Recent public discussion concerning abortion and the criminal law indicates some confusion about the extent and impact of the Supreme Court of Canada’s ruling on the issue in the 1988 Morgentaler case. I will here try to clarify the situation.
In the 1988 Morgentaler case, a majority of the Supreme Court ruled the existing abortion provisions of s. 251 of the Criminal Code (now s. 287) to be of no force or effect because they restricted a pregnant woman’s right to security of her person more than was required to meet the state’s legitimate interest in protecting the unborn.
The case was heard by a panel of seven judges. Five of the seven ruled to strike the law down. Four of the five majority judges ruled that the law violated a woman’s right to security of the person under s. 7 of the Charter of Rights and Freedoms. The other majority judge, Madam Justice Wilson, ruled the section violated a woman’s rights to security of the person and liberty under s. 7 as well as her freedom of conscience under s.2(a). All five majority judges found the provisions were too restrictive to be saved by s. 1 of the Charter. The two minority judges held the section did not violate the Charter in any way.
None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn. Even Madam Justice Wilson, who rendered the most liberal opinion in favour of a woman’s rights, advocated an approach to abortion that would balance those rights with the state’s interest in protecting the unborn.
The Morgentaler decision did not strip Parliament of power to make laws restricting abortion provided they meet constitutional standards. However, although it came close in 1991, Parliament has not succeeded in replacing the law rendered ineffective by the Supreme Court.
Thus, Canada since 1988 has been without any criminal law restricting abortion. Presently none of the federal political parties seem disposed to alter that situation.
Provincial legislatures cannot take it upon themselves to fill the void. Criminal law is strictly a matter of Parliament. In another Morgentaler case (1993) the Supreme Court unanimously ruled that provincial legislatures lack constitutional authority to make laws that have the suppression and punishment of abortion as their central purpose and dominant characteristic.
I hope what I have written here helps those who wish to understand the situation respecting the law on abortion better.
By Gerard Mitchell (commentary)
Gerard Mitchell, Charlottetown, is a former provincial court judge (1975-77), P.E.I. Supreme Court Justice (1981-1987) and Chief Justice from 1987 until 2008