What the Supreme Court said about legal protection of the fetus

fetus ultrasound 1The Court was unanimous in finding that the state has an interest in the protection of fetal/unborn human life.

Chief Justice Dickson (and Justice Lamer concurring):

Like Beetz and Wilson JJ., I agree that protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective.” (R v Morgentaler at page 75)


Justice Beetz (and Justice Estey concurring):

The primary objective of s. 251 of the Criminal Code is the protection of the foetus. The protection of the life and health of the pregnant woman is an ancillary objective. The primary objective does relate to concerns which are pressing and substantial in a free and democratic society and which, pursuant to s. 1 of the Charter, justify reasonable limits to be put on a woman’s right. (R v Morgentaler at p. 82)


I am of the view that the protection of the foetus is and, as the Court of Appeal observed, always has been, a valid objective in Canadian criminal law. I have already elaborated on this objective in my discussion of the principles of fundamental justice. I think s. 1 of the Charter authorizes reasonable limits to be put on a woman’s right having regard to the state interest in the protection of the foetus. (R v Morgentaler at p. 124)


Madam Justice Wilson:

In the early stages the woman’s autonomy would be absolute; her decision, reached in consultation with her physician, not to carry the foetus to term would be conclusive. The state would have no business inquiring into her reasons. Her reasons for having an abortion would, however, be the proper subject of inquiry at the later stages of her pregnancy when the state’s compelling interest in the protection of the foetus would justify it in prescribing conditions. The precise point in the development of the foetus at which the state’s interest in its protection becomes “compelling” I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester. Indeed, according to Professor Sumner (p. 159), a differential abortion policy with a time limit in the second trimester is already in operation in the United States, Great Britain, France, Italy, Sweden, the Soviet Union, China, India, Japan and most of the countries of Eastern Europe although the time limits vary in these countries from the beginning to the end of the second trimester (cf. Stephen L. Isaacs, “Reproductive Rights 1983: An International Survey” (1982-83), 14 Columbia Human Rights Law Rev. 311, with respect to France and Italy). (R v Morgentaler at p. 183)


Justices McIntyre and La Forest (dissenting opinion):

Historically, there has always been a clear recognition of a public interest in the protection of the unborn and there is no evidence or indication of general acceptance of the concept of abortion at will in our society. The interpretive approach to the Charter adopted by this Court affords no support for the entrenchment of a constitutional right of abortion. (R v Morgentaler, at p. 39)