ABORTION

“The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”

– UN Convention on the Rights of the Child

WHAT DOES THE LAW REALLY SAY ABOUT ABORTION?

Despite the government’s claims that abortion is a “right” in Canada, no such positive right exists under the Charter.

The Morgentaler decision (1988) decriminalized abortion. However, at that time, the Supreme Court of Canada expected that Parliament would produce new legislation to establish constitutionally acceptable limits on abortion – something which never happened. As a result, Canada is one of the few nations in the world without any explicit abortion laws.

Moreover, because they anticipated new federal legislation, the Supreme Court declined to clarify a number of questions during and after Morgentaler (e.g. the personhood and consequent rights of an unborn child, or the point at which state interest in the fetus becomes “compelling”). Since no laws have been successfully passed, those debates have never been resolved, and regulation of abortion has been left to provincial governments.

In the Morgentaler case, Justices McIntyre and La Forest noted that “Historically, there has always been a clear recognition of a public interest in the protection of the unborn.” Even Justice Wilson, the most liberal judge in the Morgentaler case, “held that under s. 1 of the Charter, reasonable limits on a woman’s right to abortion could be upheld in order to protect the fetus.”

Finally, even if abortion were a settled right in Canada, it would still be lawful to peacefully and respectfully oppose such a law. That is how a free and democratic society operates.