Why the confusion?<\/strong><\/p>\n

One of the reasons for the confusion is that Morgentaler <\/em>is not really one decision \u2013 it\u2019s four decisions. Every time Canada\u2019s Supreme Court hears a case, each sitting judge has the option to write their own decision and the reasoning for it. In Morgentaler, <\/em>four judges opted to do so.<\/p>\n

<\/p>\n

Three of the decisions, endorsed by a total of five judges, struck down the existing abortion law, while one decision, endorsed by two of the judges, would have upheld the law. This means that while the result is clear \u2013 the previous abortion law was struck down as unconstitutional \u2013 the reason why<\/em> is not at all clear, because five different judges arrived at the conclusion in three different ways.<\/p>\n

This means that when we draw conclusions from the Morgentaler<\/em> case regarding abortion in Canada, it must be done with qualifications and by drawing from the various reasons.<\/p>\n

While it is difficult to get a clear sense of what Canada\u2019s law is from this case, there are three main takeaways that everyone in the pro-life movement should know from Morgentaler.<\/em><\/p>\n

#1: The Court did not decide the abortion question.<\/strong><\/p>\n

The Supreme Court did not demand abortion to be legal. They merely found that the former system involving hospital-run committees was arbitrary and unfair.<\/p>\n

Chief Justice Dickson wrote in his decision: \u201c[T]he task of this Court in this is not to solve nor seek to solve what might be called the abortion issue, but simply to measure the content of s. 251 [the law on abortion at the time] against the Charter.\u201d<\/p>\n

The Supreme Court justices did not decide whether abortion is or is not moral. They did not consider the humanity of the pre-born child nor (with the exception of Justice Wilson\u2019s decision) whether women should or should not have a right to abortion. Instead, they started from the premise that abortion was legal at that time and they examined that law specifically.<\/p>\n

In 1969, an amendment to the Criminal Code <\/em>was passed by Parliament that created an exception to the general illegality of abortion. In practical terms, abortion was illegal unless the pregnant woman received a certificate from a Therapeutic Abortion Committee appointed by a hospital that continuing the pregnancy \u201cwould or would be likely to endanger her life or health.\u201d It was this system that the Supreme Court was looking at in the Morgentaler <\/em>decision. And, to put it succinctly, they found this system of approving abortions to be arbitrary and unfair because hospitals could refuse to appoint a committee, or a committee could take a long time to make the decision, meaning the abortion happened later in pregnancy and had more health implications. Therefore, the majority of judges found a breach of the Charter\u2019s <\/em>section 7 guarantee of life, liberty and the security of the person.<\/p>\n

#2: The Court did not find a right to abortion for women.<\/strong><\/p>\n

Justice Beetz articulated this clearly, saying that, given the abortion law\u2019s placement in the Criminal Code, <\/em>it \u201ccannot be said to create a \u2018right\u2019 [to abortion], much less a constitutional right, but it does represent an exception decreed by Parliament.\u201d Chief Justice Dickson didn\u2019t even consider the question, but merely focused on the specific regime chosen by Parliament.<\/p>\n

Some of the confusion around this point is possibly due to Roe v Wade <\/em>in the US which did<\/em> find a right to abortion for women. Canada\u2019s law does not have an equivalent decision. To quote current Supreme Court Justice Sheilah Martin (appointed in 2018 by Prime Minister Trudeau), \u201cthe Supreme Court did not clearly articulate a woman\u2019s right to obtain an abortion\u2026 and left the door open for new criminal abortion legislation when it found that the state has a legitimate interest in protecting the fetus.\u201d<\/p>\n

The one nuance to this point comes out of Justice Bertha Wilson\u2019s decision. Writing alone (meaning her reasons were not endorsed by the other judges), she found that women \u201cdo have a degree of personal autonomy over important decisions intimately affecting their private lives\u201d which included in some circumstances the choice to have an abortion. But it should be noted that, in her own estimation, this was not without limits. Which leads us to our third takeaway.<\/p>\n

#3: The Court expected Parliament to pass a new abortion law.<\/strong><\/p>\n

Justice Bertha Wilson, after finding women ought to have a \u201cdegree of personal autonomy,\u201d limited this by saying a woman\u2019s \u201creasons for having an abortion would, however, be the proper subject of inquiry at the later stages of her pregnancy when the state\u2019s 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\u2019s interest in its protection becomes \u201ccompelling\u201d I leave to the informed judgment of the legislature.\u201d<\/p>\n

In other words, Justice Wilson expected and endorsed a law restricting abortion at least in the later stages of pregnancy. She doesn\u2019t dictate what that law should be, because that is not the role of the Court. It is Parliament\u2019s role as the institution responsible for passing laws in Canada. The Court\u2019s role is limited to examining laws in light of the Charter, <\/em>as they did in Morgentaler.<\/em><\/p>\n

Conclusion<\/strong><\/p>\n

The Morgentaler <\/em>decision did strike down the previous abortion law and, due to the inaction of Parliament, Canada has had no abortion law since. But, in the Morgentaler<\/em> decision, the Supreme Court was not intending to settle a question about abortion\u2019s legal status, did not discuss what rights the pre-born child should have, did not find a right to abortion, and properly looked to Parliament to consider these vital questions and then pass appropriate legislation.<\/p>\n

This is why we focus on Parliament, urging them to answer the call of Morgentaler, <\/em>including the call from Justice Bertha Wilson to legislate with reference to their \u201cinterest in the protection of the foetus.\u201d All these years later, Parliament needs to do what it should have done then: pass a law that begins to recognize the human rights of the pre-born child.<\/p><\/div><\/div><\/div>\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":3014,"featured_media":4824,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[281,284,280],"tags":[],"_links":{"self":[{"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/posts\/4821"}],"collection":[{"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/users\/3014"}],"replies":[{"embeddable":true,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/comments?post=4821"}],"version-history":[{"count":6,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/posts\/4821\/revisions"}],"predecessor-version":[{"id":4864,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/posts\/4821\/revisions\/4864"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/media\/4824"}],"wp:attachment":[{"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/media?parent=4821"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/categories?post=4821"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/test.weneedalaw.ca\/wp-json\/wp\/v2\/tags?post=4821"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}