Key Excerpts From the 1988 Decision

Selected excerpts from the R. v. Morgentaler Supreme Court Judgment (28 January 1988)

View full decision here: http://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html

(Basically, this judgment rendered section 251(1) of the Criminal Code unconstitutional. That section had defined the “therapeutic abortion committees” that had to be established to receive requests for the procedures from women and their doctors. In striking down that section of the Code, the Court left the decision to the woman and her doctor.)

Excerpts from Majority conclusion:

Per Dickson C.J. and Lamer J :

State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section251 clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.

The requirement of s. 251(4) that at least four physicians be available at that (accredited) hospital to authorize and to perform an abortion, in practice makes abortions unavailable in many hospitals. The restrictions attaching to the term “accredited” automatically disqualifies many Canadian hospitals from undertaking therapeutic abortions. The provincial approval of a hospital for the purpose of performing therapeutic abortions further restricts the number of hospitals offering this procedure. Even if a hospital is eligible to create a therapeutic abortion committee, there is no requirement in s. 251 that the hospital need do so. Provincial regulation as well can heavily restrict or even deny the practical availability…It is typically impossible for women to know in advance what standard of health will be applied by any given committee.

The evidence established convincingly that it is the law itself which in many ways prevents access to local therapeutic abortion facilities.

Per Wilson J.:

Section 251 of the Criminal Code, which limits the pregnant woman’s access to abortion, violates her right to life, liberty and security of the person within the meaning of s. 7 of the Charter in a way which does not accord with the principles of fundamental justice.

The right to “liberty” contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them.

A woman’s decision to terminate her pregnancy falls within this class of protected decisions. It is one that will have profound psychological, economic and social consequences for her. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well.

Section 251 also deprives a pregnant woman of her right to security of the person under s. 7 of the Charter. This right protects both the physical and psychological integrity of the individual. Section 251 is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman’s capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman’s physical ‘person’.

This violation of s. 7 does not accord with either procedural fairness or with the fundamental rights and freedoms laid down elsewhere in the Charter. A deprivation of the s. 7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in accordance with the principles of fundamental justice.

The deprivation of the s. 7 right in this case offends freedom of conscience guaranteed in s. 2(a) of the Charter. The decision whether or not to terminate a pregnancy is essentially a moral decision and in a free and democratic society the conscience of the individual must be paramount to that of the state. Indeed, s. 2(a) makes it clear that this freedom belongs to each of us individually. ‘Freedom of conscience and religion’ should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality…

Comments from Chief Justice Dickson:

The case law leads me to the conclusion that state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person.

…I have no difficulty in concluding that the encyclopaedic factual submissions addressed to us by counsel in the present appeal establish beyond any doubt that s. 251 of the Criminal Code is prima facie a violation of the security of the person of thousands of Canadian women who have made the difficult decision that they do not wish to continue with a pregnancy.

Perhaps the most powerful testimony regarding the psychological impact upon women caused by the delay inherent in s. 251 procedures was offered at trial by Dr. Jane Hodgson, the Medical Director of the Women’s Health Center in Duluth, Minnesota. She was called to testify as to her experiences with Canadian women who had come to the Women’s Health Center for abortions. Her testimony was extensive, but the flavour may be gleaned from the following short excerpts:

May I add one other thing that I think is very vital, and that is that many of these (Canadian) women came down because they know they will be delayed in getting first, permission, then delayed in getting a hospital bed, or getting into the hospital, and so they know they will have to have saline (instillation) procedures. And some of them have been through this, and others know what it is about, and they will do almost anything to avoid having a saline procedure.

And of course, that is – I consider that a very cruel type of medical care and will do anything to help them to avoid this type of treatment.

The cost, the time consumed the medical risks, the mental anguish—all of this is cruelty, in this day and age, because it’s [the instillation procedure] an obsolete procedure that is essentially disappearing in the United States.

Comments from Justice Bertha Wilson:

I would conclude…that the right to liberty contained in s. 7 (of the Charter) guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives.

The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does. This decision is one that will have profound psychological, economic and social consequences for the pregnant woman. The circumstances giving rise to it can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.

Thus, women’s needs and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being.

Given then that the right to liberty guaranteed by s. 7 of the Charter gives a woman the right to decide for herself whether or not to terminate her pregnancy, does s. 251 of the Criminal Code violate this right? Clearly it does. The purpose of the section is to take the decision away from the woman and give it to a committee. Furthermore, as the Chief Justice correctly points out, the committee bases its decision on “criteria entirely unrelated to (the pregnant woman’s) priorities and aspirations.” The fact that the decision whether a woman will be allowed to terminate her pregnancy is in the hands of a committee is just as great a violation of the woman’s right to personal autonomy indecisions of an intimate and private nature as it would be if a committee were established to decide whether a woman should be allowed to continue her pregnancy. Both these arrangements violate the woman’s right to liberty by deciding for her something that she has the right to decide for herself.

Section 251 of the Criminal Code takes the decision away from the woman at all stages of her pregnancy. It is a complete denial of the woman’s constitutionally protected right under s.7, not merely a limitation on it. It cannot,  in my opinion meet the proportionality test in Oakes. It is not sufficiently tailored to the legislative objective and does not impair the woman’s right ‘as little as possible’. It cannot be saved under s. 1. Accordingly, even if the section were to be amended to remedy the purely procedural defects in the legislative scheme referred to by the Chief Justice and Beetz J., it would, in my opinion, still not be constitutionally valid.