1988 R. v Morgentaler Supreme Court Decision

Introduction

In 1988 the landmark Canadian Supreme Court Case, R. v. Morgentaler, held that the  provision in the Canadian Criminal Code which made abortion criminal was unconstitutional because it violated a woman’s right to security of person under Section 7 of the Canadian Charter of Rights and Freedoms. This case was brought to the Supreme Court by Dr. Henry Morgentaler, a humanist doctor and abortion rights activist who began performing safe, but illegal abortions 20 years prior to the 1988 ruling. Before this ruling, abortions not approved by a special committee were deemed illegal. The R. v. Morgentaler decision was a significant moment in Canadian history because it marked the codification of the most recent abortion law in Canada, decriminalized abortion throughout Canada, and set a legal precedent that remains unchanged. Additionally, this moment in Canadian history is significant as it pertains to a controversial social debate over the morality of abortion in Canada and the rights of Canadian women. By tracing the contentious legal and social history of abortion discourse and its culmination in the R. v. Morgentaler decision, the nuanced dynamics of Canadian modernization, nation formation, and contesting the nation reveal themselves. The R. v. Morgentaler ruling acted as a signifier of shifts in Canadian ideology about women’s rights and set a new legal precedent which expanded women’s rights to choose, but it also was a moment for reflection and debate over the legal and social place of abortion in Canada.

Context

To examine the context of the chosen moment, the following elements will be looked at: the law in place prior to the moment, the attitudes of the population in the years leading up to the moment, and a brief examination of who Morgentaler was as well as some of the other key actors involved in the lead up to this moment. As stated, the moment being discussed is the R. v Morgentaler (1988) decision which “struck down the abortion law” that was in place at the time.[i] The law that was amended after R. Morgentaler was passed in 1969 and was part of the Canadian Criminal Code under section 25.[ii]This section stated that performing an abortion on a woman was an “indictable offense which carries a maximum sentence of life imprisonment […with an] exception [that] allows qualified medical practitioners to terminate a pregnancy in an accredited hospital without criminal liability if, prior to the commencement of the procedure, a majority of the therapeutic abortion committee of that hospital has certified that the “continuation of the pregnancy of such female person would or would be likely to endanger her life or health.”[iii]

Essentially, women could only have abortions by doctors if they had permission of this committee. If not, the abortion was deemed illegal.[iv] Dr. Henry Morgentaler believed this legislation to be unjust as it restricted the rights of women’s autonomy.

The key actors in this landmark decision are  Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott. Dr. Morgentaler was a Polish Holocaust survivor and doctor  immigrated to Canada in 1950. He continuously advocated that women should be able to receive abortions without special permission of the committee aforementioned) for reasons outside medical necessity. Morgentaler had abortion clinics in Toronto, Montreal and Winnipeg, and other places across Canada. It is estimated that he performed approximately 80,000 abortions, many of which were done without following the guidelines of section 251. In 1975 he was sentenced to a  year and a half in jail for his refusal to comply with the law.[v] Nevertheless, he never stopped doing what he felt was right: advocating for women’s right to abortion and conducting abortions “despite the personal, professional, and financial risks for [him]”[vi] The remaining actors, Dr. Smoling and Dr. Scott, worked with Dr. Morgentaler at the Toronto clinic. It was at this clinic in 1983 that they were also charged with violating the Criminal Code’s section 251.[vii]

In looking at social reception of abortion before the overturning of the law in 1988, many people were not pleased with the concept of abortion considering many “pro-life activists protested outside each clinic”[viii] In a study conducted in Toronto, it was found that people were more accepting of abortions if they were conducted for medical reasons or in cases of rape.  However, for financial or non-medical reasons, there was much less support.[ix] Nevertheless, Morgentaler, and others, went to court to advocate for women to have the ability to decide themselves if they wanted to have an abortion; something he saw as a right for all women.[x]

All parties, Morgentaler, Scott and Smoling, argued that section 251 violated the constitution, specifically the Charter of Rights and Freedoms’ section 7.[xi] This all lead up to the actual moment: the case of R v Morgentaler in 1988.

