ABORTION IN CANADA:
CRIMINAL LAW, CONSTITUTIONAL LAW
& KEY COURT DECISIONS
Rels 300 / Nurs 330
27 November 2014
ABORTION LAWS
 Up
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to 19th century, no laws or regulations
concerning abortion - not a medical
procedure
 prenatal care and birth attendance by
midwives
 earliest regulations enacted to protect
women from non-medical abortionists who
caused deaths, sterility, infections, etc.
 1920 - Soviet Union - 1st country to legalize
and regulate abortion
2
CANADIAN LAW
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Late 19th century – contraception and abortion
both became criminal offences according to the
1892 Criminal Code of Canada
In 1969 - Criminal Code was amended
 Contraception removed from the Criminal
Code – no longer a criminal offence
 Abortion still a criminal offence, but
allowed under specific conditions
What sorts of conditions?
3
WHAT DID THE CRIMINAL CODE SAY ABOUT
ABORTION IN THESE 2 SECTIONS?
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Section 287
(1) Every one who, with intent to procure the miscarriage
of a female person, whether or not she is pregnant, uses
any means for the purpose of carrying out his intention is
guilty of an indictable offence and liable to imprisonment
for life.
(2) Every female person who, being pregnant, with intent
to procure her own miscarriage, uses any means or
permits any means to be used for the purpose of carrying
out her intention is guilty of an indictable offence and
liable to imprisonment for a term not exceeding two
years.
4

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(4) Subsections (1) and (2) do not apply to
(a) a qualified medical practitioner… who in good faith uses
in an accredited or approved hospital any means for the
purpose of carrying out his intention to procure the
miscarriage of a female person, or
(b) a female person who, being pregnant, permits a qualified
medical practitioner to use in an accredited or approved
hospital any means for the purpose of carrying out her
intention to procure her own miscarriage,
if, before the use of those means, the therapeutic abortion
committee…by a majority of the members of the
committee and at a meeting of the committee at which the
case of the female person has been reviewed,
(c) has by certificate in writing stated that in its opinion the
continuation of the pregnancy of the female person would or
would be likely to endanger her life or health
5
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Section 288
 Every one who unlawfully supplies or procures a
drug or other noxious thing or an instrument or
thing, knowing that it is intended to be used or
employed to procure the miscarriage of a female
person, whether or not she is pregnant, is guilty of
an indictable offence and liable to imprisonment for
a term not exceeding two years.
6
1969: ANTI-ABORTION RESPONSE
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Those who opposed decriminalization of abortion
were not satisfied:
 The law was too liberal
 Access to legal abortions was not restricted enough
 The only exceptions should be to save physical life
of pregnant woman
 The range of exceptions based on dangers to
health were too broad
 Many worried that health would be construed as
not only including mental health, but economic
and social factors as well
7
1969: RESPONSES OF ABORTION SUPPORTERS
Those who supported the decriminalization of abortion
were not satisfied:
The law was still too restrictive

Women were still dependent on the opinion of their doctors

Access to abortion services required the approval of hospital
abortion committees and their support of a woman’s decision to
end a pregnancy

Hospitals were not required to provide abortion services; many
had no physicians who would do abortions, and no abortion
committees

No government funding for abortions performed in health clinics

Some provinces offered no abortion services
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
8
THE BADGLEY COMMITTEE

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In 1975 a Committee on the Operation of the Abortion
Law was appointed "to conduct a study to determine
whether the procedure provided in the Criminal Code
for obtaining therapeutic abortions [was] operating
equitably across Canada" and to make
recommendations "on the operation of this law rather
than recommendations on the underlying policy.”
(http://www.publications.gc.ca/CollectionR/LoPBdP/CIR/8910-e.htm#D.%20The%20Badgley)
9
FINDINGS OF THE BADGLEY REPORT
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Sharp regional disparities …meant the Criminal
Code procedure for obtaining a legal therapeutic abortion was
in practice illusory for many Canadian women.
There was much concern among physicians about the
definition of health, and little uniformity as to how the concept
was interpreted.
The age at which a young, unmarried female is deemed
capable of giving consent to medical care and treatment is
within provincial jurisdiction, and the Committee found that
uncertainties in provincial laws had been allowed to affect the
hospitals' consent requirements for carrying out abortions.
Although there was no known legal requirement for the
consent of the father to a therapeutic abortion, more than
two-thirds of the hospitals it surveyed which carried out
abortions required the consent of the husband.
10
UNDERSTANDING CANADA’S SYSTEM
OF LAW AND JUSTICE
Canada’s System of Justice

