Legal Abortion in Canada


Legal Abortion in Canada

Abortion was illegal in Canada  until 1969 when the Canadian Parliament passed a law that allowed abortion in  certain circumstances to protect the “health” of the mother—the word “health”  was not defined or limited. Then-Justice Minister Pierre Trudeau introduced a  bill to amend Section 251 of the Criminal Code of Canada, which provided for  abortions where the health of the woman was deemed at risk by a therapeutic  abortion committee consisting of three doctors. Under the amendment abortions  could only be performed in accredited hospitals by licensed physicians. All  other abortions were still subject to the Criminal Code sanctions. Abortion  remained in the Criminal Code as a criminal offence outside of the proscribed  circumstances.

In January 1988, the Supreme Court of Canada, in a case  brought by Henry Morgentaler challenging the law, struck down Section 251 of  the Criminal Code on procedural grounds. It found that the law was not applied  equally across the country thereby violating the security of the person  guarantee in Section 7 of the Canadian Charter of Rights and Freedoms. Not all  hospitals had established therapeutic abortion committees. Some had committees  that simply approved any requests and others were far stricter. The court did  agree that the state had a legitimate interest in protecting the fetus,  referring to such an interest as a “perfectly valid legislative objective,” and  invited parliament to draft another law restricting abortion.

In the Morgentaler ruling, the court did not declare abortion a constitutional right. Only one of  the seven Supreme Court Justices who heard the case, Madam Justice Bertha  Wilson, wrote in support of a woman’s right to abortion, and then only in the  first trimester of pregnancy. Dissenting Justices McIntyre and La Forest  JJ. wrote in their opinion, “Save for the provisions of the Criminal Code  permitting abortion where the life or health of the woman is at risk, no right of abortion can be found in  Canadian law, custom or tradition and the Charter, including s.7, does not create such a right.”  [emphasis added]

Furthermore, they stated that “there has always been a clear  recognition of a public interest in the protection of the unborn and there is  no evidence or indication of general acceptance of the concept of abortion at  will in our society. The interpretive approach to the Charter adopted by this  court affords no support for the entrenchment of a constitutional right of  abortion.”

Chief Justice Dickson reiterated his statement from the 1975  Morgentaler case that Parliament “holds the view that the desire of a woman to  be relieved of her pregnancy is not, of itself, justification for performing an  abortion.”

The court declined to address whether or not the fetus  should be considered a person under Section 7 of the Charter, stating that “it  is unnecessary for the purpose of deciding this appeal to evaluate or assess  ‘foetal rights’ as an independent constitutional value.”

The Mulroney government introduced a bill in 1989 to  restrict abortions to those required for health reasons with maximum jail  sentences of two years for doctors who violated the law. The bill passed in the  House of Commons but died on a tie vote in the Senate. Since then, abortion has  been unrestricted in Canada,  legal through all nine months of pregnancy up until the point of birth. Most  abortions are funded by taxpayers through the publicly funded health system.  There are now over 105,000 abortions a year in Canada.  We are one of the few countries in the Western world that does not have any  legal restrictions on abortion

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