R. v. Morgentaler, [1988] 1 S.C.R. 30, Supreme Court of Canada (Dickson C.J., Beetz, Estey, McIntyre, Lamer, Wilson & La Forest JJ), decided 28 January 1988.

Introduction

R v Morgentaler is one of the most influential constitutional decisions in Canadian legal history. The case concerned Canada’s abortion laws under section 251 of the Criminal Code and their compatibility with the rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms.¹ The Supreme Court of Canada considered whether the framework governing access to abortion at the time unjustifiably infringed upon a woman’s right to life, liberty, and security of the person.² The Court ultimately declared the provisions unconstitutional, because the procedural requirements imposed significant barriers to accessing legal abortions and were inconsistent with the principles of fundamental justice guaranteed by the Charter. The decision represents a turning point in the Canadian legal system, as it expanded the interpretation of section 7 and reinforced the Charter’s protection of individual autonomy. In the nearly four decades since the decision, it has continued to influence legal discussions regarding reproductive rights and constitutional freedoms in Canada.

Facts of the Case

Before the decision, abortion in Canada was governed by section 251 of the Criminal Code.³ Under this provision, performing or obtaining an abortion required approval by a Therapeutic Abortion Committee (TAC) established within an accredited hospital. An abortion performed without approval constituted a criminal offence. Before authorizing an abortion, the committee was required to determine whether the continuation of the pregnancy would endanger the woman’s life or health.

Although the legislation permitted abortions under specific circumstances, access to a TAC varied significantly across Canada. Not all hospitals had such committees, and the few active TACs imposed long waiting periods and inconsistent approval standards. As a result, many women were unable to access abortion services or faced delays in obtaining adequate medical treatment, especially those residing in rural or underserved communities. These disparities went on to form the factual background to the constitutional challenge.

Dr. Henry Morgentaler, along with Dr. Leslie Frank Smoling and Dr. Robert Scott, openly disagreed with the abortion laws of the time and set up an abortion clinic in Toronto to perform abortions on women who had not received certification from a TAC. By deliberately operating outside the framework established by section 251, they aimed to bring public attention to their cause, as they believed that a woman should have sole authority over the decision whether to have an abortion.

Following investigations by law enforcement authorities, the three were charged with performing unlawful abortions. Instead of denying that abortions had been performed at the clinic, the physicians argued that the legal framework itself infringed upon the constitutional rights guaranteed by the Charter.⁴ They stated that the requirements set by section 251 subjected women to unfair delays, unequal access to healthcare, and significant physical and psychological burdens. According to them, these restrictions interfered with a woman’s ability to make fundamental decisions concerning her own body and reproductive health. Therefore, the dispute centred not on whether abortions occurred, but on whether section 251 of the Criminal Code was constitutionally valid in light of section 7 of the Charter.

Legal Issues

1. Does section 251 of the Criminal Code violate a woman’s rights to life, liberty, and security of the person under section 7 of the Canadian Charter of Rights and Freedoms?
2. If so, did the deprivation occur in accordance with the principles of fundamental justice?
3. If the deprivation was not in accordance with the principles of fundamental justice, can the infringement be justified as a reasonable limit under section 1 of the Charter?

Arguments

Appellants’ Arguments

The appellants, Dr. Morgentaler, Dr. Smoling, and Dr. Scott, argued that section 251 of the Criminal Code violated section 7 of the Canadian Charter of Rights and Freedoms because it deprived women of their rights to life, liberty, and security of the person. Though Parliament possessed authority to regulate abortion, the physicians contended that the framework imposed unreasonable and constitutionally impermissible barriers to accessing medical care.⁵

The appellants emphasized that the TAC system created significant delays in obtaining abortions. Many hospitals lacked such committees altogether, and those that had TACs experienced extended waiting periods or applied inconsistent standards when determining whether a pregnancy threatened a woman’s life or health. Consequently, access to abortion varied largely based on geographic location and hospital resources rather than medical necessity.

