R v Morgentaler: A Landmark Decision Affirming Reproductive Rights in Canada

The Supreme Court of Canada's pivotal ruling in R v Morgentaler, [1988] 1 SCR 30, fundamentally reshaped the legal landscape of abortion in Canada. This landmark decision declared the existing abortion provisions within the Criminal Code unconstitutional. The Court found that these provisions violated women's fundamental rights under Section 7 of the Canadian Charter of Rights and Freedoms ("Charter"), specifically their right to security of the person.

The Restrictive Legal Framework Prior to Morgentaler

Before the 1988 Morgentaler decision, abortion in Canada was a criminal offense under Section 251 of the Criminal Code. While the Code allowed for some exceptions, these were highly restrictive. A woman could only obtain a legal abortion if a Therapeutic Abortion Committee (TAC), composed of at least three medical practitioners at an accredited hospital, certified that the continuation of her pregnancy would endanger her life or health. This system created significant barriers and inequities. For instance, it led to geographical disparities in access, lengthy wait times, and a lack of standardized criteria for approval across the country. Many women in rural or remote areas had no access to hospitals with TACs, effectively denying them legal abortion services altogether, often forcing them to seek dangerous illegal procedures or travel extensively.

Dr. Henry Morgentaler's Enduring Advocacy

The case takes its name from Dr. Henry Morgentaler, a courageous physician and long-time advocate for abortion rights. Dr. Morgentaler repeatedly challenged Canada's abortion laws by openly performing abortions outside the restrictive legal framework, leading to multiple arrests and trials over decades. His unwavering commitment to reproductive freedom, despite significant personal and professional risks, was instrumental in bringing this critical issue before the nation's highest court and forcing a re-evaluation of the existing criminal code provisions.

Section 7 of the Charter and the Right to Security of the Person

Central to the Supreme Court's ruling was Section 7 of the Canadian Charter of Rights and Freedoms, which unequivocally guarantees everyone the right to "life, liberty, and security of the person." The Court interpreted "security of the person" broadly in this context. It recognized that forcing a woman to carry a pregnancy to term against her will, or subjecting her to a criminal process for seeking an abortion, constituted a profound interference with her bodily autonomy and psychological integrity. The criminal law, by imposing such severe and arbitrary restrictions, deprived women of control over their bodies and their fundamental health decisions, thus violating their security of the person as protected by the Charter.

The Court's Reasoning and Immediate Aftermath

The Supreme Court did not strike down the abortion law based on a woman's unqualified "right to choose" but rather on the procedural and substantive flaws of the existing criminal provisions that infringed upon Section 7. Chief Justice Brian Dickson, for the plurality, highlighted that the state's undue interference with a woman's body and health decisions created "serious psychological trauma." Justice Bertha Wilson, in a powerful concurring opinion, emphasized the right of women to make fundamental decisions about their own bodies and health free from state compulsion. Following this ruling, the federal government chose not to introduce new criminal legislation regulating abortion, leading to Canada's unique legal status for the procedure.

Abortion's Current Legal and Healthcare Status in Canada

Since the R v Morgentaler decision, Canada has remained one of the few countries globally without a specific criminal law governing abortion. This means that abortion is treated as a medical procedure, regulated under provincial and territorial healthcare systems, much like any other medical service. Access to abortion, including its funding, falls under the purview of provincial health insurance plans, consistent with the principles of the Canada Health Act, which ensures universal access to medically necessary services. While the absence of criminal law ensures legal access, challenges related to geographical availability of services, the number of healthcare providers, and social stigma can still exist in certain regions, highlighting ongoing access issues despite legal protection.

Frequently Asked Questions About R v Morgentaler and Abortion in Canada

What was the main outcome of R v Morgentaler, [1988] 1 SCR 30?

The Supreme Court of Canada ruled that the Criminal Code's abortion provisions were unconstitutional, violating women's Section 7 Charter rights to security of the person. This decision effectively decriminalized abortion across Canada.

Who was Dr. Henry Morgentaler?

Dr. Henry Morgentaler was a physician and a prominent, long-time advocate for abortion rights. He repeatedly challenged Canada's restrictive abortion laws, leading to the landmark Supreme Court decision that bears his name.

What does "security of the person" mean in the context of this ruling?

In R v Morgentaler, "security of the person" was interpreted to include a woman's bodily autonomy and psychological integrity. The Court found that the state's undue interference with a woman's profound personal decision regarding her body and pregnancy violated this right.

Is abortion legal in Canada today?

Yes, abortion is legal in Canada. It is treated as a medical procedure regulated under provincial and territorial healthcare frameworks, not by federal criminal law. This means it is a healthcare service, like any other, covered by provincial health plans.

Are there any restrictions on abortion in Canada?

There are no federal criminal laws restricting abortion. Any regulations relate to medical practice guidelines, similar to other healthcare procedures, and fall under provincial jurisdiction. While legally accessible nationwide, practical access can vary by region due to factors like geographical location, availability of services, or healthcare provider availability.