R. v Morgentaler (1988)

 The Morgentaler decision was held in the Supreme Court of Canada, located in Ontario, on January 28th, 1988.  Dr. Henry Morgentaler, Dr. Leslie Frank Smoling, and Dr. Robert Scottwere the appelants.  Robert George Brian Dickson, Jean Beetz, Willard Zebedee Estey, William Rogers McIntyre, Antonio Lamer, Bertha Wilson, and Gérard V. La Forest sat as judges for the trial.[xii]

The following is an outline of the majority opinion that was formed by three distinctive series of reasoning. The three distinctive series of reasoning were defined by different judges present during this final decision. The first series of reasoning was initiated by Chief Justice Dickson and Justice Lamer. The second series of reasoning was given by Justice Beetz and Justice Estey. Last but not least, the third series of reason was proposed by Madam Justice Wilson.[xiii]

Throughout the process of formulating the majority opinion, all 3 majority assessments agreed that the abortion conditions regarding the Criminal Code of Section 251(‘Section 251’ during that time period) were very unlawful. However, the 3 majority assessments had distinctive reasons from one judgement to the other in regard to why they found the abortion conditions unlawful. All 3 majority judgments shared a common agreement that the procedural conditions breached the following right: Charter 7 “security of the person” right.[xiv]

Out of all the judges present in the making of this decision, only one judge thought that the abortion law breached the following right: Charter 7 “right to liberty.” The judge that believed in this violation was Justice Wilson. Wilson was also the only judge that believed the abortion law breached the following section of the Charter: section 2 (b) that includes the right to “freedom of conscience.” Justice Wilson was the only judge in this case that believed that a woman not only has a right, but a Charter right to have an abortion. She based this off the knowledge of one’s given right to liberty, exclusively in the commencement of gestation.[xv]

In the majority opinion, all of the judges decided that the federal authority must provide the required security of a fetus by integrating criminal law jurisdiction. However, none of the judges discussed the given length they would provide in regard to the protection of a fetus.[xvi] Despite the final decision to abolish Canada’s abortion law, what many people failed to understand is that the Supreme Court of Canada did not acknowledge a legal right to abortion. Also, the Court failed to resolve this matter as is generally intended or demanded. Instead, the Supreme Court of Canada decided to hand over to Parliament the responsibility of creating and putting in place a new law concerning abortion. The purpose of the creation and establishment of this new law was to stabilize the importance of  women’s rights in regarding the security of an unborn child, while not antagonizing the nation’s Charter.[xvii]

 

Dr. Henry Morgentaler outside his clinic in Toronto in 1988.

 

Dr. Henry Morgentaler stands in front of a banner that reads “Canadian Abortion Rights Action League in 1988.”

Significance

The R vs Morgentaler case is an extremely important moment in Canadian history as a significant legal change  occurred due to the results of the trial. In a 5-2 ruling, the Supreme Court of Canada “struck down the abortion law found in section 251 of the Criminal Code.”[i] as the majority found it to be unconstitutional; considering the fact that it conflicted with the charter of rights. The 1969 law made it illegal for Canadian woman to get an abortion; unless the pregnancy was a danger to her health. By removing the law from the Criminal Code, Canada experienced legal changes that expanded women’s autonomy over their bodies and their rights to choose whether or not to have an abortion autonomously. Women were now able to receive an abortion legally now thatit was no longer considered to be a criminal act.