They further argued that these delays exposed women to increased physical risks, as abortion procedures generally became more medically complex as pregnancies progressed. They also submitted that forcing women to continue unwanted pregnancies while awaiting TAC approval imposed extensive psychological stress. These consequences, they argued, were inconsistent with the principles of fundamental justice guaranteed by section 7 of the Charter. They maintained that even if Parliament sought to protect fetal life, section 251 was overly restrictive and failed to achieve that objective through constitutionally acceptable means.⁶

Respondent’s Arguments

The Crown argued that Parliament had constitutional authority to regulate abortion through criminal law. It submitted that section 251 represented a legitimate attempt to balance the interests of pregnant women with society’s interest in protecting potential human life.⁷

The Crown maintained that the Charter did not create an unrestricted constitutional right to obtain an abortion. Instead, Parliament was entitled to establish procedures governing when abortions could lawfully be performed. According to the Crown, the TAC system ensured that abortions were carried out only when medically justified, thereby preventing abuse of the statutory exception.

The Crown further argued that any limitations imposed by the law were reasonable. It contended that any delay experienced by women resulted primarily from administrative implementation rather than from the legislation itself, and that the legislation pursued an important governmental objective.⁸

Court’s Reasoning and Analysis

The Supreme Court, by a majority of five to two, held that section 251 could not withstand constitutional scrutiny. The majority reached this conclusion through three separate sets of reasons (outlined in the next section), while Justices McIntyre and La Forest dissented. Although each majority judgment emphasized different aspects of section 7, all concluded that the legislative scheme violated the principles of fundamental justice.⁹

The majority found that the TAC system had created significant barriers to accessing lawful abortions. Inconsistencies in the system, such as uneven access to committees and lengthy delays, meant that access to abortion procedures varied largely between hospitals and regions. The legislation therefore operated in an arbitrary and unfair manner, contrary to the principles of fundamental justice.¹⁰

The majority also considered whether the infringement could be justified under section 1 of the Charter. Although it found that Parliament had a legitimate interest in regulating abortion, it concluded that the requirements imposed disproportionate burdens and therefore could not be justified as a reasonable limit.¹¹

Judgment and Ratio Decidendi

Three different sets of reasons were given by the judges in the majority on the main issue. They all agreed that the Criminal Code provision was unconstitutional. Chief Justice Brian Dickson, with Justice Antonio Lamer, began by examining section 7. He found that section 251 forced many women to carry a fetus irrespective of their own priorities and aspirations. The physical and psychological risks associated with pregnancy were further augmented by the procedural requirements that the TAC system had created, which produced unnecessary delays and arbitrary barriers to obtaining abortions. As a result, the justices concluded that these obstacles infringed upon women’s constitutional rights. Dickson also found that the violation could not be justified under section 1 of the Canadian Charter of Rights and Freedoms, the Reasonable Limits Clause. Ultimately, section 251 failed every step of the proportionality test.¹²

Justices Beetz and Estey wrote a second set of reasons explaining why the abortion law was invalid. In those reasons, Beetz noted that, by enacting section 251(4), Parliament had recognized that protecting the pregnant woman’s life or health took priority over protecting the fetus whenever the pregnancy endangered her. Beetz’s reasoning in the section 1 analysis was similar to Dickson’s.¹³

Justice Wilson wrote a third set of reasons, holding that section 251 violated two rights in particular: liberty and security of the person. In her view, removing a woman’s ability to choose whether to have an abortion and giving that decision instead to a committee was a clear violation of her liberty. Wilson commented that, through this section, the state was taking control of a woman’s capacity to reproduce.¹⁴

The majority concluded that the infringement could not be justified under the Reasonable Limits Clause in section 1 of the Charter, as the legislation failed to minimally impair the rights guaranteed by section 7. Section 251 was declared to be of no force or effect under section 52 of the Constitution Act, 1982.¹⁵

Ratio Decidendi

Legislation restricting access to abortion violates section 7 of the Canadian Charter of Rights and Freedoms where it deprives women of their rights to life, liberty, and security of the person through procedures that are inconsistent with the principles of fundamental justice and that cannot be justified under section 1. Therefore, government regulation of abortion must comply with the Charter’s guarantees, including the principles of fundamental justice.¹⁶

