Abortion access

Canadian court decisions

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Note:

The following is general information only, and should not be interpreted as legal advice. Do not make any decisions on the basis of this essay. If you have a personal problem in this area, you may want to consult a legal professional.

Overview:

During 1988-JAN-28, the Canadian Supreme Court determined that the Federal law regulating abortion to be in conflict with the Canadian Charter of Rights and Freedoms -- the Canadian constitution. The law was thus declared unconstitutional across the country. Over two decades later, Canada still lacks a law restricting abortion. The procedure is left up to the woman, her physician working under the regulations of her/his provincial medical association, and perhaps the woman's spiritual advisor. Canada is believed to be unique among Western countries by lacking a law restricting abortion.

The trial:

The case that overturned the federal law is indexed as R. v. Morgenthaler. It involved three physicians: Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott -- all abortion providers.

The existing law [s. 251(4)] required a pregnant woman seeking an abortion to convince a therapeutic abortion committee at a hospital that her health or life was in danger because of her pregnancy. The committees at some hospitals rejected all or almost all applications; others approved all or almost all. At least one committee -- in Kingston ON -- routinely turned down almost all first applications but routinely passed almost all second applications; they felt that a second appearance before the committee was a sufficient indication of her need to have an abortion.

The three defendants had set up a specialist clinic in Ontario to perform abortions. They performed the procedure for women whether or not they had obtained a certificate from a therapeutic abortion committee. They also had made public statements questing the wisdom of the abortion laws, and suggested that a woman should have the right to choose to have an abortion. "Indictments were preferred against the appellants charging that they had conspired with each other with intent to procure abortions contrary to ss. <423(1)(d) and 251(1) of the Criminal Code" of Canada." ₁

In "R. v. Morgenthaler," "R" refers to the Queen as the symbolic plaintiff. A Toronto lawyer, Morris Manning, was counsel for the defendants. The Government attempted to show that the 1969 law was created to enable women to have reasonable access to medical abortions.

At the trial, the judge did not permit a defense based on the Canadian Charter of Rights and Freedoms -- Canada's constitution. However, Manning was able to convince the jury that, in practice, the law made abortions readily available to only a privileged few women across Canada. It also could endanger the health of woman because the process of obtaining permission from the local committee was time consuming; this delay made the abortion procedure more risky.

Morgenthaler et al. were acquitted by the jury.

The appeals:

The Government of Canada appealed the case to the Ontario Court of Appeal. The physicians filed a cross-appeal. In this venue, the defense was able to base their case on the Canadian Charter. The Court of Appeal upheld the trial court's acquittal.

The Government then appealed the case to the Supreme Court of Canada. The defense argued that the existing law infringed or denied the rights and freedoms guaranteed to persons under the Canadian Charter, in Sections:

The Supreme Court agreed that the then existing law infringed on section 7 of the Charter. The court determined that:

The Supreme Court also commented on the content of a law to restrict abortion that would pass the constitutional test, using language that mirrors that of the U.S. Supreme Court's ruling in Roe v. Wade. They wrote:

"The value to be placed on the foetus as potential life is directly related to the stage of its development during gestation. The undeveloped foetus starts out as a newly fertilized ovum; the fully developed foetus emerges ultimately as an infant. A developmental progression takes place between these two extremes and it has a direct bearing on the value of the foetus as potential life. Accordingly, the foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman's autonomy would be absolute and a restrictive approach in the later stages where the states's interest in protecting the foetus would justify its prescribing conditions. The precise point in the development of the foetus at which the state's interest in its protection becomes 'compelling' should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines."

When the Supreme Court declared that the law to be unconstitutional, abortions became freely available across Canada.

Parliament attempted to replace law:

Parliament tried to pass a replacement law, but was unable to compromise on a suitable wording. The bills that were proposed would have been quickly declared unconstitutional because they were even more restrictive than S 251 had been. A bill to restrict abortions was introduced into the House of Commons in 1990 and approved on 1990-MAY-29. It was defeated in the Senate by a tie vote on 1991-JAN-31. ₂

The only law covering fetuses is Section 223 of the Criminal Code. It states that "a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being." That is, for a person to be charged with murder after the death of a fetus, the fetus would have to be intentionally injured before or during birth, would have to be born alive, and later die as a result of the injury.

Current status of abortion in Canada:

As of early 2008, the country remains without a law restricting abortion. Decisions are left up to the women, their doctors and medical associations. Abortions are readily available up to 20 weeks in hospitals of most large cities, and in a few free-standing clinics. However, access remains spotty across the country. Abortions are not available in Prince Edward Island, or in many rural areas. Area medical services are often being consolidated in a single hospital. If the surviving facility is operated by a Roman Catholic group, then individuals and couples are frequently denied local access to birth control, STD and abortion information and services.

There is little likelihood that any future federal government will attempt to create a new law, unless the existing Conservative minority governments achieves a majority. If that happens, all bets are off.

Related essay:

References:

1. "R. v. Morgentaler," (1988), Canadian Legal Information Institute, at: http://www.canlii.org/
2. A more complete description of Canadian law on abortion is available from the World Wide Legal Information Association at: http://www.wwlia.org/

Copyright © 1998 to 2008 by Ontario Consultants on Religious Tolerance
Latest update: 2008-JAN-31
Author: B.A. Robinson