January 30, 2018
No Charter right to abortion in Canada
The judgement of the Supreme Court of Canada in the Morgentaler case is often misunderstood or misrepresented.
In January 1988, the Court struck down the 1969 abortion law, section 251 of the Criminal Code, because the law was not being applied equally across the country. In order to procure an abortion a woman needed to obtain approval from an accredited hospital abortion Committee. Abortion committees did not exist in every hospital. The Court struck down the law because it found the system of hospital abortion committees resulted in inequities which were a violation of a woman’s right to security of the person under section 7 of the Charter.
However, in ruling that section 251 was invalid, the Court did not find that women had a constitutional right to abortion. In fact, it stated that the “protection of the foetus” was a “perfectly valid legislative objective”. It was up to Parliament to come up with a new law. There still exists a legal vacuum today. Canada has no law restricting abortion.
Concerning the Morgentaler decision, former Justice of the Prince Edward Island Supreme Court, Gerard Mitchell, explained in the Charlottetown newspaper, the Guardian, in 2014:
None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn.(1)
Osgoode Hall Law Professor Shelley A.M. Gavigan in a 1992 essay wrote that “The Supreme Court’s decision, profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue.”(2)
So no, there is no Charter right to abortion in Canada no matter how often you hear it repeated. The federal government’s attestation for the Summer Jobs program requiring support of “reproductive rights” among other things is a violation of actual Charter rights to freedom of expression, association, conscience and religion.
How many abortions occurred prior to the Morgentaler decision? From 1970 to the end of 1987, more than one million.
(1) Mitchell, Gerard. Clarifying facts on Canada’s abortion law, or lack of. The Guardian, May 22, 2014.
(2)Gavigan, Shelley A. M. Morgentaler and Beyond: Abortion, Reproduction and the Courts, in The Politics of Abortion, Oxford University Press, 1992, page 118.
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