Therapeutic Abortion Committee
Encyclopedia
A Therapeutic Abortion Committee (commonly known as a TAC) refers to a Canadian committee of three medical doctors who would decide whether an abortion
fit an exemption to the Criminal Code of Canada
, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm. TACs were almost always composed of men, due to fewer women practicing medicine and even fewer having these types of high level positions. This code was ultimately was struck down and invalidated by the Canadian judicial system in R. v. Morgentaler
in 1988.
After the Roe v. Wade
decision in the United States Supreme Court in 1973, many Canadian women found it much easier to travel abroad to seek medical treatment for unwanted pregnancy. Some women continued to resort to illegal abortions, often by unqualified practitioners, or even attempted to perform the procedure upon themselves
. Sometimes this had dangerous or even fatal consequences (see Abortion in Canada
).
The legal term for abortion was "procuring miscarriage", which was addressed by the Criminal Code as follows:
which then went on to say:
Before there were TACs and the change in the law, there was a similar process for approving abortions. These generally took place only when a woman's physical health was in great jeopardy. In order to make prosecution difficult, these decisions would be made by large numbers of doctors. Only three doctors were required to approve an abortion under the new law.
Abortion clinic
s were illegal under this law; in Québec
only, authorities concluded in the 1970s that the law was unenforceable after a number of unsuccessful criminal cases against doctors. Most notably a Dr. Henry Morgentaler openly operated clinics as a form of civil disobedience
in order to establish a judicial test case
based on the legal defense of necessity
.
In many cases, judges were willing to convict but juries were unwilling to condemn any qualified medical doctor acting in good faith with the intention to protect the health of a patient.
Even within the hospital system, there were great discrpancies between what different TAC's in different hospitals would be willing to consider a risk to a woman's health.
In some hospitals, mental health problems resulting from carrying a pregnancy to term were acceptable to the TAC as endangering a woman's health. This made abortion partially accessible (albeit with at best limited access and some rather unacceptable delays) in some communities as women could claim to be suicidal and on this basis insist that continuation of the unwanted pregnancy represented an imminent danger to mental health.
In other TAC's the law was interpreted much more closely, making it difficult to get an abortion in the hospital even if they did have a TAC.
In some cases, procedures required to protect a woman's life are not available during pregnancy. A prime example would be cancer
treatments such as chemotherapy
which would do extensive and irreversible harm to an embryo
or foetus if done during pregnancy but which, if not done in a timely fashion, can allow the cancer to spread to a point at which the condition is fatal and no longer successfully medically treatable.
These were the cases which the TAC's were originally intended to address, but many hospitals were unwilling to perform abortions at all.
Hospitals had Therapeutic Abortion Committees only if they opted to provide abortions, and there was and is no requirement that they do so.
The end result was a very limited access to lawful abortion which varied widely from one town or province to another. Many towns and cities did not have any hospital that provided abortions.
The abortion legislation also violated the Canadian Charter of Rights and Freedoms
which had been entrenched in the Canadian constitution as part of the patriation
process by Prime Minister Pierre Elliott Trudeau in the early 1980s. As it severely infringed upon a woman's lawful right to security of the person
by forcing her to carry an unwanted pregnancy to term, this section of the Criminal Code ultimately was struck down and invalidated by the Canadian judicial system.
One final legislative attempt to draft a similar law but in slightly modified form (requiring one doctor instead of three) was then narrowly defeated in a tie vote in the Canadian Senate
, marking the end of criminalisation of abortion in Canada.
Nonetheless, many hospitals in Canada were founded or controlled by religious organisations such as the Roman Catholic Church
; the beliefs and agenda of these organisations requires that they deny women access to abortion even after the Criminal Code restrictions on abortion were struck down as unlawful.
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
fit an exemption to the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm. TACs were almost always composed of men, due to fewer women practicing medicine and even fewer having these types of high level positions. This code was ultimately was struck down and invalidated by the Canadian judicial system in R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
in 1988.
After the Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
decision in the United States Supreme Court in 1973, many Canadian women found it much easier to travel abroad to seek medical treatment for unwanted pregnancy. Some women continued to resort to illegal abortions, often by unqualified practitioners, or even attempted to perform the procedure upon themselves
Self-induced abortion
A self-induced abortion is an abortion performed by the pregnant woman herself outside the recognized medical system. Although the term can include abortions induced through legal, over-the-counter medication, it also refers to efforts to terminate a pregnancy through alternative, often more...
. Sometimes this had dangerous or even fatal consequences (see Abortion in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
).
