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Thirty Years After R. v. Morgentaler

This Sunday marks the thirty year anniversary of the Supreme Court of Canada’s decision in R. v. Morgentaler (1988), which struck down the section of the Criminal Code that once limited access to abortion in Canada. Here are ten important facts about this landmark Canadian case that opened up the floodgates to abortion in our country:

1. The man behind Morgentaler is hailed as a Canadian hero. The Morgentaler (1988) case is named after Dr. Henry Morgentaler, a Polish immigrant who moved to Canada after surviving the Holocaust. He was charged and went to trial multiple times for performing illegal abortions. One of these cases ultimately went to the Supreme Court of Canada, where Morgentaler’s legal team successfully argued that the abortion laws he was convicted of violating were unconstitutional. In 2008, he was named a member of the Order of Canada for his “commitment to increased health care options for women, his determined efforts to influence Canadian public policy and his leadership in humanist and civil liberties organizations.”

2. At the time, abortion was available but limited. The Criminal Code prohibited abortions except in limited situations when the continuation of the pregnancy would be likely to endanger the woman’s life or health. A panel of three doctors was required to determine whether the criteria for an abortion were met, and if so, the abortion had to take place in an accredited hospital.

3. This abortion law once withstood judicial scrutiny. Before the 1988 case, Dr. Henry Morgentaler brought an earlier application in 1975 to strike down Canada’s abortion law, but that application failed. In denying the application, Justice Dickson wrote that the court “has not been called upon to decide, or even to enter, the loud and continuous public debate on abortion….” Instead, he wrote that the court was compelled to accept the position of Parliament that “the desire of a woman to be relieved of her pregnancy is not, of itself, justification for performing an abortion.”

4. Everything changed with the enactment of the Charter of Rights and Freedoms. In 1982, the Liberal government under Pierre Trudeau introduced the Canadian Charter of Rights and Freedoms. This fundamentally changed the relationship between Parliament and the courts by giving courts the power to review Parliamentary objectives. Indeed, in the Morgentaler (1988) decision, Justice Dickson (who by then had become Chief Justice) began his reasons by noting that, since 1975, “the Court has been given added responsibilities…Canadian courts are now charged with the crucial obligation of ensuring that the legislative initiatives pursued by our Parliament and legislatures conform to the democratic values expressed in the Canadian Charter of Rights and Freedoms.”

5. Even after the advent of the Charter, the court did not presume to settle the abortion debate. After acknowledging the court’s new review power, Chief Justice Dickson qualified this power by writing, “[I]t remains true that this Court cannot presume to resolve all of the competing claims advanced in vigorous and healthy public debate…it is still fair to say that courts are not the appropriate forum for articulating complex and controversial programmes of public policy….”

6. The decision of the court turned on two judges. There was massive division in the court, as the seven judges of the court who heard the case wrote four separate reasons. Three of the sets of reasons (representing five judges) agreed that the abortion laws were unconstitutional, but each of these reasons represented a different rationale for the conclusion. The last set of reasons (representing two judges) held that the abortion laws were not unconstitutional. In other words, it was a 5-2 decision in favour of striking down the law. If two judges from the majority had reached the opposite conclusion, then the state of abortion in Canada may well have been very different today.

7. Two judges argued that the abortion law should be upheld. Justice McIntyre, writing for himself and Justice LaForest, disagreed with the majority and concluded that the abortion law did not violate the Charter. They reached their conclusion based on a narrow view of the power of the Charter, finding that rights could not be “read in” to the Charter if the Charter did not expressly provide for them. In the end, they deferred to Parliament’s right and obligation to find a reasonable solution to the abortion question.

8. The majority of the court did not recognize a constitutional right to abortion. Many assume this to be the case, but it’s not true. None of the judges, with the exception of Justice Wilson, recognized that abortion was a constitutional right. The abortion law was ultimately struck down because the process it created for obtaining an abortion was found to be unconstitutional. The majority of the court concluded that, if Parliament decided to use the criminal law to regulate abortion, then it had the constitutional obligation to create a fair process. In the majority’s view, it failed to do so. For example, Chief Justice Dickson concluded that the criterion of endangerment to “health” was unconstitutionally vague. While Justice Beetz disagreed, he found that requiring abortions to be conducted in accredited hospitals after being screened by a panel of three doctors made access to abortion unconstitutionally difficult to obtain. At no point did a majority of the judges agree that abortion is constitutionally protected. That was not the question before the court. The question was whether the regime set up by Parliament passed constitutional muster, and the majority found that it did not.

9. The rights of unborn children were acknowledged by the court. Justice Beetz wrote that the primary objective of the abortion law was “the protection of the foetus.” The protection of the life and health of pregnant women was an “ancillary” one. He expressly stated that the protection of the unborn was a valid objective in Canadian criminal law, and noted that, at some point, the state’s interest in protecting an unborn child would become so compelling that the liberty rights of women must give way. However, he left that decision to Parliament, noting that only the legislature is in a position to receive adequate guidance on this question.

10. Parliament has never filled the legal void left by the court in Morgentaler. Although the judges of the Supreme Court of Canada clearly invited Parliament to fill the legislative void left by the Morgentaler (1988) decision, no government has been able to do so to this day. While medical colleges provide professional guidelines on how and when to perform abortions, Canadian governments have remained silent on this issue for decades. Approximately 100,000 abortions happen annually in Canada.