History of Abortion Laws

In describing the “abortion trial” of Canada’s first woman doctor, Emily Howard Stowe  [download pdf], feminist legal historian Constance Backhouse outlines the history of Canada’s abortion laws and the motivation of doctors who pressed for criminal sanctions:

Under English common law it had never been considered wrongful to procure an abortion prior to quickening. Nineteenth-century legislation eventually began to encroach upon this principle, but the new laws seemed to be somewhat at odds with the views of much of the populace.




Developing medical notions about conception provided a lobby composed of the regular physicians with a technical rationale for the introduction of much of this legislation. By the nineteenth century some Canadian physicians had come to believe in the vitality of fetal life from the moment of conception. The regular physicians seized upon this argument and campaigned vigorously to make abortions illegal.


The real motivation behind the lobby, however, was more complex than it appeared on the surface. Unlike infanticide perpetrators, who were typically working-class and frequently immigrant and visible-minority women, women who sought abortions were more widely dispersed throughout the population. Some … were undeniably single, working class women. But those who paid relatively high sums of money to professional abortionists for the procedure, came from the married middle and upper classes.  


The doctors who lobbied for more expansive abortion legislation throughout the nineteenth century expressed particular alarm about the declining birthrate of the “respectable classes.” Wealthy women were seeking to avoid conception, they argued, because it was not “fashionable to have a large family.” Although there was no indication that the doctors were lobbying for increased penalties for infanticide, a nineteenth-century problem of considerable magnitude, they were unceasing in their denunciation of abortion.  Religious, racial, and ethnic biases fuelled the class distinctions. Physicians’ journals made reference to the decline of the birth rate among “the better class of inhabitants” and “Protestant families” while the “extraordinary fecundity” of the French-Canadians, the Irish, and other non-English immigrants moved the writers to fearful speculation. In sum, when women from the “respectable classes” sought to regulate their reproductive abilities, it generated a concern of great magnitude.


In addition, the doctors” lobby reflected inter-sect rivalries. The regular physicians had historically refused to perform abortion, partly because they adhered to the Hippocratic oath which specifically forbade the practice. While none of the other sects [homeopaths etc., of which Emily Stowe was one] publicly embraced abortion and some of their members openly disagreed with the procedure, their adherents ostensibly were not wedded to a professional oath censuring it. In the absence of strong anti-abortion laws, those within the irregular sects who would provide abortion services had a ‘definable competitive edge that gained them short-term fees and the possibility of long-term patient-physician relationships. Fulminating in the medical columns of the Canada Lancet, regular physicians attacked abortionists as “traffickers in human life,” who were “unlicensed and unqualified to practice medicine.


On July 1 2008, Governor General Michaëlle Jean announced that Constance Backhouse had been appointed to the Order of Canada.  Along with Dr. Henry Morgentaler and many others. 

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