 95% of women beginning on July 1. [4]
Similarly, in 1980, the PEI caucus went head-to-head with the anti-choice Right to Life organization in the battle for the establishment of a therapeutic abortion committee at Charlottetown hospital, lobbying and collecting signatures. [4] As Walls would later explain in her report, vague federal legislation led to entrenched inequalities between the women in different provinces, some of which are still being felt today. [5] In response, NAWL members deployed their knowledge of federal, provincial, and local legislation to assist activist groups, such as CARAL, in navigating the legislative and bureaucratic minefield of abortion law.
Left Image: NAWL Press Release, "Atlantic Women Denied Abortion Services," 22 June 1989, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
By the early 1980s, increased publicity on abortion activist and physician Dr. Henry Morgentaler turned reproductive justice into a highly controversial and volatile issue throughout the country. The contentious nature of abortion legislation was reflected by debate within NAWL itself; in 1983, the organization passed a resolution on “Prerequisite to membership,” which required that prospective members sign a statement affirming their belief in freedom of choice. [5] The resolution read as follows:
WHEREAS the right to women’s reproductive choice is a fundamental tenet of NAWL policy;
AND WHEREAS belief in this principle should be a prerequisite to NAWL membership;
BE IT RESOLVED that all applicants for NAWL membership be required to sign an application for indicating that they believe in and are committed to the principle of “women’s right to reproductive freedom of choice” as a prerequisite to being a NAWL member. [5]
Reflecting wider concerns and debate within the membership, NAWL’s November 1984 newsletter published two opposing viewpoints on the above resolution. NAWL member Mona Brown supported the prerequisite for membership, citing concerns of anti-choice infiltration:
Right Image: NAWL membership form with the Reproductive Justice membership prerequisite highlighted in yellow, c. 1980s, box 37, file 2, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
An acknowledged and vocal anti-choice leader attended a general meeting of the local caucus where the agenda included plans and strategies for raising money for Morgentaler's defense, plans with respect to the filing of a Statement of Claim for a declaration that Section 251 violated the Charter of Rights, a report to members on an analysis of Morgentaler's chances, and an analysis of the Borowski challenge. The anti-choice member’s presence and membership was called into issue. She was, in fact, a paid-up member, but had failed to sign the declaration and refused to sign same when confronted on the issue. Consequently, her membership was refunded, and she was asked to leave (Upon being questioned as to why she had attended, she openly admitted that she was there to spy on our plans and report back to the anti-choice camp). Had NAWL not had the declaration to fall back on, our meeting would have been completely disrupted." [5]
In the same newsletter, NAWL member Phyllis McRae presented an alternative opinion, arguing that a public pro-choice declaration would exclude members who were otherwise committed to NAWL’s goals.
In fact, NAWL membership had declined from 1983 to 1984, and McRae argued that many of these former members found the signature requirement to be “repugnant.” Most of these former members, McRae claimed, were pro-choice individuals who did not feel inclined to sign a public statement of their personal beliefs. According to her, “the idea that NAWL is at risk of invasion and subversion by anti-choice guerillas is paranoic nonsense. If the anti-choice forces did want to infiltrate NAWL, they certainly would not be deterred by a simple statement on the membership forms.” [5]
Left Image: National Association of Women and the Law, “Draft Report on NAWL’s Historical Policy Regarding Reproductive Freedom for Women,” box 37, file 2, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
Furthermore, McRae argued, such declarations hindered NAWL’s goal of diversifying its membership by excluding members with other cultural beliefs, such as Native women who were committed to their cultural role as head of family, community, and givers of life. Ultimately, she concluded,
NAWL does not help the pro-choice cause by whittling its numbers to a hard core of single-issue people whose ideology is pure but whose influence is minimal. NAWL is not and has never been a single-issue organization. It cannot be effective in fighting for women’s rights if it becomes one.” [5]
This internal conflict over the membership prerequisite resolution illustrates the difficulty NAWL faced in balancing its other values and commitments with the hotly disputed issue of abortion. Ultimately, NAWL would strive to retain this balance despite the membership prerequisite, and frequently renewed their commitment to reproductive justice during subsequent gatherings and conferences. In 1983, the Toronto caucus lobbied to have an independent abortion clinic in their city, working closely with the Ontario Coalition for Abortion Clinics and lobbying for support. In the same year, an abortion clinic in Winnipeg (which the Manitoba caucus had helped to establish) had to be closed due to a series of police raids. During these raids, Dr. Morgentaler, Dr. Scott (another pro-choice physician), and six women staff members faced charges of conspiring to procure abortions. [4]
Two years later, NAWL held a conference specifically themed around Reproductive Justice, titled “Who’s in Control? Legal Implications of Reproduction and Technology,” during which keynote speaker, midwife, and political science PhD Mary O’Brien gave a talk on “The State and Reproductive Freedom” (without any hisses or jeers from the assembled NAWL audience). [6]
In 1985, the national organization passed a further resolution to support Dr. Morgentaler and his staff, who were embroiled in legal proceedings and court challenges in his clinics across the country. Likewise, the Saskatchewan caucus became actively involved in fighting Bill 53, a private member’s bill from a conservative back bencher which would have required that a husband consent to his wife’s abortion. [4]
