The procedure and process of an abortion in its entirety was a crime in Canada for mothers, and medical assistants involved until 1988, when the Supreme Court of Canada deemed it unconstitutional and struck it down. Since 1998, abortion has been legal, with no criminal consequence whatsoever, no matter which stage of the pregnancy the women is at. It is even publically funder under the Canada Health Act. Access to abortion services vary across the country and to this day remains a divisive issue in our government especially between liberals and conservatives. On of the earliest abortion cases documented in Canadian law occurred in 1879, regarding Emily Stowe. She was charged and later acquitted after a long trial of performing an abortion on a patient through drugs. This case is significant on how serious abortion was taken in our nations earliest days and the changing attitude of the topic.
Priot to 1969, performing an abortion was a crime under Section 251 of the Criminal Code. The maximum penalty for medical assistants involved in a women’s abortion was life imprisonment while the women would get only 2 years. That year, the government of Pierre Trudeau amended the Criminal Code using 2/3 approval, approving some doctors to perform abortions in special hospitals if a women’s life was in danger. A high profile team of doctors were required to approve the procedure. Other then in life-threatening cases, abortion remained illegal as it should. I can personally approve of this law if the mother’s health is in serious trouble. As time went on, the 70s and 80s, were a time of great debate for pro-life and pro-choice groups. The minimal leniency given by Trudeau’s government angered pro-life groups while not being enough for pro-choice activists. Lobby groups tried to influence legislatures with public demonstrations in Ottawa.
Henry Morgentaler is a household name in pro-choice history looking to expand Canadian abortion rights. He is famous in R. vs. Morgentaler cases. In 1973 he was prosecuted for completing undocumented, private abortions for anyone who desired. He was acquitted by a jury in 1973, but that ruling was overturned after appeals from both the Québec Court of Appeal and the Supreme Court of Canada forcing Morgentaler served a prison term. Morgentaler broke the law without any permission and knew exactly what he was doing, completely deserving his punishment. He was said to have desired money and failed to care about the right to life.
The Supreme Court established that doctors can be held innocent if not performing an abortion causes a worse result for the womens health. This was an odd case and there was no defence available for Morgentaler. Similar to today, the legal debate was centred around the question of whether a fetus has a right to their own life, not just the mothers. Women’s rights activists pushed for female choice and desire to choose when they can stop their pregnancy. Pregnancy is a natural encounter and natural encounters are decided the way they’re meant to be, by God. The women have no right to choose when its convenient for her to kill a living being. Further Legal debates were initiated by a man of the Manitoba Legislature, Joseph Borowski, who was on the behalf of anti-abortion. Cases of individual rights were undetermined and not settled in any court cases until 1988.
In 1988, Morgantaler was tried again and persecuted for continuing abortions. His case R. v Morgentaler returned to the Supreme Court, which now compared his actions to the freshly implemented Charter of Rights and Freedoms from 1982. The court shockingly found that the Criminal Code had a provision on abortion as it violated a woman’s right to “life, liberty and security of the person” guaranteed under Section 7 of the Charter. This is an odd and historic ruling, setting presented to future abortion abilities in Canada. Women were in the midst of experiencing life, in a free country of Canada, while being safe and secure. Rather the baby inside of her was denied the right to life, future freedoms, and safety in the womb. The law sided secularly for the ending of innocent lives. As a result of this case, millions of babies have been aborted.
The court did not rule there was an official right to abortion under the Charter but systems were changed to allow abortions easier without punishment. Still, abortion was extremely strict needing requests. Due to this, the abortion law was struck down though it technically remains in our Criminal Code. This means anti-abortion rules are considered to be unconstitutional and cant be enforced. No laws have been implemented to replace it, nor is it expected anytime soon, and abortion has remained nationally legal since 1988.
At the same time, the fetal rights issue was debated in 1989 in the case Tremblay v Daigle, where Supreme Court deemed only a person had constitutional rights beginning at the time of birth. This choice proves to be a big mistake, and one Canada must bounce back from in my opinion. The government is discriminating against the fetus who in a little longer time will be born and should be of same equal status as the mother like the charter states in section 15 . The government offers no compromise and fully sides pro-choice denying the right of life.