In 1969, Henry Morgentaler quit his general medical practice and began to specialize in performing abortions outside of a hospital, defying s. 251 of the Criminal Code.1 He flaunted his illegal activity in order to challenge the law, and between 1974 and 1988, was in and out of prison. For example, in 1973, Morgentaler publicly announced that he illegally performed 5,000 abortions and invited a camera crew to watch him perform another one. He was quickly arrested and sent to court. There, Morgentaler argued the abortions he performed were necessary, citing the Bourne Defence and s. 45 of the Criminal Code. Though acquitted by some juries who saw his case, higher courts, including the Supreme Court, all sided with the government and sent Morgentaler to jail for breaking the law.
Prison did not stop Morgentaler’s crusade. Every time he was released, he continued to perform abortions and was once again re-arrested. The last time Morgentaler was imprisoned, he used the newly created Charter of Rights to defend himself. In his defence, Morgentaler used s. 7 of the Charter.2 Morgentaler and two other abortion providers argued that the law against abortion was unconstitutional because it infringed on women’s right to “life, liberty and security of person.” The Charter allowed Morgentaler to turn the abortion issue from one of health to one of freedom for Canadian women, which finally lead to his victory. The Supreme Court struck down the law because women did not have equal access to abortion across Canada.
However, the courts did not say that there should be no federal legislation regulating abortion or protecting pre-born children. In fact, all of the judges in their written opinions argued that “the court cannot presume to resolve all of the competing claims advanced in vigorous healthy, public debate.”3 The judges called Parliament, which is suppose to reflect the will of the people, to act on the issue.
Even Justice Bertha Wilson, the strongest advocate of the right to choose abortion, argued for a “developmental view” of abortion law.4 In other words, though she believed abortion should be protected as part of women’s “right to liberty,” even she felt that liberty could be curtailed at some point in the pregnancy. She argued that elected politicians should determine the point where the right to abortion may be curtailed:
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.5
That sentiment was echoed in subsequent abortion-related and fetal rights cases.
- Childbirth by Choice
- Section 7: “Everyone has the right to life, liberty and the security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
- J. Sopinka, R. v. Morgentaler, Morality and the Criminal Law, Canadian Constitutional Law, Vol. I, P. Macklem et al. eds., Emond Montgomery Publications Ltd., Toronto, 1994, 533.
- Raymond Tatalovich, The Politics of Abortion in the United States and Canada, M.E. Sharpe, Armonk, New York, 1997, 77.
- Tatalovich, 77