Morgentaler Decision Fact Sheet

Key Points about the 1988 Morgentaler Decision

  • All seven Justices found that the abortion provisions of the Criminal Code, section 251 (currently section 287), violated the s.7 Charter right to “security of the person.”
  • The court said that the law was unfair because the defence it created was not available to all women who would have qualified for an abortion (i.e. for whose life or health was endangered by the pregnancy). Women should not be faced with a choice between remaining within the law on the one hand and obtaining necessary medical treatment on the other hand. This was a violation of a woman’s section 7 Charter right to “security of the person” and not in accordance with fundamental justice.
  • Only Madam Wilson found that section 251 infringed s. 2(a) of the Charter, “freedom of conscience.” She said that a breach of a s. 7 right which has the effect of infringing a right guaranteed under another section of the Charter, (in this case, section 2(a) ) was not in accordance with fundamental justice.
  • Only one Justice, Bertha Wilson, recognized a “right to abortion” founded on the s.7 Charter right to “liberty” but only in the early stages of pregnancy. In the latter stages, Parliament would be justified in restricting abortion in the interests of protecting the foetus.
  • Two Justices found there is no constitutional right to abortion (McIntyre and La Forest in dissent).
  • Four Justices (Dickson, Lamer, Beetz and Estey) said there was no need to decide whether the Charter establishes a right to abortion because the abortion law (then section 251 of the Criminal Code) could be struck down for other reasons, having to do with the unfairness of the procedural requirements of the law.
  • The Court said it was Parliament’s responsibility to come up with a new abortion law that would balance the rights of women with the state’s legitimate interest in the protection of the fetus.
  • The Court did not decide whether the fetus/unborn child is included in the term “everyone” in the Charter and therefore has an independent right to “life, liberty and security of the person” under section 7 of the Charter.
  • The court did not address the issue of public funding of abortion.