Canadian Case Law: R. v. Morgentaler

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R. v. Morgentaler (1988) is an instrumental case law that had some diverse impacts on the societal perception of abortion and the constitutionality of this practice. The ruling of this landmark case was issued in 1988, following a series of hearings in 1986 (Wood, 2018). The main actors in the case were Dr. Robert Scott, r. Leslie Frank Smoling, and Dr. Henry Morgentaler, who had private abortion medical facilities, but their practice was sufficiently hindered by the previous laws that dictated that abortion could only be conducted with the approval of a therapeutic committee that was established by major hospitals (R. v. Morgentaler, 1988). The case resulted in the ruling that demonstrated the unconstitutionality of the existing criminal code that governed the abortion practice.

The ruling of R. v. Morgentaler was the most memorable in the 20th century’s second half. The Canadian Supreme Court held that the clause or provision regarding abortion under the criminal code was a significant violation of the rights of women that are well-defined in section 7 of the “Canadian Charter of Rights and Freedoms to Security of Persons” (Sethna & Doull, 2018) The court also established that the existing legislation violated women’s autonomy with the lengthy procedures that were defined by previous laws being a hazard to the psychological health and overall well-being of women.

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The R. v. Morgentaler case is highly significant as it signified a substantial legal change. The case law was timed at an era when other nations were making significant strides in repealing the specific sections of their constitutions that were deemed to be restrictive to specific genders. Moreover, the significance of the case is manifest in its definition of human rights and the existing violations. The case established that women had the right to autonomy, thereby making Canada the first state globally to establish legislation that legalized abortion to some degree. The final significance of the case was its moral implications, as Parent (2019) argued that the R. v. Morgentaler case law signified a tremendous shift in societal values.

The R. v. Morgentaler appeal was allowed with 5-2 in favor. The dissenting opinions were provided by McIntyre J. Moreover, Justice La Forest J concurred with the grounds of dissent issued by Justice McIntyre J (Wood, 2018). The dissenting opinions were that there existed no laws within the constitutional framework providing women to conduct an abortion and that the case presented was insufficient in proving that there existed a severe violation of the constitution. Additionally, the dissenting judges held that section 251(4) was not unfair, as claimed by the appellants.

The central case law decision under reference during the R. v. Morgentaler appeal was the 1969 law that deemed abortion illegal unless a pregnancy posed severe health implications on women (Sethna & Doull, 2016). The law was restrictive as it jeopardized women’s autonomy. Therefore, the significance of the R. v. Morgentaler case law to the week’s topic is that it demonstrated a hallmark ruling on an issue that was sensitive to the society thereby demonstrating that the legal system has specific boundaries and makes a judgment based on both previous laws and the constitutional provisions.

  • Parent, J. (2019). Institutional norms, Parliament, and the courts: explaining the absence of abortion restrictions in Canada. In Research Handbook on Law and Courts. Edward Elgar Publishing.
  • R. v. Morgentaler, 1 SCR 30, 44 DLR (4th) 385 (Supreme Court of Canada 1988).
  • Sethna, C., & Doull, M. (2016). Journeys of Choice? Abortion, Travel, and Women’s Autonomy. In Critical Interventions in the Ethics of Healthcare (pp. 179-196). Routledge.
  • Wood, W. (2018). Abortion: History, Politics, and Reproductive Justice after Morgentaler ed. by Shannon Stettner, Kristin Burnett, and Travis Hay. The Canadian Historical Review, 99(4), 676-677.

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