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One of the most enduring misconceptions about the 1988 Morgentaler decision, is that that Supreme Court recognized a Charter right to abortion. As the following quotes from judicial and government sources and pro-choice academics make clear, the Supreme Court did not a recognize a constitutional right to abortion:
“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. Even Madam Justice Wilson, who rendered the most liberal opinion in favour of a woman’s rights, advocated an approach to abortion that would balance those rights with the state’s interest in protecting the unborn.” – Gerard Mitchell, former provincial court judge (1975-77), P.E.I. Supreme Court Justice (1981-1987) and Chief Justice from 1987 until 2008, in a letter to the editor, The Guardian, May 22, 2014, “Clarifying facts on Canada’s abortion law, or lack of”
- “The Supreme Court’s decision, profound as it was, did not create a right to abortion for Canadian women, nor did it offer any resolution of the abortion issue.” – Shelley A.M. Gavigan (Law Professor at Osgoode Hall Law School) in an essay entitled “Morgentaler and Beyond: Abortion, Reproduction, and the Courts” published in The Politics of Abortion, Oxford University Press, 1992, page 118.
“The majority of the judges (5 of 7) had decided that Section 251 violated Canadian women’s constitutional rights to the security of the person. Only one, however, Madam Justice Bertha Wilson, declared that women had a right to an abortion in the early stages of pregnancy. Moreover, all of the majority decisions conceded the state’s interest in protecting the foetus. The Court avoided suggesting the content of any future abortion legislation, explicitly designating the political sphere as the most appropriate forum for that decision…. In the end, the pro-choice movement could claim victory because abortion remained out of the Criminal Code. In another sense, however, it had failed because the state did not embrace its discourse on women’s right to reproductive choice.” – Janine Brodie (Professor of Political Science at York University) in an essay entitled “Choice and No Choice in the House” published in The Politics of Abortion, Oxford University Press, 1992, page 59-60.
- “The Morgentaler decision didn’t say a woman has a constitutional right to abortion, it didn’t go that far –pro-choice is not a legal question, it is a social/cultural issue.” – Daphne Gilbert (Associate Professor of Law at University of Ottawa), quoted in “Anti-abortionists call for inclusive abortion debate,” by Sharda Vaidyanath, The Epoch Times, Jan. 30, 2008. According to this article, Daphne Gilbert who “specializes in Charter rights, says the Morgentaler case didn’t go as far as the 1973 U.S. Supreme Court decision in the Roe v. Wade case, which granted the constitutional right to abortion and subsequently changed laws in 46 states.”
“Significant differences among the majority centre on what Madam Justice Wilson terms ‘the right to access to an abortion’; that is, a woman’s right to choose to have an abortion without state constraint. Madam Justice Wilson alone interprets the Charter as granting such a right, although only for a certain period of foetal development (to be determined by the legislature.)”
– Mildred Morton, “The Morgentaler Judgment: How the Decisions Differ,” Law and Government Division, Library of Parliament, 9 February, 1988.
