Hébert: Course of abortion debate never did run smooth

Course of abortion debate never did run smooth

Depending on how one looks at it, former prime minister Kim Campbell is either the last federal minister to have tried to recriminalize abortion in Canada or the first to have conceded that the federal government had to leave women free to choose whether to carry a pregnancy to term.

As Brian Mulroney’s attorney general in the late ’80s, Campbell authored a bill designed to fill the legal vacuum created by the Supreme Court’s finding that the existing law was unconstitutional.

Her bill – for those who forgot – would have made it a criminal offence to induce an abortion unless it was done “by or under the direction of a medical practitioner who was of the opinion that, if the abortion were not induced, the health or life of the female person would likely be threatened.” For the purpose of the legislation, the definition of health was a wide one.

The proposed law was passed in the Commons in 1990 only to die on a tied vote in the Senate a few months later. It was that last vote that led the then-justice minister to close the books.

This week, Campbell returned to the floor of the Commons for the first time since she led the Progressive Conservatives to a crushing defeat in 1993. On the same day, the current justice minister introduced legislation to scrub the Criminal Code of the last remnant of Canada’s restrictions on abortion.

Both Campbell’s reappearance and Jody Wilson-Raybould’s announcement were meant to mark International Women’s Day. Whether it was intended or not, there was more synchronicity between the two events than met the eye.

Almost 30 years after the fact, Wilson-Raybould is picking up where Campbell left off on the morning after her bill’s defeat at the hands of the upper house.

As part of a larger effort to rid the Criminal Code of so-called “zombie laws,” i.e. dispositions that remain on the books decades after having been struck down by the courts, Justin Trudeau’s government is the first to bring the abortion debate back to Parliament since Campbell’s bill was up for debate.

There have been eight parliaments since 1991 and the issue of abortion was put to a vote at least once in every one of them, but always at the initiative of an individual MP rather than as part of the legislative agenda of the government of the day.

The act of removing the abortion section of the Criminal Code 30 years after it was struck down is essentially symbolic.

In theory, a government could have resuscitated the provision by using the notwithstanding clause of the Constitution to shelter it from the prescriptions of the Charter of Rights and Freedoms. But that was a move too politically toxic even for a government such as Stephen Harper’s, whose caucus was home to an anti-abortion majority.

There is a reason why successive Conservative and Liberal prime ministers steered clear of asking Parliament to scrub the Criminal Code of the inoperative section. None of them could have put such a plan to a free vote without risking public divisions within their ranks.

In contrast with his predecessors, Trudeau has decreed that the pro-choice option is Liberal policy. He told the candidates who ran under his banner in 2015 that if and when the issue came up for a vote they would be expected to toe the party line.

The Conservatives have yet to take an official position on the government’s plan to clean up the Criminal Code, but it predictably stands to divide them.

For the Liberals, Wilson-Raybould’s proposed bill comes with the potential partisan bonus of bringing more Conservative divisions to the fore.

But a bonus play should not be confused with a free game.

Even as they have accepted Trudeau’s edict on abortion rights, not all government MPs are overjoyed at the notion of having to fall in line on a vote on the issue. They will comply, albeit with a heavy heart.

A few weeks ago, more than a few Liberals also bristled privately at their government’s refusal to find common ground with the Conservatives on the wording of M-103, the anti-Islamophobia motion.

And then earlier this week, an overwhelming majority of Liberals brushed off the prime minister’s warnings that a Senate bill dealing with genetic discrimination was unconstitutional. They voted with the Conservatives and the New Democrats to pass the bill.

No government is ever immune to caucus restlessness, but most take care not to exacerbate it.

Chantal Hébert is a national affairs writer.

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