R. v. Morgentaler
Encyclopedia
R. v. Morgentaler [1988] 1 S.C.R. 30
was a decision of the Supreme Court of Canada
wherein the abortion
provision in the Criminal Code of Canada
was found to be unconstitutional, as it violated a woman
's right under section 7
of the Canadian Charter of Rights and Freedoms
to "security of person
". Ever since this ruling, there have been no laws regulating abortion in Canada
.
's Therapeutic Abortion Committee
.
Three doctors, Dr. Henry Morgentaler
, Dr. Leslie Frank Smoling and Dr. Robert Scott, set up an abortion clinic
in Toronto
for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee
, as required under subsection 251(4) of the Criminal Code. In doing so they were attempting to bring public attention to their cause, claiming that a woman should have complete control over the decision on whether to have an abortion.
Morgentaler had previously challenged the abortion law at the Supreme Court in the pre-Charter case of Morgentaler v. The Queen
, [1976] 1 S.C.R. 616 in which the Court denied having the judicial authority to strike down the law.
The Court of Appeal for Ontario found in favour of the government. On appeal, the main issue put before the Court was whether section 251 violated section 7 of the Charter. A secondary issue put to the Court was whether the creation of anti-abortion law was ultra vires
("outside the power") of the federal government's authority to create law.
. There were three different opinions given by the majority, none having achieved more than two signatures. As such, no Morgentaler precedent is binding.
C.J., with Lamer
J. (as he then was) concurring. Dickson began by examining section 7. He found that section 251 forced some women to carry a fetus
irrespective of her own "priorities and aspirations." This was a clear infringement of security of person. He found a further violation due to the delay created by the mandatory certification procedure which put the women at higher risk of physical harm and caused harm to their psychological integrity.
Following standard section 7 analysis, Dickson examined whether the violation accorded with the principles of fundamental justice
. He found that it did not, as the excessive requirements prevented smaller hospitals from providing such services thus preventing many women from even applying for certification. Moreover, he found that the administrative system failed to provide adequate evaluation criteria which allowed the committees to grant or deny therapeutic abortions arbitrarily.
Dickson found that the violation could not be justified under section 1, focusing on the means chosen by the government to achieve its objectives. In the end, the law failed on every step of the proportionality test. First, he found the administrative process was often unfair and arbitrary. Second, the resultant impairment of the women's rights was beyond what was necessary to evaluate their case. Third, the effect of the impairment far outweighed the importance of the law's objective.
Beetz reasoning in the section 1 analysis was also similar to that of Dickson. He found that the objective had no rational connection to the means, thus the law cannot be justified. He also speculated that if the government were to enact a new abortion law, this law would require a higher degree of danger to the woman in the later months rather than the early months for an abortion to be allowed. In this case it could be sufficiently justifiable under section 1.
In examining whether the law was ultra vires, Beetz examined section 91 and 96 of the Constitution Act, 1867
. He decided that the law was within the power of the federal government on account that the committee was not given any power over any provincial jurisdiction under section 91 nor did it function in any sort of judicial manner under section 96.
J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates two rights: liberty, and security of person. She emphasized how section 251 violated a woman's personal autonomy by preventing her from making decisions affecting her and her fetus' life. To Wilson, the women's decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well. By removing the women's ability to make the decision and giving it to a committee would be a clear violation of their liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman's capacity to reproduce.
Wilson goes on to agree with the other Justices that section 251 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of section 7 also has the effect of violating section 2(a)
of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice." The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman's right to conscientiously-held beliefs. With the abortion law, the government is supporting one conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their "essential humanity".
She also stated that
In her analysis of section 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test.
and how the Courts must not go about creating rights not explicitly found in the Charter nor interpret Charter rights to protect interests that the rights were not initially intending to protect. Nowhere in any constitutional texts, history or philosophies is there support for any such rights. Furthermore, there is no societal consensus that these interests should be protected either.
Even if a right could be found, says McIntyre, the case would not have been sufficient to prove a violation. The provisions of section 251(4) cannot be said to be "manifestly unfair" on the basis that some women do not have access. The problems with administrative procedure are external to the legislation and cannot be the basis of a violation.
on a tie vote, leaving Canada without legislation governing abortion. However, the Criminal Code of Canada still contains a provision (s. 287) which limits an individual's right to perform abortions and, as outlined in subsection 4, gives medical practitioners the sole right to perform an abortion.
