http:\/\/www.canlii.org\/en\/ca\/scc\/doc\/1988\/1988canlii90\/1988canlii90.html<\/a><\/span><\/p>\n <\/p>\n
*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”<\/em> by Shelley A.M. Gavigan the pro-choice author writes, “The Supreme Court\u2019s 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.”<\/strong><\/span> (The Politics of Abortion<\/em>, pg.118)<\/span><\/p>\n <\/span><\/strong><\/span><\/p>\n1. What the judges said: (Note: emphasis has been added in the quotes below.)<\/em><\/span><\/strong><\/span><\/p>\n <\/span><\/strong><\/span><\/p>\nDickson C.J.C.:<\/span><\/strong><\/span><\/p>\n <\/span><\/p>\n\u201cLike Beetz and Wilson JJ., I agree that protection of foetal interests by<\/em><\/span><\/p>\nParliament is also a valid governmental objective. It follows that balancing these interests,<\/span><\/em><\/span><\/p>\nwith the lives and health of women a major factor, is clearly an important governmental<\/span><\/em><\/span><\/p>\nobjective.<\/span><\/em>\u201d<\/span><\/em><\/span><\/p>\nLamer J. concurs with Dickson C.J.C.<\/span><\/strong><\/span><\/p>\n <\/span><\/strong><\/span><\/p>\nBeetz J.:<\/span><\/strong><\/span><\/p>\n <\/span><\/p>\n\u201c…. Parliament seeks to assure that there is a reliable, independent and medically<\/span><\/p>\nsound opinion that the continuation of the pregnancy would or would be likely to endanger the<\/span><\/p>\nwoman\u2019s life or health. Whatever the failings of the current system, I believe that the purpose<\/span><\/p>\npursuant to which it was adopted does not offend the principles of fundamental justice. As I<\/span><\/p>\nshall endeavour to explain, the current mechanism in the Criminal Code does not accord with<\/span><\/p>\nthe principles of fundamental justice. This does not preclude, in my view, Parliament from<\/em><\/span><\/p>\nadopting 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<\/span><\/em><\/span><\/p>\nsound opinion.\u201d<\/span><\/em><\/span><\/p>\n <\/span><\/p>\n\u201cParliament is justified in requiring a reliable, independent and medically<\/span><\/em><\/span><\/p>\nsound opinion in order to protect the state interest in the foetus.<\/span><\/em>This is undoubtedly the<\/span><\/span><\/p>\nobjective of a rule which requires an independent verification of the practising physician\u2019s<\/span><\/p>\nopinion that the life or health of the pregnant woman is in danger.\u201d<\/span><\/p>\n\u201cThe assertion that an independent medical opinion, distinct from that of the<\/span><\/p>\npregnant woman and her practising physician, does not offend the principles of fundamental<\/span><\/p>\njustice would need to be re-evaluated if a right of access to abortion is founded upon the right to<\/span><\/p>\n\u201cliberty\u201d in s. 7 of the Charter<\/em>. I am of the view that there would still be circumstances in which<\/span><\/p>\nthe state interest in the protection of the foetus would require an independent medical opinion as<\/span><\/p>\nto the danger to the life or health of the pregnant woman. Assuming without deciding that a<\/em><\/span><\/p>\nright of access to abortion can be founded upon the right to \u201cliberty\u201d, there would be a<\/span><\/em><\/span><\/p>\npoint in time at which the state interest in the foetus would become compelling. From this<\/span><\/em><\/span><\/p>\npoint in time, Parliament would be entitled to limit abortions to those required for<\/span><\/em><\/span><\/p>\ntherapeutic reasons and therefore require an independent opinion as to the health<\/span><\/em><\/span><\/p>\nexception.\u201d<\/span><\/em><\/span><\/p>\n <\/span><\/p>\n\u201c I am of the view that the protection of the foetus is and, as the Court of<\/span><\/em><\/span><\/p>\nAppeal observed, always has been, a valid objective in Canadian criminal law.<\/span><\/em>I have<\/span><\/span><\/p>\nalready elaborated on this objective in my discussion of the principles of fundamental justice. <\/strong>I<\/em><\/span><\/p>\nthink s. 1 of the Charter authorizes reasonable limits to be put on a woman\u2019s right having<\/span><\/em><\/span><\/p>\nregard to the state interest in the protection of the foetus.\u201d <\/span><\/em><\/span><\/p>\nEstey J. concurs with Beetz J.<\/span><\/strong><\/span><\/p>\n <\/span><\/strong><\/span><\/p>\nMcIntyre J. (dissenting):<\/span><\/strong><\/span><\/p>\n <\/span><\/p>\n\u201cI would only add that even if a general right to have an abortion could be found<\/span><\/p>\nunder s. 7 of the Charter, it is by no means clear from the evidence the extent to which such a<\/span><\/p>\nright could be said to be infringed by the requirements of s. 251 of the Code. In the nature of<\/span><\/p>\nthings that is difficult to determine. The mere fact of pregnancy, let alone an unwanted<\/span><\/p>\npregnancy, gives rise to stress. The evidence reveals that much of the anguish associated with<\/span><\/p>\nabortion is inherent and unavoidable and that there is really no psychologically painless way to<\/span><\/p>\ncope with an unwanted pregnancy.\u201d<\/span><\/p>\n <\/span><\/p>\n\u201cIt is for these reasons I would conclude, that save for the provisions of the<\/span><\/em><\/span><\/p>\nCriminal Code, which permit abortion where the life or health of the woman is at risk, no right<\/span><\/em><\/span><\/p>\nof abortion can be found in Canadian law, custom or tradition, and that the Charter, including s.<\/span><\/em><\/span><\/p>\n7, creates no further right.<\/span><\/em> Accordingly, it is my view that s. 251 of the Code does not in its<\/span><\/span><\/p>\nterms violate s. 7 of the Charter.\u201d<\/span><\/p>\n <\/span><\/p>\n\u201cBefore leaving this case, I wish to make it clear that I express no opinion on the<\/span><\/p>\nquestion of whether, or upon what conditions, there should be a right for a pregnant woman to<\/span><\/p>\nhave an abortion free of legal sanction. No valid constitutional objection to s. 251 of the<\/span><\/p>\nCriminal Code has, in my view, been raised and, consequently, if there is to be a change in the<\/span><\/p>\nlaw concerning this question it will be for Parliament to make. Questions of public policy<\/span><\/p>\ntouching on this controversial and divisive matter must be resolved by the elected Parliament. It<\/span><\/p>\ndoes not fall within the proper jurisdiction of the courts. Parliamentary action on this matter is<\/span><\/p>\nsubject to judicial review but, in my view, nothing in the Canadian Charter of Rights and<\/span><\/p>\nFreedoms gives the Court the power or duty to displace Parliament in this matter involving, as<\/span><\/p>\nit does, general matters of public policy.\u201d<\/span><\/p>\n <\/span><\/p>\n\u201cThe solution to [the abortion] question in this country must be left to Parliament.<\/span><\/p>\nIt is for Parliament to pronounce on and to direct social policy. This is not because Parliament<\/span><\/p>\ncan claim all wisdom and knowledge but simply because Parliament is elected for that purpose<\/span><\/p>\n