The Morgentaler Decision: January 28, 1988

By Michelle Siobhan Reid

Morgentaler’s long campaign to overturn Section 251 of the Canadian Criminal Code was finally successful in 1988, when the Supreme Court overturned the law in its R v. Morgentaler decision, in a 5-2 ruling.

To read key excerpts from the decision, click here.

The previous law from 1969 had criminalized abortion in Canada unless a Therapeutic Abortion Committee (TAC) of three doctors judged that a woman’s life or health was threatened by the pregnancy. Since the TACs did little to help the situation and few abortions were approved, Morgentaler defied the law by providing abortions based on what his pregnant patients, and not a panel of doctors, determined was best for her health and life.

He and two other doctors had been charged in 1983 with performing illegal abortions at a Toronto clinic. They argued that Section 251 was unconstitutional because it violated Section 7 of the Charter of Rights and Freedoms, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The question before the court was whether the protection of a developing fetus outweighed the right to security of a pregnant woman.

Chief Justice Brian Dickson found that forcing a woman to continue an unwanted pregnancy constituted a violation of her right to security, and wrote “Section 251 clearly interferes with a woman’s bodily integrity in both a physical and emotional sense.” He also found that it violated freedom of conscience and religion. “Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations is a profound interference with a woman’s body.”

Justices Jean Beetz and Willard Estey declared that delays caused by the Therapeutic Abortion Committees and a lack of hospitals that could perform abortions posed a threat to the health of pregnant women. Another Justice, Bertha Wilson, wrote that the current law “[asserts] that the woman’s capacity to reproduce is not to be subject to her own control… she is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life.” (Click here to read more excerpts from the Supreme Court decisions.)

Two dissenting justices stated that there was no constitutional right to abortion. They said the delays caused by hospitals and TACs were an administrative and not a legal issue, and thus not up to the court to decide. However, the majority opinion was in favour of abortion, and Section 251 was struck down. Abortion became completely legal in Canada, including in private clinics.

The decision caused a sensation, leading the national TV news that night and splashing across the front pages of newspapers across the country the next morning. Pro-choice activists were jubilant, almost incredulous, that the law against which they and Morgentaler had fought for more than twenty years was finally gone.

“Bravo for the Supreme Court of Canada!” called Morgentaler outside the Supreme Court chambers. “Bravo for the women of Canada! Justice for the women of Canada has finally arrived!”[1]  He would later write in his memoirs: “Imagine, single-handedly almost, I abolished a restrictive, cruel, barbarous law which caused so much suffering to women across Canada.”

Hundreds gathered around Morgentaler’s Toronto clinic that evening to celebrate the victory, as Morgentaler called out to the crowd, “Every child a wanted child, every mother!”

Pro-choice supporters celebrated, but were also wary in anticipation of inevitable pushback from anti-choice government and healthcare officials.

However, despite the best efforts of anti-choice Members of Parliament, some provincial governments, the anti-choice movement, and religious leaders, the R v. Morgentaler decision was not repealed or amended. Reason and justice had sided with the pro-choice movement, and legally-sanctioned, fully-funded abortion became a part of Canadian law and medicine.

Next: Access After 1988

[1]   From Makin, Kirk. “Abortion law scrapped; women get free choice.” The Globe and Mail. Friday, January 29, 1988. A1. Also, Dunphy, Catherine. Morgentaler: A Difficult Hero. Toronto. Random House of Canada. 1996. pp. 306-307, quoted in Thomson, Ann. 2004. Winning Choice on Abortion: How British Columbian and Canadian Feminists Won the Battles of the 1970s and 1980s. Trafford Publishing, Victoria.