Particularly relevant sections:
 The Canadian Constitution – pages 8 to 10
 Rights and Freedoms in Canada – pages 11 to 15
 The Court System – pages 16 to 18
 The Criminal Code – pages 21 to 24
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
http://www.justice.gc.ca/eng/dept-min/pub/just/img/courten.pdf
11
HTTP://WWW.418QE.COM/WP-CONTENT/UPLOADS/2012/04/CHARTER-OF-RIGHTS-AND-FREEDOMS.JPG
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CANADIAN CHARTER OF RIGHTS & FREEDOMS
Overview of the Canadian Charter of Rights and
Freedoms with brief explanations:


Section 7 – Legal Rights


http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/grt-eng.cfm
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http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/ov-apreng.cfm
 Section 1 – Guarantee of Rights and Freedoms

http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/lgl-eng.cfm
Section 15 – Equality Rights

http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/eql-egleng.cfm
Read the Canadian Charter of Rights and Freedoms
here: http://laws-lois.justice.gc.ca/eng/Const/page-15.html
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CHARTER OF
RIGHTS & FREEDOMS
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#1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and
democratic society.
#7. 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.
#15. Every individual is equal before and under the law
and has the right to the equal protection and equal
benefit of the law without discrimination and, in
particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
14
1988 : ABORTION AND THE
CANADIAN CONSTITUTION
Canadian Criminal Code sections on abortion
judged unconstitutional  struck from Code
 Judgement based on Canadian Charter of Rights
and Freedoms (1982)
 provisions #1 and #7

See full text of decision here:
 http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/288/index.do?r=AAAAAQAQbW9yZ2VudG
FsZXIgMTk4OAAAAAAB
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1988 - Supreme Court of Canada
R. v. Morgentaler, [1988] 1 S.C.R. 30
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SUPREME COURT MAJORITY DECISION
R. V. MORGENTALER 1988
Abortion – 10th Anniversary of Decision – 1998
 http://ms.radiocanada.ca/archives_new/2002/en/wmv/morgentaler19980128et2.wmv
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“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 a violation of security of the person”
 also noted that the procedures of gaining consent
of therapeutic abortion committee delays abortion
and thus increases risks to woman of the procedure
of abortion

[http://archives.cbc.ca/politics/rights_freedoms/topics/107-782/ ]
16
R. V. MORGENTALER, [1988] 1 S.C.R. 30
4 DIFFERENT DECISIONS
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3 concurring decisions were written:
 Chief Justice Dickson and Mr. Justice Lamer
authored the majority decision
 Mr. Justice Beetz and Mr. Justice Estey wrote a
second majority decision
 Madame Justice Wilson wrote a third majority
position
One dissenting decision was written
 Mr. Justice McIntyre and Mr. Justice La Forest
authored a dissenting position
17
SUMMARY OF THE MAJORITY
DECISION:
section 287 (then 251) of the Criminal Code
infringed a woman's right to security of the person;
 the process by which a woman was deprived of that
right was not in accord with fundamental justice;
 the state interest in protecting the fetus was
sufficiently important to justify limiting individual
Charter rights at some point; and
 the right to security of the person of a pregnant
woman was infringed more than was required to
achieve the objective of protecting the fetus, and
the means were not reasonable.

