Abortion became legal in Canada in 1969 only “if a pregnancy threatened the health or life of a woman.”[1] Abortion on demand, however, remained a criminal offense until 1988. In the Supreme Court case R. v. Morgentaler, section 215 of the Criminal Code was held to violate the rights of women as articulated in Section 7 of the Charter of Rights and Freedoms.
Before this time, a women had to gain a medical certification to receive an abortion. After 1988, abortions became much easier to access. Today, Canadians view abortion as a basic right, and they can access it virtually anywhere.
This article provides a brief and selective overview of Abortion in Canada in order to equip readers to understand how we came to accept abortion as normal in Canadian society.
Why did the Supreme Court Decriminalize Abortion?
To understand why the Supreme Court ruled in the way it did in R. v. Morgentaler, we can look at their legal opinions.
Justices Brian Dickson and Antonio Lamer, for example, explain that Section 251 of the criminal code constitutes “an infringement of security of the person.” The phrase “security of the person” cites Section 7 of the Charter. The point being that the (then) current criminal legislation infringed upon the rights of women.
Their opinion does not mean every law on abortion would infringe the rights of women, but specifically the law as articulated in Section 251 of the criminal code.
Another Justice, Justice Bertha Wilson explains how, in her legal opinion, Section 251 of the Criminal Code conflicts with section 7 of the Charter. She explained:
Section 251 of the Criminal Code, which limits the pregnant woman’s access to abortion, violates her right to life, liberty and security of the person within the meaning of s. 7 of the Charter in a way which does not accord with the principles of fundamental justice.
The right to “liberty” contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them.
A woman’s decision to terminate her pregnancy falls within this class of protected decisions. It is one that will have profound psychological, economic and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well.
Wilson argues that criminalizing abortion does not accord with “the principles of fundamental justice” as defined in the Charter. Further, she avers that the right to liberty in the case of abortion is a private decision, one of “personal autonomy.” The state thus should not make abortion a crime. “Liberty in a free and democratic society” does not require it.
Lastly, Wilson moves the decision to abort away from a merely “medical decision” into a social and ethical decision. This movement partially explains why allowing abortion only to those who gain a medical certification (which was then the law) should no longer be the sole medium for gaining an abortion.
Were I to simplify Wilson’s argument, I would put it in this way. Abortion is a private decision, which belongs to a woman in a free and democratic society. She alone can decide to abort a fetus.
What raises my eyebrows, however, is Wilson’s admission that: “The question whether a foetus is covered by the word “everyone” in s. 7 so as to have an independent right to life under that section was not dealt with.” If a fetus is human being, then one wonders why the baby should not enjoy the same protections under the charter as “everyone” else does?
It is worth noting that Justices McIntyre and La Forest dissented and claimed: “Save for the provisions of the Criminal Code permitting abortion where the life or health of the woman is at risk, no right of abortion can be found in Canadian law, custom or tradition and the Charter, including s. 7, does not create such a right. Section 251 of the Criminal Code accordingly does not violate s. 7 of the Charter.”
To read the rest of the opinions and more details, do read the material surrounding R. v. Morgentaler.
But What about the Rights of the Unborn?
While Justice Wilson did not consider the question of whether a fetus has the right to life, another Supreme Court case did in 1989—Tremblay v. Daigle. While the details do not precisely map unto the R. v. Morgentaler (the specifics involve Quebec law), one conclusion is worth noting given the importance of its possible legal precedent: “A foetus is not included within the term “human being” in the Quebec Charter and, therefore, does not enjoy the right to life conferred by s. 1.”[2]
The Justices also found nothing in the Canadian Charter that gainsay this conclusion. Under Canadian law then, the unborn do not currently enjoy the right to life. Section 223 of the Criminal Code seems to confirm this sentiment when it says: “A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother.”
How do Canadian Politicians Treat Abortion?
In the United States, abortion plays an important role in politics. In Canada, it does not. In 1990, Brian Mulroney’s party attempted to pass a law to regulate abortion. While it passed through the House of Commons, Senate killed the bill. Conservative leader Candidate Leslyn Lewis in 2020 ran on an anti-abortion campaign. She had some success, but overall Canadian politicians avoid questions surrounding abortion.
How Abortion Happens Today
“Abortion is publicly funded as a medical procedure under the Canada Health Act,” explains Linda Long. Abortion rates have declined in Canada from 2007–2020 by about 20%. However, the reason why these medical numbers have declines probably has to do with the increased use of Mifegymiso (an abortion pill). Despite access to Mifegymiso, about 80,000 medical abortions occur per year.
Mifegymiso combines mifepristone and misoprostol and terminates “a pregnancy” according to Health Canada. The drug became publicly funded and so available to all Canadians in 2017. Originally, someone had to first have an ultrasound before a doctor could prescribing Mifegymiso. In a Health Canada release dated to 2019, an ultrasound is no longer required for this prescription.
Conclusion
The history of abortion in Canada includes much more than I have included here. I have omitted any discussion of, for example, Henry Morgentaler. But this article aimed to be a brief overview to help Canadian Christians grasp the basics of how we got to where we are today.
The likelihood that Canadian politicians could pass a bill through Senate to regulate abortion seems slim today. Further, the legal judgments in R. v. Morgentaler would have to be navigated. I do not have the qualifications or knowledge to know how this might happen.
I can, however, speak as a Christian about what Christians think about abortion and explain more fully why Canadian society at large came to accept its normalcy. Which I plan to do in further articles.
Further Reading:
https://nafcanada.org/history-abortion-canada/
https://www.thecanadianencyclopedia.ca/en/article/abortion
https://www.arcc-cdac.ca/media/2020/07/statistics-abortion-in-canada.pdf
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/515/index.do
[1] The Canadian Encyclopedia, s.v. “Abortion in Canada,” by Linda Long, Accessed October 29, 2022, https://www.thecanadianencyclopedia.ca/en/article/abortion
[2] Tremblay v Daigle (1989), https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/515/index.do, accessed Oct 31, 2022.
