R. v. Morgentaler, [1988] 1 S.C.R. 30

Dr. Morgentaler and his co-defendants operated an abortion clinic which had provided abortion services contrary to Criminal Code provisions requiring a panel of doctors to certify abortions as “therapeutic” in order to be legal.

The Supreme Court of Canada ruled, in a 5-to-2 decision that the bureaucracy surrounding abortion was procedurally unjust and interfered with the “security of the person” of women seeking legitimate abortions:

“Security of the person” within the meaning of s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and timely medical treatment and, on the other hand, inadequate treatment or no treatment at all, her right to security of the person has been violated.

Specifically, the court identified the following issues:

  • The requirement that four doctors be present in order for an abortion to be authorized and performed makes abortion impossible at many hospitals, particularly in small towns which have less than four doctors.
  • The provincial regulations on hospitals performing abortions make it impossible for many hospitals (even where four doctors are present) to establish therapeutic abortion committees and perform abortions in accordance with the law.
  • The requirement that abortion can only be authorized in cases where a mother’s “health” is in danger is unnecessarily vague, and does not establish a uniform standard of review for therapeutic abortion committees to apply.

Contrary to popular belief, the Morgentaler case did not create a “right” to terminate a pregnancy in any situation, but rather left a void for Parliament to fill with new legislation that better conforms with the Charter. The absence of any abortion law in Canada is a result of inadequate political will to protect the competing rights of the unborn, not of some decree by the Supreme Court that such rights do not exist.

Decided by the Supreme Court of Canada on January 28, 1988
Click here for the full text of the decision

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Filed under Section 7: Life, Liberty, & Security of the Person

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