Morgentaler v. The Queen
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- This article is about the 1976 decision by the Supreme Court of Canada. For the 1988 decision, see R. v. Morgentaler. For the 1993 decision, see R. v. Morgentaler (1993)
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Morgentaler v. The Queen, [1976] 1 S.C.R. 616 is a famous decision of the Supreme Court of Canada where Henry Morgentaler unsuccessfully challenged the prohibition of abortion in Canada under the Criminal Code. The Court found the abortion law was appropriately passed by Parliament under the laws of federalism. This was the first of three Supreme Court decisions on abortion that was brought by Morgentaler.
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[edit] Background
The Criminal Code banned abortions except where the pregnancy would threaten the mother's life or health, subject to the consideration of the Therapeutic Abortion Committee. Morgentaler challenged the law on two grounds. First, on the grounds that modern abortion techniques were no longer a threat to the woman's health so the dangers that the law was intending to protect no longer applied and consequently the law no longer had a valid criminal purpose required under the federal government's criminal law-making power under section 91(27) of the Constitution Act, 1867. Second, on the grounds that the provisions violated the Bill of Rights.
[edit] Reasons of the Court
The Court, split 6 to 3, held that the abortion provisions were still valid as there was still a criminal law purpose in prohibiting abortions even without there being a danger to the women. The general purpose of the law was to "protect the state interest and the foetus", which was sufficient to invoke the criminal law power under the Constitution.
The Court also rejected the challenge on the basis that it violated the Bill of Rights.
[edit] Aftermath
It would not be until 13 years later, after the introduction of the Charter, that Morgentaler successfully challenged the provisions in the decision of R. v. Morgentaler (1988).
In 1993, Morgentaler also successfully challenged a provincial attempt to regulate abortion in the decision of R. v. Morgentaler (1993).