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http://publications.gc.ca/collections/Collection-R/LoPBdP/CIR/8910-e.htm
18
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“[E]very pregnant woman is told…that she cannot
submit to a generally safe medical procedure that
might be of clear benefit to her unless she meets
criteria entirely unrelated to her own priorities and
aspirations. Not only does the removal of decisionmaking power threaten women in a physical sense;
the indecision of knowing whether an abortion will be
granted inflicts emotional stress. Section 251 [of the
Criminal Code] clearly interferes with a woman's
bodily integrity in both a physical and emotional
sense.”
from the Majority Decision by Dickson & Lamer
19
FURTHERMORE, THE DECISION CONTINUES:
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“The evidence indicates that s. 251 causes a
certain amount of delay for women who are
successful in meeting its criteria. In the context of
abortion, any unnecessary delay can have
profound consequences on the woman's physical
and emotional well-being…
“…the earlier the abortion was performed, the
fewer the complications and the lower the risk of
mortality”
20
INTERESTS OF WOMAN
VS. INTERESTS OF FETUS
“the interest in the life or health of the pregnant woman
takes precedence over the interest of the state in the
protection of the foetus when the continuation of the
pregnancy would or would be likely to endanger the
pregnant woman’s life or health.”
 If an act of Parliament forces a pregnant woman
whose life or health is in danger to choose
between…the commission of a crime…and…
inadequate treatment or no treatment at all, her right to
security of the person has been violated.”
The Court did not rule whether “there would be a point in
time at which the state interest in the foetus would
become compelling.”

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21
MADAME JUSTICE BERTHA WILSON:
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“[T]he foetus should be viewed in differential and
developmental terms. This view of the foetus supports
a permissive approach to abortion in the early stages
where the woman's autonomy would be absolute and
a restrictive approach in the later stages where the
states' interest in protecting the foetus would justify its
prescribing conditions.”
22
MADAME JUSTICE BERTHA WILSON
“The precise point in the development of the foetus at
which the state's interest in its protection becomes
"compelling" should be left to the informed judgment
of the legislature which is in a position to receive
submissions on the subject from all the relevant
disciplines…It seems to me…that it might fall
somewhere in the second trimester.”
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At what point does the state’s interest in the foetus
become ‘compelling’ and justify state intervention in
what is otherwise a matter of purely personal and
private concern?
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LEGAL PERSONHOOD / MORAL PERSONHOOD



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
In Canada, fetuses are not considered legal
persons until they are born alive
Some moral positions on fetal status disagree
with this non-recognition of fetal personhood
prior to birth
Some moral positions on fetal personhood
agree with this position
Some might even allow for infanticide
Here are some additional considerations:
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SENTIENCE
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 Sentience is the ability to experience things by
means of our senses:
 visual, auditory, touch, taste, motion
 neurologically capable of experiencing pain
Does capacity for sentience confer moral status
or rights?
 animals are sentient beings
 fetuses become sentient at about 20
weeks
2
5
VIABILITY
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 Viability changes according to medical
technology; not just a biological assessment
 was 26-28 weeks; now can be closer to 24
weeks
 with research on ectogenesis, viability may
become a purely technological designation
 once ectogenesis is possible, would all
fertilized eggs have a moral right to life?
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MATERNAL / FETAL RELATIONSHIPS
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 Most women welcome and are able and willing to
nurture fetal life
 avoidable harms are avoided
 efforts are taken to protect the fetus
 nurturing care for the pregnant woman enhances
the well-being of fetal life
 some believe that efforts to designate fetuses as
persons with legal rights in contradiction to
maternal rights may be misguided
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MATERNAL / FETAL UNIT
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 Prior to birth, the pregnant woman and fetus is a
complex or composite unit
 structurally and qualitatively unique
 no comparable human relationship
 organic unity
 organic functioning of one inseparable from other
Physicians cannot treat a fetus independent of
the pregnant woman within whose body it exists
2
8
IN CONFLICT
WHOSE RIGHTS SHOULD PREVAIL?
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Jewish, Muslim, many Christian, many non-religious
people believe that women are already persons:
 thinking, self-aware, interactive, social beings
 fetuses are “not yet” persons
 late-term (maybe viable?) fetuses may have
substantial moral rights
 with agreement of pregnant woman, fetuses may
be cared for even at her expense
 but the legal choice is hers
 the fetus has no legal right to prenatal treatment
independent of the pregnant woman’s legal rights
29
LEGAL PERSONHOOD
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 Pregnant women have a right to autonomy, physical
integrity, and life
 forcibly treating a woman and/or her fetus without her
consent amounts to assault
“There is room for only one person with full and
equal rights inside a single human skin.”
Mary Anne Warren in “The Moral Significance of Birth”
According to Canadian law, live birth marks the
beginning of legal personhood
30
SINCE 1988 DECISION:

