January 17 - Lecture 2 - Abortion Law
-Do people own their bodies and do bodies have a price?
-do women own their bodies? Does state involvement over a pregnant woman imply her body is not
always hers? And so is less hers than a man's body to him?
-should pregnancy change the legal/ethical status of women's body? Reproductive rights?
-who has a property interest in the woman's pregnancy if it is not her own body?
-abortions are common everywhere, but are outlawed in some areas e.g. Ireland, Poland
Reforms in the 1960s
-procuring an abortion was a crime until 1969 whether the procurer was medically trained or not
-doctors usually prosecuted only when woman were hospitalized or died
-abortion was not always outlawed e.g. 1860's turned to crime in codes
-1968 Trudeau becomes PM and begins criminal code reform
-Wolfenden committee on reform of sex laws had set out a new rationale for using the criminal law to
regulate sexual and reproductive conduct
-target of prosecution was not the woman, it was the questionable doctors, midwives who were
profiting from it
1969 Criminal Code Reforms
-birth control legalized. Homosexual sex partially legalized
-abortion now legal but highly regulated
-s.251 abortion ok if performed in accredited hospital after permission granted by the majority of
members of a therapeutic abortion committee (TAC)
-had to consist of three doctors, discluding the one who was to perform the abortion; hospitals were not
forced to have therapeutic abortions
-grave problems of access, inconsistency across the country; rare to find four doctors willing to provide
services or appear in committee, so majority of Canada is left out of access; also extremely busy as there
were so few of them across the country
-Canada had high rate of late abortions because it was so difficult to make appointments, more danger
associated with and less willingness to approve abortion as weeks go by
Dr. Morgentaler's Montreal Clinic
-Auschwitz survivor, non-religious and pro-choice, Jewish, campaigner for civil rights
-saw 1969 reform as a failure, opted for civil disobedience, opened Montreal Clinic
-June 1970, first police raid; 12 more charges before trial on first one, sent undercover women police
-November 1973; Montreal jury acquits M of 'conspiracy to procure an abortion'
-note, US Supreme Court legalized abortion in Roe v. Wade decision 1973
Paranthesis: Jury Nullification and the persistence of equity
-in common law systems, juries are allowed to exercise equitable jurisdiction
-equity provides remedies when law fails (equity is about substantive justice, not formal rules)
-importance of equity declines as statute law grows, but it never disappears
-jury nullification of a law (acquittal despite clear evidence of breach) part of equitable jurisdiction
-Canadian judges have strongly objected (Ontario Court of Appeal, Canadian Supreme Court in