Left Image: Conference Program. Who’s In Control? Legal Implications of Reproductive Technology, Ottawa, ON, 21-24 February 1985, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
In 1986, Joe Borowski challenged Canadian abortion laws at the Saskatchewan Court of Appeal, arguing that the 1969 abortion legislation was in fact too liberal, and that the human fetus should be protected by the Charter in sections 7 and 15. Later that year, MP Gus Mitges introduced a private members’ bill to amend section 7 of the Charter to include the “human fetus or unborn being.” Significantly, section 7 guarantees “life, liberty, and security of the person” to all people living in Canada, and the inclusion of fetal life would have major ramifications for the country’s pregnant citizens. In response, NAWL mobilized nationally and wrote to all Members of Parliament, urging them to vote against the motion and arguing that the bill would serve to make a woman the “biological and legal captive of her own pregnancy.” [4]
Ultimately, Borowski’s fetal personhood case would wind its way up to the Supreme Court of Canada, where it was dismissed as moot following the conclusion of the Morgentaler case in January 1988, when the SCC found that section 251 of the Criminal Code violated women's Charter rights. Although NAWL and their fellow activists celebrated the victory of legalized abortion in Canada, NAWL continued to struggle against legislative attempts to codify fetal personhood. For example, in 1989, The Law Reform Commission of Canada recommended that the federal government create a new criminal offense for harm or destruction to the fetus. Responding via press release, NAWL steering committee member Brigitte Morneau made the following statement:
Right: NAWL Press Release, "NAWL Opposes Law Reform Commission Recommendations on Fetus," 23 Feb 1989, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
This trend to view the pregnant woman and her fetus as separate entities is very disturbing. In fact, the woman and her fetus cannot be separated [as legal entities] ... it is more reasonable to see harm to the fetus as being harm to the mother. The woman should not be treated merely as a living incubator.” [7]
In addition to legal challenges which sought to define fetal personhood, NAWL would also comment on several court cases that sought to codify “father’s rights”: In Manitoba, Ontario, and Quebec in 1989, ex-boyfriends would attempt to get court injunctions to stop their former girlfriends’ abortions. [4]
The most famous of these cases occurred in Quebec, when Chantal Daigle was refused an abortion under an injunction by her former boyfriend, Jean-Guy Tremblay, who had a history of domestic violence and abuse. [8] NAWL’s Quebec caucus prepared numerous briefs and public comments on the court's decision, and helped to prepare the factum which would be used to intervene on behalf of the Women's Legal Education and Action Fund (LEAF). [4]
Left Image: Notes on the "dangerous offender" status of Jean-Guy Tremblay, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
A NAWL press release published in July 1989 described the Daigle case as an “aberration in law” that “brings into question the integrity of the judicial system” and “places pregnant women in Quebec beyond the protection of the Canadian Charter of Rights and Freedoms.” [9]
During the eventual hearing of Daigle’s case at the SCC in August, the court learned that Daigle had already travelled to the United States to obtain an abortion, but it nonetheless overturned the injunction sought by her ex-boyfriend. Ultimately, the conclusion of the Daigle case reflected NAWL spokesperson Judith Allen’s assertion in their July 1989 press release:
You can harass women outside clinics and hospitals; you can obtain unlawful and unconstitutional decisions; you can attempt to force governments to pass unlawful and unconstitutional laws. You can force free votes and referenda and pay for Law Reform Commission reports, but no man, no court, no government, and no god can force a woman to carry a fetus to term against her will.” [9]
In referencing “unconstitutional laws,” Allen’s statement took a stab at the federal government’s introduction of Bill C-43, championed by then-Justice Minister Kim Campbell, which sought to restore the 1969 law by recriminalizing abortion unless pregnancy was a threat to the woman’s health. In May 1990, the House of Commons passed Bill C-43 and sent legislation to the Senate for approval. It was narrowly defeated by a tie vote in 1991. [10]
During this time, NAWL put significant effort into combatting Bill C-43, writing that “abortion is both a moral issue and a health issue but the morality of some must not be imposed on others. This is one of the most basic tenets of a liberal democracy. A further legislative initiative by the federal government would demonstrate a profound distrust of Canadian women, in general, and their ability to make a moral decision, in particular. Women’s health and autonomy are not appropriate areas of regulation through criminal law.” [11]
Right Image: NAWL Press Release, "Government Claims on Abortion Law Debunked," 4 May 1990, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
NAWL heavily criticized the Law Reform Commission's Paper, “Crimes Against the Fetus,” on which Bill C-43 had been based, describing it as “an insult to Canadian women.” In another press release about the proposed legislation, NAWL working group member Freya Kristjanson stated that “the scope of the proposed criminal liability is so broad and so vague that many persons are brought within the purview of the crime... proposed sections would allow for the possibility of charging pregnant women with crimes of lifestyle behavior such as drinking alcohol or smoking. Forced medical treatment or incarceration of pregnant women would be a very real possibility under this legislation.” [12]
