How Canada's "best" judges opened the door to abortion for a generation

For over 23 years Canada has had no laws protecting life

Justice Bertha Wilson was the first
female judge on the Supreme Court
of Canada. She ruled in favour of
controversial abortion specialist
Dr. Henry Morgentaler

 An entire generation has now grown up with the right and power to freely dispose of unborn life. January 28 marked the 23rd anniversary of a landmark Supreme Court of Canada decision, which has led to Canada being the only Western country without abortion regulations.

It was 1988, and Canada's legal entities were defining the four year old Charter of Rights and Freedoms. It was on that January day the Charter was tested, and it sure didn't represent the rights of the unborn.

The case surrounded Dr. Henry Morgentaler, who has been at the centre of the abortion debate in Canada for over 40 years. After being arrested in 1970 and 1983 for obstructing Canada's abortion laws to his benifit, Morgentaler appealed to Canada's highest court. Both charges were previously acquitted by a trial jury, but overturned by the Quebec Court of Appeal (1970) and the Court of Appeal for Ontario (1983.)

The Supreme Court of Canada heard Morgentaler's appeal for the 1983 charge. Morgentaler and two of his associates were arrested in Toronto for opening an abortion clinic. They performed abortions on women who didn't obtain a hospital committee certificate. Back then the law stated that women can only obtain an abortion if three or more doctors agreed the pregnancy was a danger to the woman's health.

Dr. Henry Morgentaler beside NDP Leader Jack Layton.
Morgentaler was given the Order of Canada in 2008
for his abortion activism

Canada's highest court started hearing the case in 1986. Two years later five of the seven panel justices ruled in favour of Morgentaler. He and his lawyer argued that the provisions in the criminal code were contradictory to the rights guaranteed by the Charter of Rights and Freedoms. Their main argument was section seven, which states, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof accept in accordance with the principles of fundamental justice."

"The right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives. The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does," said Bertha Wilson, one of the five judges who ruled in favour of Mongentaler along with Justices Jean Beetz, Willard ("Bud") Estey, and Chief Justice Brian Dickson.

Justices William McIntyre and Gérard La Forest were the two justices who ruled against Mongentaler. They believed this decision allowed the courts to decide on a topic that should be decided by parliament.

"The proposition that women enjoy a constitutional right to have an abortion is devoid of support in the language of s. 7 of the Charter or any other section," said McIntyre commenting on his decision.

"The solution to this 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."

All seven Supreme Court Justices were hopeful parliament would enact legislation clearly defining abortion law in Canada. However after 17 attempts, and five different governments over 23 years, no legislation has been passed. Leaving the Courts landmark Morgentaler ruling the final word on Canada's abortion laws, or lack thereof.