More than a legal decision, the Morgentaler case marked a shift in the values of Canadian society. It represented an important milestone in Canada’s path towards modernization as it set a precedent for future cases. The highest court of appeal in Canada had recognized as unconstitutional the ability of the government to  deprive women from exerting control over their reproductive capacity. This sent out a strong message in the establishment of modern Canadian values and the promotion of women’s rights. The protection of individual liberties promoted by the at-the-time quite new Canadian Charter of Rights and Freedom had come to be proven true and effective. In the eyes of the public, Canada was moving further away from its previous conservative culture marked with Judeo-Christian values. At a time where a lot of grievances concerning social changes were made, one group in particular saw this ruling as a victory; women rights activists. As expressed by M.L McConnell, “[the] removal of abortion from the Criminal Code [had] been the longest-standing demand of the women’s movement.”[ii] In what was considered to be a defeat for the pro-life supporters, this moment marked a step forward for the Canadian women’s emancipation. Along with the divorce laws which also experienced important changes in this same period, it was a time that shaped Canada as a nation and redefined the terms of the relationship between the rulers and the ruled. Canadians would no longer tolerate living under legislation that did not match the progress of their society. However, there was contestation to the 1988 decision. In 1990 the House of Commons voted in favour (140-131) of a new law, introduced by new Prime Minister Brian Mulroney, that would re-criminalize abortion. However, it failed once it reached the Senate. In 1993 Dr. Henry Morgentaler challenged the Nova Scotia Medical Services Act and brought his case to the Supreme Court again. This provincial act banned abortion clinics in the province and was deemed illegal by the Supreme Court. From then on, all abortion clinics in Canada were publicly funded.[iii]

The R v Morgentaler ruling marked a significant moment in Canadian history. Not only had Canada become one of the first countries to legalize the medical practice of abortion, but it had also been one of the first times in history where the Supreme Court of Canada had clearly chosen a side (in this case being the pro-choice over pro-life) where there was no gray area for the other camp to manoeuvre around. This moment marked a major change in legal precedent, shifts in societal understanding of women’s rights, and the acceptance of increasingly liberal social policy in Canada. This moment also offers a quintessential historical example of how one person’s act of contesting the nation lead to immense change in conceptions of nationhood.

Conclusion

The 1988 R. v Morgentaler decision beget legal, political, and social changes that continue to affect the lives of Canadians today. Dr. Henry Morgentaler continued fighting for Canadian rights to abortion after the ruling, opening abortion clinics all around Canada and fighting for the public funding of and access to abortions in all provinces.  In 2008 Morgentaler was appointed to the Order of Canada for his commitment to increased health care options for women. There was public backlash by anti-choice organizations, but a national public opinion  poll reported that two-thirds of Canadians supported the Canadian government’s decision to give Morgentaler the high honor. Dr. Morgentaler continued to undertake legal action in the name of promoting healthcare and abortion rights until he died on May 29th, 2013 due to heart problems. The 1988 case he brought to the Supreme Court emphasizes the impacts of contesting the nation, the culmination of the historical legal and social battle for women’s autonomy in Canada and the further transition of the Canadian state into one of modernity.

 

 

 

Henry Morgentaler is awarded the rank of Member in the Order of Canada by Governor General Michaelle Jean at the Citadelle in Quebec City, October 10, 2008.

Endnotes/Bibliography:

[i] Martin, Sheila. “Morgentaler v. The Queen in the Supreme Court of Canada.” Canadian Journal of Women & the Law 2, no. 2 (1987): 423. http://heinonline.org/HOL/Page?handle=hein.journals/cajwol2&div=28&g_sent=1&casa_token=uLZPl2rvT68AAAAA:nbyyGKIlsL5eDIJM8oBahyUB_7PDQUPizBLeO4w2s9dQRcM80JLxH2k2j1nwIxMYp5ncYfet&collection=journals.

 

[ii] Campbell, Tom. “Abortion Law in Canada: A Need for Reform.” Saskatchewan Law Review 42, no. 2 (1977-1987): 221. Accessed April 5, 2018. http://heinonline.org/HOL/Page?handle=hein.journals/sasklr42&div=18&g_sent=1&casa_token=BtUOQuF9nIMAAAAA:8h2E1EOBn1n4terN9pS5F37y7UaC5knsNUV08-OdvNojU1eYjVXRmc3MrFySPnH3OgM5vIln.

 

[iii] Ferri, Raymond Michale, and Terese Ferri. “Canadian Abortion Law.” The Catholic Lawyer 30, no. 4 (1985): 337. http://scholarship.law.stjohns.edu/tcl/vol30/iss4/3

 

[iv] Ibid, 337

[v] Kermode-Scott, Barbara. “Henry Morgentaler.” British Medical Journal 347, no. 7923 (September 7, 2013): 27. Accessed April 5, 2018. http://www.jstor.org/stable/23495656.

