R. v. Morgentaler


 * ''This article is about the 1988 decision by the Supreme Court of Canada. For the 1976 decision, see Morgentaler v. The Queen.  For the 1993 decision, see R. v. Morgentaler (1993)

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 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 are no laws regulating abortion in Canada.

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 hospital'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 section 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 Ontario Court of Appeal 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.

Ruling
The Court ruled 5 to 2 that the law violated section 7 and could not be saved under section 1 despite the fact that it was not beyond the authority (ultra vires) of government to create such a law. However, 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 Dickson C.J., with Lamer J. (as he was then known) 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 claimed that the administrative system failed to provide adequate evaluation criteria which allowed the committees to grant or deny therapeutic abortions almost arbitrarily at times.

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 way beyond what was necessary to evaluate their case. Third, the effect of the impairment far outweighted 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.

Both opinions notably omit any analysis of whether the fetus had any rights protected by the Charter.

In examining whether the law was ultra vires, Beetz examine 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.

Wilson
Wilson J. wrote her own concurring opinion taking a significantly different approach. In it she decided that section 251 violates all three rights: life, 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 7 (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 thatThe decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual.

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 review 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 Senate on a tie vote, leaving Canada without legislation governing abortion. Succeeding governments have avoided the controversial issue.

Academics have since noted that the government could potentially reinstate the abortion law only if it could overcome the "manifest unfairness" created 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 a person in common law or in Quebec statutes.