Ever since the Supreme Court of Canada’s decision in Morgentaler in 1988, one misunderstanding prevails, chiefly that women in Canada have a constitutional right to abortion. Liberal Party leader Justin Trudeau’s pronouncements on abortion received much media coverage last spring. He tried to defend his edict that all candidates for the Liberal Party must be “pro-choice”, and that existing pro-life Liberal members of Parliament would have to vote “pro-choice” if the matter came up in Parliament, by saying that he was protecting a woman’s charter right to abortion.
Trudeau said: For current members, we will not eject someone from the party for beliefs they have long held. But the Liberal party is a pro-choice party, and going forward , all new members and new candidates are pro-choice.”
Later seeking to clarify his position, he added:
“Since 1988, the Supreme Court of Canada has recognized that a woman’s right to a choice in this matter is a Charter right. (It’s) upheld by the constitution.”
His statement that abortion is a charter right is simply wrong. There is no charter right or constitutional right to abortion in Canada. In the Morgentaler decision of 1988, the Supreme Court struck down section 251 of the Criminal Code for procedural reasons related to the operation of hospital “therapeutic” abortion committees. The Court found that these procedural inequities were a violation of section 7 of the Charter. However, the Court clearly said that Parliament could enact restrictions on abortion and had an interest in the protection of the foetus.
Former Prince Edward Island Supreme Court Justice and Chief Justice from 1987 until 2008, Gerard Mitchell of Charlottetown wrote in a letter to the Guardian newspaper in May 2014 that “None of the seven judges held that there was a constitutional right to abortion on demand. All of the judges acknowledged the state has a legitimate interest in protecting the unborn.”
To sum up, the Supreme Court’s ruling in Morgentaler did not find that a woman had a constitutional right to abortion but did find that protection of unborn children is a valid legislative objective.