I’ll never forget the day the Supreme Court struck down the abortion law, January 28, 1988. It was freezing cold. A group of pro-choice activists were standing in front of the clinic along with a mob of media waiting to hear the news from our comrades in Ottawa. They were supposed to call the clinic as soon as the decision came down and the clinic staff would let us know. We didn’t have cell phones in those days.

A reporter called me aside and said she had just heard on her radio that the Supreme Court had struck down the law on the grounds that it interfered with women’s right to security of the person. I didn’t believe her. We thought the Court might very well strike down the law but we figured it would be on the technical grounds of lack of equal access. A decision based on the Charter guarantee of security of the person was too much to hope for. After all, the major argument of the pro-choice movement was that a woman had the right to control her own body and this was close.

Indeed the majority decision written by Chief Justice Brian Dickson stated:

“State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 (the old abortion law) clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.”

It was a profound and incredibly long lasting victory that for us was of equal significance to the winning of the right to vote a couple of generations before. In essence, the highest court of the land said that the abortion law violated women’s right to control her own body free from state interference.

Voting with the majority, Justice Bertha Wilson went much further. It was really the first time we saw a feminist interpretation of law at the highest level.

“Section 251 is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman’s capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman’s physical ‘person.'”

Wilson added that it was likely impossible for a man even to understand the dilemma of a pregnant woman contemplating an abortion, “not just because it is outside the realm of his personal experience âe” but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche, which are at the heart of the dilemma.”

Morgentaler was acquitted by a jury in Toronto in 1984, one year before the Equality Rights provision of the Charter was proclaimed, so his lawyer Morris Manning had to rely on other provisions of the Charter for his arguments. Despite the battle for equality rights waged by the women’s movement in English Canada, there is no doubt that the Morgentaler decision was the most important women’s equality decision ever decided by the Court.

After eight years of battles in the courts, in the streets, in the media and throughout society, we had won our argument at the highest court in the land and in the court of public opinion. The next day riding the streetcar, everyone was talking about the victory. Dr. Morgentaler had become a hero to most Canadians âe” the little guy fighting against the system. He had gone to jail for his beliefs in the 1970s in Quebec but still was willing to risk incarceration again in Ontario. He stood up to death threats, anti-semitism, ridicule and every other way that opponents try to silence fighters for justice. He never wavered.

But without the work of the women’s movement, it is doubtful the victory would have been as deep seated. I was a spokesperson in those years for the Ontario Coalition for Abortion Clinics (OCAC). Formed by a group of birth control workers who noticed the decline in abortion access, OCAC was a militant coalition of women’s groups and individuals.

The Canadian Abortion Rights Action League (CARAL) had been bravely lobbying for repeal of the abortion law for decades but these women wanted something to put a fire under the issue. Dr. Morgentaler had fought his legal battle in Quebec in the early 1970s and while abortion was still illegal outside of hospitals. In 1976 the PQ government said it would not prosecute any doctor doing safe abortions despite the federal law. The women’s health activists felt the time was right to challenge the law in Ontario and the hundred or more people who attended their first public meeting agreed. Somehow I wound up on the co-coordinating committee.

OCAC represented in many ways the sophistication of the Canadian women’s movement at the time. It led mostly by socialist feminists, who saw the need to build alliances with the labour movement and various immigrant communities as well as mobilizing women across the country. We invited Dr. Morgentaler to open the clinic in Toronto. Other clinics opened across the country. There are now 22 but it was the Toronto clinic that challenged the law. OCAC worked with CARAL in what was often a stressful relationship, but we concentrated on the street action and coalition building while they concentrated on the lobbying, education and fundraising. Anyone who wants to learn about effective coalition building would do well to study the experience of the pro-choice movement in the 1980s.

The abortion battle is probably the best example of the relationship between social struggles and legal decisions. For the almost eight years between the foundation of OCAC and the Supreme Court decision, the abortion debate had been on the front pages in Ontario and then across the country. Debates, marches, direct action, clinics opening and in some cases being shut down, clashes with the “anti’s”, resolutions in the unions, on campuses and in community organizations, everyone had to take a stand, including the Justices. Then Chief Justice Dickson told me many years later that the Morgentaler decision was his proudest moment in the court.

If we compare the Morgentaler decision to Roe v Wade in the U.S. we can see a number of key differences. Of course Roe v Wade only legalized abortion in the first trimester but after it was passed the women’s movement figured they had won an enormous victory and turned to other issues. In the meantime the anti-choice began organizing and eventually formed the basis of the Christian Right that has helped elect reactionary presidents ever since. The women’s movement in the U.S. had to remobilize on the abortion issue and it has been the centre of their concerns ever since.

In Canada, the battle continued after the Supreme Court decision. In 1989, two cases, Barbara Dodd in Ontario and Chantal Daigle in Quebec took the 1988 decision even further. In both cases, their boyfriends tried to get an injunction to stop the woman from having an abortion. In Tremblay v Daigle, the Court ruled that the foetus has no legal status in Canadian law, either common law or Quebec Civil law. Again the women’s movement mobilized in Quebec and Ontario to support Chantal Daigle who took her appeal to the highest level.

In the same period Brian Mulroney’s government tried to recriminalize abortion with a law they thought would stand a Charter test. It was defeated by a single vote in the Senate. No government since has dared to make another attempt.

It is true that access to abortion has seriously declined in hospitals in the last few years. A new generation is taking up the mantle through groups like the Abortion Rights Coalition of Canada, a national group uniting local groups. Canadians for Choice is a young women’s group organizing around diversity and access.

Should the Harper Conservatives win a majority in the next election, all of us will have to be on our toes to make sure this hard fought victory is not eroded or lost.

Judy Rebick

Judy Rebick

Judy Rebick is one of Canada’s best-known feminists. She was the founding publisher of rabble.ca , wrote our advice column auntie.com and was co-host of one of our first podcasts called Reel Women....