Canada once nearly passed a restrictive abortion law. This is how it failed

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Pat Carney was the first woman to serve as MP for Vancouver Centre; the Progressive Conservative cabinet minister for energy, mines and resources and international trade; and president of the Treasury Board. She was also a senator from 1990 to 2008.

In the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade, many seem to assume that women’s rights to choose what happens to our bodies are invulnerable, protected under the Charter of Rights and Freedoms since our Supreme Court threw out existing abortion laws in the 1988 case of R. v. Morgentaler.

But in fact, the court sent the issue to Parliament to resolve, and in 1991, Canada came within a single vote of enshrining Bill C-43, An Act Respecting Abortion, passed in the House of Commons by Brian Mulroney’s Progressive Conservative government but dramatically killed in the Senate – the first major government bill to meet that fate in 30 years.

I know this firsthand. In the most chilling moment of my more than 26 years of parliamentary experience, I was the first Conservative senator to vote “nay” against my own government’s anti-abortion bill.

Unsealed cabinet documents show that Mr. Mulroney’s ministers were split on the proposed legislation, which would have sentenced doctors to prison terms for providing abortions where a woman’s health was not at risk. Some ministers argued that the unrestricted abortion of unborn fetuses could set precedents that could even be used against seniors or Canadians with disabilities. Others, such as my long-time colleague Barbara McDougall and Kim Campbell, who succeeded me as MP for Vancouver Centre, argued women should face few or no restrictions to accessing abortion.

But Bill C-43 was basically unchanged when it was narrowly passed by the House, with 140 MPs voting in favour and 131 against in a rare free vote.

It was then sent to the Senate for study and vote. This is normally a routine if complex “Ping-Pong” procedure between the two Houses of Parliament: Any proposed amendments passed by the Senate are sent to the House for approval or rejection, before being referred back to the Senate for another vote. If a majority of senators support the legislation, amended or not, it is sent to the Governor-General for royal assent and becomes law. In the event of a tied vote, the bill fails.

In January, 1991, I was in Vancouver for medical treatment. When my staff phoned to tell me that Bill C-43 was before the Senate I instructed them to inform the Senate leader’s office that I was returning to Ottawa for the vote.

There was no doubt about how I would vote. I had told my voters that I believed a decision on an abortion was the right of a woman, her conscience and her doctors. For personal reasons, I would not have an abortion, but that was my choice; I knew other women had their own reasons to make a different one. Behind every abortion statistic there is a story of fear, anguish, guilt, remorse and other emotions.

In addition, to appease the conflicting views in the Conservative cabinet and caucus, the legislation was so poorly drafted it could not be fairly enforced. It permitted abortions early in the pregnancy but not later, and the timing of restrictions was vague. Many doctors told me that the language was so murky they would be unwilling to perform the procedure in case they incurred liabilities.

I imagined a young woman in a remote and rural area, far from medical or spiritual services. What real choice would she have?

The tension in my office before the Senate vote was palpable. Calls flooded in, including one from Ms. Campbell, who, as justice minister, was tasked with steering the bill through Parliament. She urged me to support the bill. I was stunned. “Heavy, heavy pressure,” I wrote in my diary.

The bells rang for the vote. Senators streamed into the Red Chamber. The suspense was stomach-churning.

When Senate Speaker Guy Charbonneau called for the vote on Bill C-43, most of the opposition Liberal senators stood and voted “nay.” Although Mr. Mulroney had called for a free vote in the House and in the Senate (except for his cabinet ministers), Conservative senators were not expected to vote down their own government’s bill. We had the option to simply abstain.

But when the Speaker turned to senators on the government side and asked me how I voted, I pushed myself up on my feet and said: “nay.” Heads turned.

A few other government senators stood and voted “nay” too. Several male senators, who had felt abortion was a “women’s issue,” told me they’d planned to abstain until they saw me vote no. Then they did, too.

We held our breaths as the clerks tallied the nays and yeas. The Speaker announced the result: 43-43, a tie. Mr. Charbonneau chose not to exercise his right to break a tie.

Bill C-43 was dead.

After the vote, I returned to my office to sip tea and await my fate. Over the next few days, I was removed from key Senate committee positions, and became subjected to malicious rumours and reports.

But one Conservative who was not angry with me was Mr. Mulroney. When tentatively asked by a mutual friend how he felt about my vote, he replied: “No, I knew Pat would vote against it because she has always voted against proposed anti-abortion legislation when the issue has been raised in the past.”

Since Bill C-43 failed, no anti-abortion measures have been successfully introduced in Parliament. Successive governments, both Liberal and Conservative, have expressed no interest in reviving the debate.

But Canadians shouldn’t become complacent. Canada is one of the few countries in the world that does not have laws restricting abortion, but we are always at risk of seeing potential new abortion laws passed by future parliaments. Political turbulence could also again split the country.

In my view, there are other ways to promote safe pregnancies and wanted children with laws that give women equal treatment. So far, Parliament has voted that anti-abortion laws are not among them – but only vigilance, and a sense of history, can keep it that way.

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