Canadian law
In Canada, from 1969 until 1988, under the amendment to Section 251 (later 287) of the Criminal Code one of the requirements for an abortion to be lawful was that it be ruled to be medically necessary to the health of the woman by a Therapeutic Abortion Committee of a hospital.The legal term for abortion was "procuring miscarriage", which was addressed by the Criminal Code as follows:
- 287. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life.
-
- (2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
which then went on to say:
-
- (4) Subsections (1) and (2) do not apply to:
-
-
- (a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or
-
-
-
- (b) a female person who, being pregnant, permits a qualified medical practitioner to use in an accredited or approved hospital any means for the purpose of carrying out her intention to procure her own miscarriage,
-
-
-
- if, before the use of those means, the therapeutic abortion committee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of the female person has been reviewed,
-
-
-
- (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of the female person would or would be likely to endanger her life or health, and
-
-
-
- (d) has caused a copy of that certificate to be given to the qualified medical practitioner.
-
Before there were TACs and the change in the law, there was a similar process for approving abortions. These generally took place only when a woman's physical health was in great jeopardy. In order to make prosecution difficult, these decisions would be made by large numbers of doctors. Only three doctors were required to approve an abortion under the new law.
Abortion clinic
Abortion clinic
An abortion clinic is a medical facility that primarily performs or specializes in abortions. Such clinics may be public medical centers or private medical practices.-Canada:*There were 197 abortion providers in Canada in 2001....
s were illegal under this law; in Québec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
only, authorities concluded in the 1970s that the law was unenforceable after a number of unsuccessful criminal cases against doctors. Most notably a Dr. Henry Morgentaler openly operated clinics as a form of civil disobedience
Civil disobedience
Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...
in order to establish a judicial test case
Test case
A test case in software engineering is a set of conditions or variables under which a tester will determine whether an application or software system is working correctly or not. The mechanism for determining whether a software program or system has passed or failed such a test is known as a test...
based on the legal defense of necessity
Necessity
In U.S. criminal law, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime because their conduct was necessary to prevent some greater harm and when...
.
In many cases, judges were willing to convict but juries were unwilling to condemn any qualified medical doctor acting in good faith with the intention to protect the health of a patient.
Even within the hospital system, there were great discrpancies between what different TAC's in different hospitals would be willing to consider a risk to a woman's health.
In some hospitals, mental health problems resulting from carrying a pregnancy to term were acceptable to the TAC as endangering a woman's health. This made abortion partially accessible (albeit with at best limited access and some rather unacceptable delays) in some communities as women could claim to be suicidal and on this basis insist that continuation of the unwanted pregnancy represented an imminent danger to mental health.
In other TAC's the law was interpreted much more closely, making it difficult to get an abortion in the hospital even if they did have a TAC.
In some cases, procedures required to protect a woman's life are not available during pregnancy. A prime example would be cancer
Cancer
Cancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...
treatments such as chemotherapy
Chemotherapy
Chemotherapy is the treatment of cancer with an antineoplastic drug or with a combination of such drugs into a standardized treatment regimen....
which would do extensive and irreversible harm to an embryo
Embryo
An embryo is a multicellular diploid eukaryote in its earliest stage of development, from the time of first cell division until birth, hatching, or germination...
or foetus if done during pregnancy but which, if not done in a timely fashion, can allow the cancer to spread to a point at which the condition is fatal and no longer successfully medically treatable.
These were the cases which the TAC's were originally intended to address, but many hospitals were unwilling to perform abortions at all.
Hospitals had Therapeutic Abortion Committees only if they opted to provide abortions, and there was and is no requirement that they do so.
The end result was a very limited access to lawful abortion which varied widely from one town or province to another. Many towns and cities did not have any hospital that provided abortions.
The abortion legislation also violated the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
which had been entrenched in the Canadian constitution as part of the patriation
Patriation
Patriation is a non-legal term used in Canada to describe a process of constitutional change also known as "homecoming" of the constitution. Up until 1982, Canada was governed by a constitution that was a British law and could be changed only by an Act of the British Parliament...
process by Prime Minister Pierre Elliott Trudeau in the early 1980s. As it severely infringed upon a woman's lawful right to security of the person
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
by forcing her to carry an unwanted pregnancy to term, this section of the Criminal Code ultimately was struck down and invalidated by the Canadian judicial system.
One final legislative attempt to draft a similar law but in slightly modified form (requiring one doctor instead of three) was then narrowly defeated in a tie vote in the Canadian Senate
Canadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
, marking the end of criminalisation of abortion in Canada.
Nonetheless, many hospitals in Canada were founded or controlled by religious organisations such as the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
; the beliefs and agenda of these organisations requires that they deny women access to abortion even after the Criminal Code restrictions on abortion were struck down as unlawful.
External links
- Criminal Code of Canada http://www.canlii.org/ca/sta/c-46/sec287.html