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  • Kay Vorkenesk (law student)

Thirty Years Since Morgentaler

January 28, 2018 marked 30 years since the Supreme Court of Canada struck down Canada’s abortion laws as unconstitutional in R. v. Morgentaler. Since then, the road to legal, accessible, and safe abortion services has been a rocky one. In Manitoba, politicians from across the spectrum have resisted increasing access to abortions since the 1988 constitutional decision.

More recently, discussion surrounding abortion has become one that has focused on access and not of criminalization. Progress in Canada, although slow, has been made. Plan B or colloquially named the “morning after pill” (an emergency contraceptive pill) became available to the public without a prescription in 2005. However, those requesting the pill needed to fill out a form with personal information that remained at the pharmacy. In 2008, this requirement was removed. Similarly, Mifegymiso, aka the abortion pill has also seen a slow introduction into the Canadian health care system, specifically in Manitoba where access has been limited to certain sites. Manitoba and Saskatchewan are the only two provinces that do not provide full coverage for the pill. Under the current guidelines, free access is only available at HSC, Women’s Health Clinic or at the Brandon Regional Health Centre. Access for women outside of these major cities is limited and requires women to pay the full cost which is around $350. Currently, the pill costs around $300, and if you cannot afford that you can only access it at approved sites (in Winnipeg, HSC and Women’s Health Clinic).

The conversation at the political level regarding Mifegmiso seems to be heating up as we also saw a private member’s bill introduced by the NDP that would ban protestors from being with a certain distance from abortion clinics and hospitals in Manitoba. The current government did not support the bill because of the fear that it would infringe on people’s right to protest. Students have also been active in supporting increasing access, where just this week medical students advocated that access to Mifegymiso should be increased.

It seems as though it was a different generation where there it was dangerous to be providing services or advocating on behalf of progress for reproductive rights. Some may not remember an incident that took place in a St. Vital home on November 11, 1997. Dr. Jack Fainman, head of obstetrics and gynecology at Victoria Hospital, was watching TV when he was shot through the back window of his house. He provided abortion services. Although he survived his attack, this was a career ending incident for Dr. Fainman who was not able to practice again. The suspect of the shooting was never conclusively identified, but it has long been assumed that it was American anti-abortionist James Kopp. Kopp’s also shot and killed Dr. Barnett Slepian on October 23, 1998. He is also suspected of shooting two other Canadian doctors. The 1995 attempted murder of Dr. Hugh Short in Ancaster, Ontario and the 1994 shooting of Dr. Garson Romalis in Vancouver, which is considered the first attempted shooting of an abortion provider in Canada. There was also an attempt on an unnamed physician in Rochester, New York in 1997.

Kopp had received his master’s degree in embryology from Cal-State Fullerton and was a well-known anti-abortion advocate. He initially vehemently denied his involvement with Dr. Slepian’s muder however on November 20,2002 in an interview with the Buffalo News he confessed to the murder. He was tried and charged but claimed his intention was never meant to kill Dr. Slepian, simply injure him so that he could not continue providing abortion services. He continues to deny that he had any role in the Canadian shootings.

To be clear, the number of incidents of violence and disruption against abortion providers in Canada and the US has decreased substantially since the 1990’s which saw 8 murders of doctors and clinic staff and 19 attempted murder. Prior to the attack on the Planned Parenthood location in Colorado in 2015 that killed three people, the last attack was in 2009 on Dr. George Tiller, a member of the National Abortion Federation, who was assassinated in his church in Wichita, Kansas. Dr. Tiller was one of few US physicians who performed late term abortion. Dr. Tiller had been shot at once before in 1993 but had survived that attack. The last identified attack in Canada was in 2000 and once again against Dr. Garson Romalis, when he was stabbed in the parking lot of his medical practice. He survived but the suspect was never identified.

It has been 30 years since Morgentaler, and this brief post skims the Canadian history on how we have approached abortion. It seems as though we have come so far from the earlier days of frenzied anti-abortion protests. But have we?

Having spent some time working with an abortion provider in Winnipeg, I recognize clear signs that there remains a dark undercurrent for reproductive access. It is not only featured in the broken window that graces the front of the clinic, or the lack of attention directed at funding, but it is demonstrated in the anonymity of the location where the abortions take place. Just ask yourself, unless you have had to know, do you know where these services are provided? I can tell you it’s an iron orange door. Only accessible with a swipe card, and then you have to be buzzed into as small room, where you will then be granted access the clinic. There is no signage that directs you how to get there and even google requires more than your average search to find information about how to access the clinic. It seems like an oxymoron that as these clinics and advocates attempt to increase accessibility to these services, in order to ensure safety, they actually have to reduce their accessibility by making their locations difficult to find.

Certainly, Canada continues to make progress, and maybe when we celebrate Morgentaler’s 60th anniversary all women can too.

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