Academics have since noted that the government could potentially reinstate the abortion law only if it could overcome the "manifest unfairness" created by the administrative procedure.
The case has often since been compared to the US case of Roe v. Wade
, . However, the decision in Morgentaler is actually much closer in terms of the issues to the decision (also in 1973) of the U.S. Supreme Court in Doe v. Bolton
410 U.S. 179
, than to those in Roe.
While the Morgentaler decisions failed to resolve the issue, in the later case of Daigle v. Tremblay (1989), it was found that the fetus is not legally a person in common law
or in Quebec
statutes.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
was a decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
wherein the abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
provision in the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
was found to be unconstitutional, as it violated a woman
Woman
A woman , pl: women is a female human. The term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent...
's right under section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
to "security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
". Ever since this ruling, there have been no laws regulating abortion in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
.
Background
Prior to this ruling, section 251 of the Criminal Code, as it was then, now found under section 287, allowed for abortions to be performed at only accredited hospitals with the proper certification of approval from the hospitalHospital
A hospital is a health care institution providing patient treatment by specialized staff and equipment. Hospitals often, but not always, provide for inpatient care or longer-term patient stays....
's Therapeutic Abortion Committee
Therapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
.
Three doctors, Dr. Henry Morgentaler
Henry Morgentaler
Henry Morgentaler, CM is a Canadian physician and prominent pro-choice advocate who has fought numerous legal battles for that cause.-Early life:...
, Dr. Leslie Frank Smoling and Dr. Robert Scott, set up an abortion clinic
Abortion clinic
An abortion clinic is a medical facility that primarily performs or specializes in abortions. Such clinics may be public medical centers or private medical practices.-Canada:*There were 197 abortion providers in Canada in 2001....
in Toronto
Toronto
Toronto is the provincial capital of Ontario and the largest city in Canada. It is located in Southern Ontario on the northwestern shore of Lake Ontario. A relatively modern city, Toronto's history dates back to the late-18th century, when its land was first purchased by the British monarchy from...
for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee
Therapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
, as required under subsection 251(4) of the Criminal Code. In doing so they were attempting to bring public attention to their cause, claiming that a woman should have complete control over the decision on whether to have an abortion.
Morgentaler had previously challenged the abortion law at the Supreme Court in the pre-Charter case of Morgentaler v. The Queen
Morgentaler v. The Queen
Morgentaler v. The Queen, [1976] 1 S.C.R. 616 is a famous decision of the Supreme Court of Canada where Henry Morgentaler unsuccessfully challenged the prohibition of abortion in Canada under the Criminal Code. The Court found the abortion law was appropriately passed by Parliament under the laws...
, [1976] 1 S.C.R. 616 in which the Court denied having the judicial authority to strike down the law.
The Court of Appeal for Ontario found in favour of the government. On appeal, the main issue put before the Court was whether section 251 violated section 7 of the Charter. A secondary issue put to the Court was whether the creation of anti-abortion law was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
("outside the power") of the federal government's authority to create law.
Ruling
The Court ruled 5 to 2 that the law violated section 7 and could not be saved under section 1Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
. There were three different opinions given by the majority, none having achieved more than two signatures. As such, no Morgentaler precedent is binding.
Dickson
Perhaps the most prominent majority opinion was that of DicksonBrian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
C.J., with Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
J. (as he then was) concurring. Dickson began by examining section 7. He found that section 251 forced some women to carry a fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
irrespective of her own "priorities and aspirations." This was a clear infringement of security of person. He found a further violation due to the delay created by the mandatory certification procedure which put the women at higher risk of physical harm and caused harm to their psychological integrity.
Following standard section 7 analysis, Dickson examined whether the violation accorded with the principles of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
. He found that it did not, as the excessive requirements prevented smaller hospitals from providing such services thus preventing many women from even applying for certification. Moreover, he found that the administrative system failed to provide adequate evaluation criteria which allowed the committees to grant or deny therapeutic abortions arbitrarily.
Dickson found that the violation could not be justified under section 1, focusing on the means chosen by the government to achieve its objectives. In the end, the law failed on every step of the proportionality test. First, he found the administrative process was often unfair and arbitrary. Second, the resultant impairment of the women's rights was beyond what was necessary to evaluate their case. Third, the effect of the impairment far outweighed the importance of the law's objective.
