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Supriya Dwivedi Headshot

Morgentaler 25 Years Later: We've Come a Long Way Baby

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Twenty-five years ago today, the highest court in Canada handed down a landmark ruling that would forever change the scope of women's rights in this country. In 1988, following the Supreme Court of Canada judgment, R. v. Morgentaler, it was found that the constraints placed on abortion were unconstitutional, and subsequently classified the termination of a pregnancy as a healthcare issue.

Many people erroneously believe that the Morgentaler decision decriminalized abortion, whereas the procedure was actually de-criminalized in Canada in 1969, following the passage of the Criminal Law Amendment Act, amending section 251 of the Criminal Code. This allowed abortions to take place only at accredited hospitals, subject to the approval of a three-doctor committee, known as the Therapeutic Abortion Committee, when the health of the mother was at stake. However, this law led to very different interpretations, as the term health was not defined. Accordingly, a woman's access to abortion varied significantly, resulting in unequal and uneven access to abortion.

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That's where Drs. Henry Morgentaler, Leslie Frank Smoling and Robert Scott came in. Believing that the decision of whether or not to carry a pregnancy to term was the sole choice of the woman, these doctors set up an abortion clinic in Toronto in order to provide the medical procedure to women who had not received the authorization from the Therapeutic Abortion Committee. In 1983, all three doctors were charged with unlawfully procuring miscarriages.

The essential issue before the Supreme Court was whether the provisions in the Criminal Code unjustifiably infringed on a woman's right to "life, liberty and security of the person," as guaranteed by section 7 of the Charter of Rights and Freedoms. In a split 5-2 judgment, with no opinion garnering more than two signatures, the Court found that s. 251 of the Criminal Code violated s. 7 of the Canadian Charter of Rights and Freedoms and could not be demonstrably justified in a free and democratic society as per s. 1 of the Charter.

The anti-choice camp has derided this judgment as imposing a feckless, and ultimately lawless, regime governing abortion. I would propose, however, that they look at the Morgentaler decision through a legal lens. In taking out the emotional and religious rhetoric that is so often associated with abortion, the decision can be seen for what it really is: guaranteeing a woman's right to equality in this country.

Prior to the Morgentaler decision, the Badgely Report on access to abortion in Canada concluded that "the procedures set out for the operation of Abortion Law are not working equitably across Canada," further asserting that for some women obtaining an abortion was "practically illusory." Additionally, women were subject to a panel that almost always consisted of men who had the right to arbitrarily determine a woman's fate as they saw fit. The Morgentaler judgment rectified this as best it could.

History demonstrates that a society's attitude towards abortion is inextricably linked with its perceptions of women and their role in the family, religiosity, and social conservatism. The Morgentaler decision represented a large step forward for our country, as the Court broke free of the archaic outlook and constraints our society placed on women. I shall forever be perplexed as to why some people are unable to see that as anything but positive.