1988 Supreme Court Decision

 

Morgentaler, Smoling and Scott v. The Queen

[Indexed as R. v. Morgentaler]

 

What the judges said about Parliament being within its rights

to protect the foetus, and why the law was struck down

 

Full text of the decision can be found at: http://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html

*NOTE: All sides of this debate acknowledge that this decision did not grant Canadian women a 'right' to abortion. In an essay titled, "Morgentaler and Beyond: Abortion, Reproduction, and the Courts" by Shelley A.M. Gavigan the pro-choice author writes, "The Supreme Court’s decision, profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue." (The Politics of Abortion, pg.118)

 

1. What the judges said: (Note: emphasis has been added in the quotes below.)

 

Dickson C.J.C.:

 

“Like Beetz and Wilson JJ., I agree that protection of foetal interests by

Parliament is also a valid governmental objective. It follows that balancing these interests,

with the lives and health of women a major factor, is clearly an important governmental

objective.

Lamer J. concurs with Dickson C.J.C.

 

Beetz J.:

 

“.... Parliament seeks to assure that there is a reliable, independent and medically

sound opinion that the continuation of the pregnancy would or would be likely to endanger the

woman’s life or health. Whatever the failings of the current system, I believe that the purpose

pursuant to which it was adopted does not offend the principles of fundamental justice. As I

shall endeavour to explain, the current mechanism in the Criminal Code does not accord with

the principles of fundamental justice. This does not preclude, in my view, Parliament from

adopting another system, free of the failings of s. 251(4), in order to ascertain that the life or health of the pregnant woman is in danger, by way of a reliable, independent and medically

sound opinion.”

 

“Parliament is justified in requiring a reliable, independent and medically

sound opinion in order to protect the state interest in the foetus.This is undoubtedly the

objective of a rule which requires an independent verification of the practising physician’s

opinion that the life or health of the pregnant woman is in danger.”

“The assertion that an independent medical opinion, distinct from that of the

pregnant woman and her practising physician, does not offend the principles of fundamental

justice would need to be re-evaluated if a right of access to abortion is founded upon the right to

“liberty” in s. 7 of the Charter. I am of the view that there would still be circumstances in which

the state interest in the protection of the foetus would require an independent medical opinion as

to the danger to the life or health of the pregnant woman. Assuming without deciding that a

right of access to abortion can be founded upon the right to “liberty”, there would be a

point in time at which the state interest in the foetus would become compelling. From this

point in time, Parliament would be entitled to limit abortions to those required for

therapeutic reasons and therefore require an independent opinion as to the health

exception.”

 

“ I am of the view that the protection of the foetus is and, as the Court of

Appeal observed, always has been, a valid objective in Canadian criminal law.I have

already elaborated on this objective in my discussion of the principles of fundamental justice. I

think s. 1 of the Charter authorizes reasonable limits to be put on a woman’s right having

regard to the state interest in the protection of the foetus.”

Estey J. concurs with Beetz J.

 

McIntyre J. (dissenting):

 

“I would only add that even if a general right to have an abortion could be found

under s. 7 of the Charter, it is by no means clear from the evidence the extent to which such a

right could be said to be infringed by the requirements of s. 251 of the Code. In the nature of

things that is difficult to determine. The mere fact of pregnancy, let alone an unwanted

pregnancy, gives rise to stress. The evidence reveals that much of the anguish associated with

abortion is inherent and unavoidable and that there is really no psychologically painless way to

cope with an unwanted pregnancy.”

 

“It is for these reasons I would conclude, that save for the provisions of the

Criminal Code, which permit abortion where the life or health of the woman is at risk, no right

of abortion can be found in Canadian law, custom or tradition, and that the Charter, including s.

7, creates no further right. Accordingly, it is my view that s. 251 of the Code does not in its

terms violate s. 7 of the Charter.”

 

“Before leaving this case, I wish to make it clear that I express no opinion on the

question of whether, or upon what conditions, there should be a right for a pregnant woman to

have an abortion free of legal sanction. No valid constitutional objection to s. 251 of the

Criminal Code has, in my view, been raised and, consequently, if there is to be a change in the

law concerning this question it will be for Parliament to make. Questions of public policy

touching on this controversial and divisive matter must be resolved by the elected Parliament. It

does not fall within the proper jurisdiction of the courts. Parliamentary action on this matter is

subject to judicial review but, in my view, nothing in the Canadian Charter of Rights and

Freedoms gives the Court the power or duty to displace Parliament in this matter involving, as

it does, general matters of public policy.”

 

“The solution to [the abortion] question in this country must be left to Parliament.

It is for Parliament to pronounce on and to direct social policy. This is not because Parliament

can claim all wisdom and knowledge but simply because Parliament is elected for that purpose

in a free democracy and, in addition, has the facilities—the exposure to public opinion and

information—as well as the political power to make effective its decisions.”

La Forest J. concurs with McIntyre J.

 

 

 

Wilson J.:

 

“It would be my view, and I think it is consistent with the position taken by the

United States Supreme Court in Roe v. Wade, that the value to be placed on the foetus as

potential life is directly related to the stage of its development during gestation….in balancing

the state’s interest in the protection of the foetus as potential life under s. 1 of the Charter

against the right of the pregnant woman under s. 7 greater weight should be given to the state’s

interest in the later stages of pregnancy than in the earlier. The foetus should accordingly, for

purposes of s. 1, be viewed in differential and developmental terms.”

 

“A developmental view of the foetus, on the other hand, supports a permissive

approach to abortion in the early stages of pregnancy and a restrictive approach in the later

stages. In the early stages the woman's autonomy would be absolute; her decision, reached in

consultation with her physician, not to carry the foetus to term would be conclusive. The state

would have no business inquiring into her reasons. Her reasons for having an abortion

would, however, be the proper subject of inquiry at the later stages of her pregnancy

when the state’s compelling interest in the protection of the foetus would justify it in

prescribing conditions. The precise point in the development of the foetus at which the

state’s interest in its protection becomes “compelling” I leave to the informed judgment of

the legislature which is in a position to receive guidance on the subject from all the

relevant disciplines. It seems to me, however, that it might fall somewhere in the second

trimester.”

 

 

2. Why the abortion law was struck down:

 

Only one of the seven judges, Justice Wilson, found a constitutional right to abortion, but even

then, only in the early stages of pregnancy: “In the early stages the woman’s autonomy would

be absolute…. Her reasons for having an abortion would, however, be the proper subject of

inquiry at the later stages of her pregnancy when the state’s compelling interest in the protection

of the foetus would justify it in prescribing conditions.”

The two dissenting judges, McIntyre and La Forest, found that the abortion law (Section 251 of

the Criminal Code, currently Section 287), was not unconstitutional.

The four judges in the majority opinion, Dickson, Lamer, Beetz and Estey, did not find a right

to abortion, but did find that Section 251 was unconstitutional for procedural and administrative

reasons that impacted on a woman’s Charter 7 right to “security of the person.” For example,

not all women had equal access to therapeutic abortion committees and hospitals performing

abortions, and delays caused by the system could prevent a woman whose life or health was

endangered by the pregnancy from obtaining an abortion until later in the pregnancy when the

abortion becomes more dangerous to the woman’s health, or could prevent her from getting the

abortion altogether. (Remember, the law allowed abortion only when the woman’s life or health

was at risk; it was never meant to allow ‘abortion on demand.’ ) So these judges felt this was a

clear violation of a woman’s right to “security of the person.” In addition, there was “the

absence of any clear legal standard to be applied by the committee in reaching its decision” as

to whether a woman's life or health was at risk because the law did not provide any definition of “health.” (Dickson).

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