Beetz
Beetz J., joined by Estey, wrote a second opinion finding the abortion law invalid. In it, Beetz noted that by adopting section 251(4), the government acknowledged that the interest of the state to protect the woman is greater than its interest to protect the fetus when "the continuation of the pregnancy of such female person would or would be likely to endanger her life or health". The Justice's reasoning closely resembled that of the Chief Justice. He found a violation of section 7 as the procedural requirements of section 251 were "manifestly unfair".Beetz reasoning in the section 1 analysis was also similar to that of Dickson. He found that the objective had no rational connection to the means, thus the law cannot be justified. He also speculated that if the government were to enact a new abortion law, this law would require a higher degree of danger to the woman in the later months rather than the early months for an abortion to be allowed. In this case it could be sufficiently justifiable under section 1.
In examining whether the law was ultra vires, Beetz examined section 91 and 96 of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. He decided that the law was within the power of the federal government on account that the committee was not given any power over any provincial jurisdiction under section 91 nor did it function in any sort of judicial manner under section 96.
Wilson
WilsonBertha Wilson
Bertha Wernham Wilson, CC was a Canadian jurist and the first woman Puisne Justice of the Supreme Court of Canada.-Early life:...
J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates two rights: liberty, and security of person. She emphasized how section 251 violated a woman's personal autonomy by preventing her from making decisions affecting her and her fetus' life. To Wilson, the women's decision to abort her fetus is one that is so profound on so many levels that goes beyond being a medical decision and becomes a social and ethical one as well. By removing the women's ability to make the decision and giving it to a committee would be a clear violation of their liberty and security of person. Wilson scathingly noted that the state is effectively taking control of a woman's capacity to reproduce.
Wilson goes on to agree with the other Justices that section 251 (prohibiting the performance of an abortion except under certain circumstances) is procedurally unfair, adding that the violation of section 7 also has the effect of violating section 2(a)
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Charter (freedom of conscience) in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice." The decision to abort is primarily a moral one, she notes, and thus by preventing her from doing so violate a woman's right to conscientiously-held beliefs. With the abortion law, the government is supporting one conscientiously-held belief at the expense of another, and in effect, treats women as a means to an end, depriving them of their "essential humanity".
She also stated that
In her analysis of section 1, Wilson notes that the value placed on the fetus is proportional to its stage of gestation and the legislation must take that into account. However, here, the law cannot be justified as the law takes the decision-making power away from the woman absolutely, thus cannot pass the proportionality test.
Dissent
A dissent was written by McIntyre J. with La Forest J. concurring. McIntyre finds that there is no right to abortions in section 7 nor any other laws. His argument is based on the role of judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
and how the Courts must not go about creating rights not explicitly found in the Charter nor interpret Charter rights to protect interests that the rights were not initially intending to protect. Nowhere in any constitutional texts, history or philosophies is there support for any such rights. Furthermore, there is no societal consensus that these interests should be protected either.
Even if a right could be found, says McIntyre, the case would not have been sufficient to prove a violation. The provisions of section 251(4) cannot be said to be "manifestly unfair" on the basis that some women do not have access. The problems with administrative procedure are external to the legislation and cannot be the basis of a violation.
Aftermath
The law was struck down as unconstitutional and Morgentaler's conviction was overturned. An attempt to pass a new abortion law was defeated in the SenateCanadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
on a tie vote, leaving Canada without legislation governing abortion. However, the Criminal Code of Canada still contains a provision (s. 287) which limits an individual's right to perform abortions and, as outlined in subsection 4, gives medical practitioners the sole right to perform an abortion.
Academics have since noted that the government could potentially reinstate the abortion law only if it could overcome the "manifest unfairness" created by the administrative procedure.
The case has often since been compared to the US case of Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, . However, the decision in Morgentaler is actually much closer in terms of the issues to the decision (also in 1973) of the U.S. Supreme Court in Doe v. Bolton
Doe v. Bolton
Doe v. Bolton, 410 U.S. 179 , was a landmark decision of the United States Supreme Court overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the better-known case of Roe v. Wade, 410 U.S...
410 U.S. 179
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, than to those in Roe.
While the Morgentaler decisions failed to resolve the issue, in the later case of Daigle v. Tremblay (1989), it was found that the fetus is not legally a person in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
or in Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
statutes.
External links
- R. v. Morgentaler, 1988. University of Alberta, Centre for Constitutional Studies (Faculties of Law, History, and Political Science)