March 1989: The Supreme Court of Canada refused to rule on
Borowski's claim that fetuses have a constitutionally guaranteed
right to life.
1989: The Supreme Court ruled that a man has no legal right to
veto a woman's abortion decision.

1990: Bill C-43 would sentence doctors to two years in jail for
performing abortions where a woman's health is not at risk.

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
June 2007: Bill C-338 called for the re-criminalization of
abortions performed after the 20th week of gestation

June 2004: Conservative Leader Stephen Harper says he has
no plans to reintroduce abortion regulations.

March 2007: The Unborn Victims of Crime Act would establish
a separate offence for fetal homicide when a pregnant woman is
killed.
31
THE ONLY NEW RULING WAS THAT A MAN HAS “NO LEGAL
RIGHT TO OPPOSE” A WOMAN’S ABORTION DECISION
this something that you think should be
done?
 Try to formulate an abortion law that might
be consistent with the constitutional rights of
pregnant women
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Do you think that it would be possible to
introduce abortion legislation that would not
infringe on the constitutional rights of
pregnant women?
 Is
32
MAY 2013
ABORTION RIGHTS ACTIVIST DR. HENRY
MORGENTALER DIES AT 90
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http://www.cbc.ca/news/c
anada/abortion-rightsactivist-dr-henrymorgentaler-dies-at-901.1321542
Morgentaler survived a five-year stay in
the Nazi concentration camps of
Auschwitz and Dachau where his parents
were killed.
"By fighting for reproductive freedom,
and making it possible, I have made a
contribution to a safer and more caring
society where people have a greater
opportunity to realize their full potential,"
he said in 2005, shortly after receiving his
honorary doctor of law degree from the
University of Western Ontario in London.
"Well-loved children grow into adults who
do not build concentration camps, do not
rape and do not murder," he said.
33
DEATH OF DR. GARSON ROMALIS
31 JANUARY 2014
http://www.theglobeandmail.com/news/british-columbia/garson-romalis-riskedhis-life-to-perform-abortions/article17052093/?page=all
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“Early on the morning of Nov. 8, 1994, as Dr. Romalis sat
down for breakfast in his west side Vancouver home, a
sniper’s bullet smashed through the glass doors of his
kitchen and tore into his left thigh. Gravely wounded, he
fell to the floor, blood pouring from a large severed artery.
Only his quick application of a tourniquet, using the belt
from his bathrobe, prevented Dr. Romalis from bleeding to
death…
“Dr. Romalis remained firm in his resolve to provide a safe,
legal service for women, many of whom, he noted, were in
the biggest trouble of their lives.
“’By performing a five-minute operation, in comfort and
dignity, I can give them back their lives,’ he would say.”
34
ADDITIONAL GOVERNMENT OF
CANADA RESOURCES:
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Abortion: Constitutional and legal developments
 Mollie Dunsmuir, Law and Government Division; 18 August 1998
 http://www.publications.gc.ca/Collection-R/LoPBdP/CIR/8910e.htm
Abortion in Canada: Twenty Years After R. v. Morgentaler
 Karine Richer, Law and Government Division; 24 September
2008
 http://www.parl.gc.ca/content/LOP/ResearchPublications/prb0822
-e.htm; also at
http://www.parl.gc.ca/content/LOP/ResearchPublications/prb0822
-e.pdf
R. v. Morgentaler, [1988] 1 S.C.R. 30
 http://scc.lexum.org/decisia-scc-csc/scc-csc/scccsc/en/item/288/index.do?r=AAAAAQAQbW9yZ2VudGFsZXIgMT
k4OAAAAAAB
35