Critical Analysis

Significance of the Decision

R v Morgentaler reshaped Canadian constitutional law by significantly expanding the interpretation of section 7 of the Charter. Before the decision, section 7 had largely been understood as protecting procedural fairness within the justice system. The Court went further, recognizing that section 7 also protects substantive interests, particularly personal autonomy, most clearly in Justice Wilson’s reasons.¹⁷

The decision also represented a turning point in Canadian reproductive rights, as it struck down Canada’s existing criminal restrictions on abortion. The case effectively invalidated the entire abortion framework. The concurring judgments of the majority, particularly Justice Wilson’s, became influential because they recognized that reproductive decision-making is closely connected to human dignity and individual freedom.¹⁸

Implications and Impact

The immediate consequence of the decision was that the criminal regulation of abortion under section 251 ceased to have legal effect. Parliament attempted to enact Bill C-43 as a replacement, but it failed to pass in the Senate.¹⁹ As a result, Canada remains without any specific criminal law governing abortion.

The case has since become a major landmark decision, with courts relying upon Morgentaler in cases involving medical decision-making and individual liberty. The development of section 7 jurisprudence is tied closely to the decision, as it reinforced the principle that constitutional protections extend beyond protection against imprisonment.

At the same time, the case continues to generate political and ethical debate. Questions concerning access to abortion services, particularly in more remote Canadian communities, demonstrate that the removal of legal barriers does not necessarily guarantee equal access in practice across Canada.

Critical Evaluation

The greatest strength of the reasoning lies in the Justices’ recognition that constitutional rights must protect individuals from both governmental interference and systems that create unjustifiable barriers to exercising those rights. Rather than solely examining the purpose of section 251, the Court carefully considered its practical effects on women who sought medical care.

However, the decision has attracted criticism. Some argue that the Court invalidated the legislation without providing Parliament with clear guidance on what form of abortion regulation would satisfy constitutional requirements. Others contend that the Court relied on multiple opinions rather than a single majority, making it far more difficult to identify one definitive constitutional test.

Despite these criticisms, Morgentaler remains a persuasive example of judicial review under the Charter. The Court demonstrated that constitutional rights cannot be undermined through administrative procedures that are arbitrary, inconsistent, or inaccessible in practice.

Conclusion

Morgentaler remains one of the defining decisions in Canadian legal history. The Supreme Court concluded that the abortion provisions contained in section 251 of the Criminal Code violated section 7 of the Canadian Charter of Rights and Freedoms because they imposed unfair procedural barriers, depriving women of their rights to life, liberty, and security of the person. In doing so, the Court significantly expanded the interpretation of the principles of fundamental justice and reaffirmed the importance of constitutional protection for individual autonomy.

The decision’s most enduring legacy is its recognition that constitutional rights must be meaningful in practice rather than merely theoretical. Government procedures that create obstacles to the exercise of rights are incompatible with the Charter, even where Parliament pursues a legitimate objective. Morgentaler established foundational principles governing autonomy and constitutional review that continue to influence Canadian jurisprudence. Nearly four decades later, it remains one of the most important Charter decisions of the Supreme Court.

Note(S):

¹ R v Morgentaler, [1988] 1 SCR 30 [Morgentaler].

² Ibid.

³ Criminal Code, RSC 1970, c C-34, s 251.

⁴ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

⁵ Morgentaler, supra note 1.

⁶ Ibid.

⁷ Ibid.

⁸ Ibid.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Ibid.

¹² Ibid.

¹³ Ibid.

¹⁴ Ibid.

¹⁵ Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 52.

¹⁶ Morgentaler, supra note 1.

¹⁷ Ibid.

¹⁸ Ibid.

¹⁹ Criminal Code Amendment Act, 1990 (Bill C-43).

Cases

• R v Morgentaler, [1988] 1 SCR 30.

Legislation

• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
• Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
• Criminal Code, RSC 1970, c C-34.
• Criminal Code Amendment Act, 1990 (Bill C-43).