The defeat of Bill C-43 in 1991 would lead to the legislative treatment of abortion as a medical procedure like any other. However, NAWL continued to push the federal government to increase abortion access and to prevent the provinces from violating women’s charter rights by restricting the procedure. Nearly one decade later, NAWL would again fight against the very real possibility that pregnant women could be controlled and detained based on the fraught concept of fetal rights, as Freya Kristjanson had predicted:
Cristin Schmitz, "SCC to grapple with controversial spring docket," The Lawyers Weekly, 18 April 1997, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
In 1997, a coalition of Manitoba women’s groups including the Native Women’s Transition Center, the Métis Women’s Association, the Manitoba Association of Rights and Liberties, and the Women's Health clinic requested that NAWL prepare a statement related to the Manitoba court case “Winnipeg Child and Family Services v. G.” In this case, a court order was issued which granted Winnipeg Child and Family Service parens patriae over the fetus of a 22-year-old Indigenous woman, which gave them authority to detain her and to direct her medical and therapeutic treatment for the duration of her pregnancy. [13]
NAWL believed that this case set an incredibly dangerous legal precedent for pregnant women, and especially for Indigenous and other marginalized women who were overrepresented in family service cases across the country. NAWL argued that the decision gave courts undue power in dictating how a woman must live her life while pregnant, and that “the right to refuse medical treatment persists during pregnancy and extends to all forms of treatment, including those which may be of benefit to the fetus.” [13] In a press release published on June 17, 1997, NAWL explained the importance of the G case to women’s equality rights in Canada:
NAWL has long held the view that women’s juridical autonomy cannot be compromised at pregnancy. To relax this principle would be to diminish her legal personhood during pregnancy and place the state’s right to intervene above those of the mother, casting her in the limited role of ‘child bearer.’ Because women are uniquely able to bear children and give birth, to suspend rights in a time of pregnancy is to discriminate on the basis of sex.” [14]
In the end, the Supreme Court agreed with NAWL, and concluded that “to extend the court’s parens patriae jurisdiction to permit protection of unborn children would require a major change to the law of parens patriae ... A pregnant woman and her unborn child are one and to make orders protecting fetuses would radically impinge on the fundamental liberties of the mother, both as to lifestyle choices and how and as to where she chooses to live and be.” [15]
As these cases demonstrate, even after the landmark SCC decision of 1988 which removed abortion from the Criminal Code, NAWL and other women’s groups had to navigate complex legal terrain which sought to grant legal rights to the human fetus. However, these cases also illustrate the profound importance of the Charter of Rights and Freedoms in gaining and preserving equality rights for women in Canada.
Throughout NAWL’s legal battles involving labour rights, violence against women, and women’s bodily autonomy, NAWL also had to ensure that legal protections for women did not exclude other marginalized groups, such as Indigenous women, racialized women, lesbians, and trans women. While this section has focused on reproductive justice, you can CLICK HERE to read the conclusion of our exhibit, which examines NAWL’s work around Marriage Equality, including Indigenous women’s status and the legalization of same-sex marriage.
This exhibit was created by Meghan Tibbits-Lamirande, ARCS storyteller-in-residence
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WORKS CITED
[1] Conference Program. National Conference on the Law and Women. Windsor, ON, 14-16 March 1974, box 9, file 11, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[2] University of New Brunswick, “Milestones in Canadian Women's History: the 1970's,” PAR-L, PAR-L (unb.ca)
[3] Hryciuk, Dennis. "Jeanne Sauvé jeered at conference," The Ottawa Journal, 3 Feb 1975, box 2, file 2, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[4] National Association of Women and the Law, “Draft Report on NAWL’s Historical Policy Regarding Reproductive Freedom for Women,” box 37, file 2, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[5] Walls, Sharon. “Abortion Law and Improved Abortion Services,” NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[6] National Association of Women and the Law. Conference Program. Who’s In Control? Legal Implications of Reproductive Technology, Ottawa, ON, 21-24 February 1985, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[7] NAWL Press Release, "NAWL Opposes Law Reform Commission Recommendations on Fetus," 23 Feb 1989, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[8] Mahoney, Jill. “Judge Rules Tremblay not Dangerous Offender,” Alberta Bureau, 4 August 2000, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[9] NAWL Press Release, "Daigle Case: Aberration in Law," 27 July 1989, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[10] The Pro-Choice Action Network, “A History of Abortion in Canada,” print-out, box 44, file 11, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[11] NAWL Press Release, "For Immediate Release: No New Legislation," 2 October 1989, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[12] NAWL Press Release, "Law Reform Commission's 'Crimes Against the Foetus' An Insult to Canadian Women," 29 November 1989, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[13] The National Association of Women and the Law. “Notes on Winnipeg Child and Family Services (Northwest Area) v. G (D. F.) Supreme Court of Canada on Appeal from the Court of Appeal for Manitoba,” box 36, file 7, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[14] NAWL Press Release, The "G" Case, 1 November 1997, box 24, file 8, NAWL fonds (10-036), Archives and Special Collections, University of Ottawa.
[15] Supreme Court Judgements, “Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.),” 31 October 1997, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1562/index.do