R v. Morgentaler [1988] — Abortion and the Charter

Introduction

R v. Morgentaler, [1988] 1 SCR 30, is one of the most significant decisions in Canadian constitutional history. The Supreme Court of Canada struck down section 251 of the Criminal Code, which had criminalized abortion except where approved by a therapeutic abortion committee at an accredited hospital. The decision, rendered in fractured reasons from seven judges, established that criminal restrictions on abortion violate a woman’s right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms.

Facts

Dr. Henry Morgentaler, a Montreal physician and longtime advocate for abortion access, opened a free-standing abortion clinic in Toronto in 1982. He was charged under section 251 of the Criminal Code, which made it an indictable offence to procure a miscarriage except where a therapeutic abortion committee of at least three qualified medical practitioners at an accredited or approved hospital certified that continuing the pregnancy would likely endanger the woman’s life or health.

The therapeutic abortion committee requirement created significant practical barriers:

• Only accredited hospitals could establish committees
• Committees required a majority decision of members
• Many hospitals did not establish committees
• The process was slow, burdensome, and inconsistent
• Wait times often pushed women past the gestational limits for the procedure

Morgentaler argued that section 251 violated several Charter provisions, including the guarantee of life, liberty, and security of the person under section 7, and freedom of conscience under section 2(a).

The Supreme Court’s Decision

The Court issued three separate majority opinions, each finding a violation of section 7. No single ratio commanded a majority of the Court on all points.

Chief Justice Dickson and Justice Lamer

Dickson CJ (Lamer J concurring) held that section 251 violated the security of the person guaranteed by section 7. The criminal prohibition imposed serious psychological and physical stress on pregnant women, and the therapeutic committee requirement subjected women to delays, logistical burdens, and unequal access depending on where they lived and whether local hospitals had established committees.

The procedures created substantial risks to women’s health, including:

• Forcing women to carry unwanted pregnancies to term, with attendant health risks
• Delays that pushed abortions later in pregnancy, increasing medical risk
• Differential access based on geography and hospital policy
• Pressure to seek illegal, unsafe abortions

Dickson CJ held that these infringements of security of the person were not in accordance with principles of fundamental justice. The therapeutic committee requirement was procedurally unfair — putting the decision in the hands of a committee rather than the woman and her physician — and the procedures were arbitrary and unfair in their operation.

Justice Beetz

Beetz J concurred in the result but adopted a narrower reasoning. He held that section 251 violated procedural fundamental justice because the defence of therapeutic abortion was rendered effectively unavailable by the procedural barriers. However, he indicated that a properly structured abortion law could satisfy section 7. He would have upheld a law that provided genuinely accessible therapeutic abortion services.

Justice Wilson

Wilson J’s concurring opinion was the most expansive. She held that section 251 violated a woman’s liberty interest under section 7, finding that the decision to terminate a pregnancy engages a woman’s right to make fundamental personal decisions about her body and reproductive life. This reasoning rooted the right to abortion in autonomy and dignity.

Wilson J also found the law violated freedom of conscience under section 2(a), holding that the state could not compel a woman to carry a pregnancy to term contrary to her moral convictions.

Section 1

None of the majority judges found the violation justified under section 1. The pressing and substantial objective of protecting the fetus was not sufficient to justify the grossly disproportionate effects of the law.

Dissenting Opinion

Justice McIntyre (with La Forest J) dissented. He held that the regulation of abortion was a valid criminal law purpose and that section 251 did not violate section 7. He argued that the pre-natal as well as post-natal interests of the child were legitimate state concerns and that Parliament was entitled to balance these competing interests.

Aftermath and Legacy

Legislative Response

Following Morgentaler, Parliament attempted to enact a new abortion law. Bill C-43 proposed to criminalize abortion except where the woman’s health would be endangered. The bill passed the House of Commons but was defeated in the Senate on a tie vote (43–43) in 1991.

Since then, Canada has had no criminal law regulating abortion. Abortion is regulated as a medical procedure under provincial health care regulation. This makes Canada one of the few countries in the world with no criminal restrictions on abortion.

Access Issues

While abortion is legal throughout pregnancy in Canada, access remains uneven. The Morgentaler decision removed criminal barriers but did not address:

• Geographic disparities: Rural and remote communities lack abortion providers
• Hospital restrictions: Many hospitals, particularly Catholic institutions, do not provide abortion services
• Provincial funding variations: Some provinces fund hospital abortions but not clinic abortions
• Gestational limits: Access to later-term abortions is severely limited by provider availability

Subsequent Challenges

The legal framework established in Morgentaler remains broadly intact. In R v. Morgentaler (No. 2), [1993] 3 SCR 463, the Supreme Court struck down Nova Scotia’s attempt to restrict abortions to hospitals through the regulation of health services, holding the law was a colourable attempt to re-criminalize abortion under provincial jurisdiction.

In R v. Morgentaler (No. 3), [1993] 3 SCR 463, the Court upheld the validity of provincial health regulation of abortion services, provided the regulation does not amount to a criminal prohibition.

Conclusion

R v. Morgentaler was a watershed moment in Canadian constitutional law and reproductive rights. The case established that criminal restrictions on abortion violate the security of the person guaranteed by the Charter, and Canada remains among the most legally permissive countries regarding abortion access. However, the case also illustrates the limits of constitutional litigation in achieving substantive access to services — the removal of legal barriers did not automatically create accessible abortion care for all Canadian women.