 

[vi] Ibid, 27

[vii] Richer, Karine. “Abortion in Canada: Twenty Years After R. v. Morgentaler.” September 24, 2008, 2. Accessed April 5, 2018. https://lop.parl.ca/content/lop/ResearchPublications/prb0822-e.pdf.

 

[viii] Kermode-Scott, Barbara. “Henry Morgentaler.” British Medical Journal 347, no. 7923 (September 7, 2013): 27. Accessed April 5, 2018. http://www.jstor.org/stable/23495656.

 

[ix] Osborn, R.W, and B. Silkey. “Husbands’ Attitudes Towards Abortion and Canadian Abortion Law.” Journal of Biosocial Science 12, no. 1 (1980): 28. Accessed April 5, 2018. doi:10.1017/S0021932000012657.

 

[x] Kermode-Scott, Barbara. “Henry Morgentaler.” British Medical Journal 347, no. 7923 (September 7, 2013): 27. Accessed April 5, 2018. http://www.jstor.org/stable/23495656. xi Goldberg, Edward M. “The Bad Law Argument in Morgentaler v. The Queen.” Canadian Journal O Women and the Law 3, no. 2 (1989): 585-86. Accessed April 5, 2018.

 

[xi] Goldberg, Edward M. “The Bad Law Argument in Morgentaler v. The Queen.” Canadian Journal O Women and the Law 3, no. 2 (1989): 585-86. Accessed April 5, 2018. http://heinonline.org/HOL/Page?handle=hein.journals/cajwol3&div=42&g_sent=1&casa_token=P9zrSxs2WnAAAAAA:We0zi8R9C321EheKkzynx8TmodAPx9y8IqV4fLtwPeAGa_trVlPGj3y3TCkTb2k-0tcDe4QJ&collection=journals.

[xii] Maloney, BJ. “The 1988 Morgentaler Decision.” Morgentaler Decision. April 1, 2018. http://www.morgentalerdecision.ca/1988-decision/

 

[xiii] Ibid,

[xiv] R. v. Morgentaler [1988] 1 S.C.R. 30, 1988 SCC 19556. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do

[xv] ibid

[xvi] ibid

[xvii] ibid

[i] Martin, Sheila. “Morgentaler v. The Queen in the Supreme Court of Canada.” Canadian Journal of Women & the Law 2, no. 2 (1987): 423. Link/doi: http://heinonline.org/HOL/Page?handle=hein.journals/cajwol2&div=28&g_sent=1&casa_token=uLZPl2rvT68AAAAA:nbyyGKIlsL5eDIJM8oBahyUB_7PDQUPizBLeO4w2s9dQRcM80JLxH2k2j1nwIxMYp5ncYfet&collection=journals.

 

[ii] McConnell, M. L. “Abortion and Human Rights: An Important Canadian Decision.” The International and Comparative Law Quarterly 38, no. 4 (1989): 905-13. http://www.jstor.org.proxy3.library.mcgill.ca/stable/759920.

 

[iii] Jenson, Jane. “Competing Representations: The Politics of Abortion in Canada.” In Women and the Canadian State/Les Femmes Et L’Etat Canadien, edited by ANDREW CAROLINE and RODGERS SANDA, 291-305. McGill-Queen’s University Press, 1997. http://www.jstor.org/stable/j.ctt815x7.28.

Pictures:

“Abortion Rights Crusader Henry Morgentaler, Revered and Hated, Dead at 90.” The Globe and Mail. March 26, 2017. Accessed April 06, 2018. https://www.theglobeandmail.com/news/national/abortion-rights-crusader-henry-morgentaler-revered-and-hated-dead-at-90/article12221564/

Church, Tedd. “Photos: Henry Morgentaler through the Years.” Www.ottawacitizen.com. 2013. Accessed April 06, 2018. http://www.ottawacitizen.com/news/Photos Henry Morgentaler through years/8450469/story.html.

“In Pictures: Dr. Henry Morgentaler.” The Globe and Mail. March 26, 2017. Accessed April 06, 2018. https://www.theglobeandmail.com/news/national/in-pictures-dr-henry-morgentaler/article12224348/..

 

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