Unsealed Mulroney-era documents reveal role in keeping anti-abortion hardliners at bay

Steve Mertl
Former prime minister Brian Mulroney listens to a question from Lead Commission Counsel Richard Wolson at the Oliphant Commission in Ottawa, Tuesday May 19, 2009. "We would have a cup of coffee, I think, once or twice," Mulroney told a 1996 deposition of his relationship with German businessman Karlheinz Schreiber.THE CANADIAN PRESS/Sean Kilpatrick

Brian Mulroney's reputation as prime minister is decidedly mixed. His government's been praised for its free-trade vision and leadership against South African apartheid, but many associate him with a series of corruption scandals, including the so-called Airbus affair that trashed his personal reputation.

But recently unsealed cabinet documents are bound to change some perceptions about him, especially among pro-choice advocates.

The minutes of cabinet meetings dating back to the late 1980s, obtained by The Canadian Press under the Access to Information Act, reveal Mulroney played a key role in keeping social conservative ministers who wanted to maintain harsh criminal penalties for abortion at bay.

The debate was triggered by the Supreme Court of Canada's 1988 ruling in R. versus Morgentaler, which struck down the existing Criminal Code section on abortion as a violation of the then-new Charter of Rights and Freedoms. Up to then, legal abortions could only take place with the permission of a committee of doctors.

Mulroney managed to temper demands from ministers on the powerful Planning and Priorities Committee for legislation that included up to 10 years in prison for abortion providers, CP reported.

The bill that eventually made it to Parliament in 1990 retained restrictions on abortion and mandated up to two years in prison for violations was passed narrowly by the Commons but rejected by the Senate the following year.

No new legislation was introduced and abortion has remained in a legal vacuum ever since, CP noted. Conservative Prime Minister Stephen Harper, facing the same kind of pressure from anti-abortion members of his caucus, has said he has no interest in reopening the divisive debate.

[ Related: Canadians say ‘no thank you’ to re-opening abortion debate ]

The lengthy CP article details the Mulroney government's response to the Supreme Court decision, which while voiding the law also ruled Parliament could impose reasonable limits on abortion.

The government decided a new law was needed but the debate revealed a deep split around the cabinet table between ministers such as Health Minister Jake Epp, who argued life begins at conception, and Status of Women Minister Minister Barbara McDougall, who wanted to give women more choice.

The cabinet minutes show Mulroney pointed out McDougall was the only woman at the table, compared with the roughly 50-50 gender split among the population, so her views "were therefore not to be taken lightly," CP reported.

A special committee on abortion, chaired by then-Conservative senator Lowell Murray, quickly zeroed on the main problem – two distinct visions of a law. The more liberal approach proposed tightening restrictions further into pregnancy, while anti-abortionists favoured across-the-board restrictions at all stages.

The committee settled on on a two-stage approach, allowing abortion at an early stage but thereafter only if the mother's life was in danger, CP said.

The decision elicited pushback from the staunch anti-abortion faction. Epp compared it with euthanasia.

"The implications of such an approach were frightening should a similar approach be taken for the elderly or the disabled," the minutes show.

But Mulroney would saw a shift developing in public opinion, telling cabinet in April 1988 that "public feelings against abortion may be hardening in the country." He agreed with another minister who said abortion should be the government's top priority.

"The debate was too wrenching and divisive to be allowed to continue much longer," Mulroney said.

It would not be until the Tories won re-election in 1988 – a campaign dominated by the free trade debate – that the government was able to table legislation.

The final draft of Bill C-43, arrived at after winning over the Conservative caucus with a significant anti-abortion contingent, maintained abortion as a criminal offence at any stage unless it was sanctioned by a doctor who believed a woman's life or health was threatened. The draft added "psychological" to physical and mental health.

The law passed in the Commons on a free vote, 140-131. But the Senate vote was tied 43-43, which under the rules meant that it failed, which pleased pro-choice advocates.

[ Related: Brian Mulroney quips, 'I miss the adulation' ]

In an interview with CP, McDougall praised Mulroney's management of the issue, though she saw the legislation as doomed.

"It was the best the drafters could do with a divided country, but it was not a good bill," she said.

Postmedia News columnist Michael Den Tandt, writing last year, said the lingering odour of the Airbus affair and his association with oily German businessman Karlheinz Schreiber remains a stain on Mulroney's reputation as prime minister.

But he praised Mulroney's approach on key files, which 20 years after his tenure make him look prescient.

"As a policy architect he was well ahead of his time," said Den Tandt. "He also had management skills, which have a direct bearing on parliamentary democracy, that Stephen Harper can’t seem to fathom."

Among his accomplishments, standing up to the United States and Britain on refusing to compromise on apartheid, and prodding the United States to sign a treaty on acid rain pollution.

Mulroney also got it right on the GST and free trade, Den Tandt argued, winning support through persuasion and horse-trading rather than intimidation.

"For all his blarney, Mulroney was a formidable negotiator and conciliator. Can Harper, with his hair-trigger instinct for the jugular, do as well?"