Therapeutic Abortion Committees (commonly known as TACs) were committees established under the Canadian Criminal Code. Each committee consisted of three medical doctors who would decide whether a request for an abortion fit within the exception to the criminal offence of procuring a miscarriage, i.e. performing an abortion. The Criminal Code only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm, as certified by a TAC. The TACs were almost always composed of men, due to fewer women practicing medicine and even fewer having these types of high level positions. These restrictions on abortion were struck down as unconstitutional by the Supreme Court of Canada in its decision in R v Morgentaler in 1988.
Abortion law in Canada prior to 1968
Prior to 1968, abortion was a criminal offence in Canada. Any woman who sought an abortion was potentially committing a criminal offence. If a doctor performed an abortion on compassionate or medical grounds, the doctor ran the risk of being prosecuted under the Criminal Code.
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.
Introduction of Therapeutic Abortion Committees in 1968
In 1968, the federal Minister of Justice, Pierre Trudeau, introduced the Criminal Law Amendment Act, 1968-69 to amend the Criminal Code in many respects, including in relation to abortion. The bill introduced the concept of Therapeutic Abortion Committees, which could approve abortions for medical reasons. The committees were based in hospitals and had to be composed of three doctors. The doctor who proposed to perform an abortion could not be a member of the committee which considered the request.
Text of the law
Following the passage of the Criminal Law Amendment Act, 1968–69, the provisions dealing with abortion read as follows:
251. (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 is 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 is liable to imprisonment for two years. ... (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 described in paragraph (a) 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 such female person has been reviewed,
(c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and
(d) has caused a copy of such certificate to be given to the qualified medical practitioner.
These were the provisions of the law which the Supreme Court ruled to be unconstitutional in R v Morgentaler.
The law in operation
Abortion clinics not covered
Abortion clinics 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 Henry Morgentaler openly operated clinics as a form of civil disobedience in order to establish a judicial test case based on the legal defence of necessity.
Variation from hospital to hospital
Even within the hospital system, there were great discrepancies between what different TAC's in different hospitals would be willing to consider a risk to a woman's health.