Options available to Parliament

The Supreme Court did not resolve the abortion issue and left it to Parliament to come up with a new law.

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The Supreme Court struck down the abortion law (then section 251 of the Criminal Code), not because the Court found a “right to abortion,” but because essentially, the law was unequally applied and a defence to a criminal charge would not necessarily be available to women who would qualify for an abortion. Women who would have qualified for an abortion (for reasons of life or health), may not have been able to legally obtain one because of potential difficulties in accessing a therapeutic abortion committee which would provide the certificate necessary for the woman to obtain a legal abortion.¹

The Court was unanimous in recognizing that the state has an interest in protecting the fetus/unborn child and that this interest had to be balanced with the rights of women. The Court left it up to Parliament to come up with a new law that would not have the problems inherent in section 251 (currently section 287).

If Parliament were to draft a new law, some questions to consider would be:

• Under what circumstances would abortion be allowed? The old abortion law allowed a woman to obtain a legal abortion if continuation of the pregnancy “would or would be likely to endanger her life or health.” Four of the seven SCC Justices—Beetz, Estey, McIntyre, La Forest—felt that the expression “life or health” was “a sufficiently precise standard by which therapeutic abortion committees can determine when therapeutic abortions should be granted.” (R v Morgentaler [1988] at page 106). It is difficult to know if the Supreme Court under its current (or a future) composition would agree with that view, or if it would find the phrase “life or health” too vague. It might be desirable in any future legislation to define more precisely what is meant by “life or health.”

• Who would be responsible for determining that an abortion meets the medical criteria stipulated in the law? Beetz and Estey felt that Parliament was justified in requiring a “reliable, independent and medically sound opinion in order to protect the state interest in the foetus.” (R v Morgentaler [1988] at page 110). Beetz goes on to say:
  

  “I do not believe it to be unreasonable to seek independent medical confirmation of the threat to the woman’s life or health when such an important and distinct interest hangs in the balance. I note with interest that in a number of foreign jurisdictions, laws which decriminalize abortions require an opinion as to the state of health of the woman independent from the opinion of her own physician.” (R v Morgentaler [1988] at page 112)

• At what stage in development could the state restrict abortion? The majority of the judges gave no opinion on this (Dickson, Lamer, Beetz, Estey). Madam Justice Wilson alone felt that restrictions could only be placed on abortion later in pregnancy, probably at some point in the second trimester:
  

  “The precise point in the development of the foetus at which the state’s interest in its protection becomes “compelling” I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it might fall somewhere in the second trimester.” (R v Morgentaler [1988] at page 183)

  We know that Justices McIntyre and La Forest found restrictions throughout the entire nine months of pregnancy to be constitutional, given they found section 251 which restricted abortion throughout all stages of pregnancy, to be constitutional.

• What other ways can the fetus/unborn child be protected? Restricting abortion directly (through imposing gestational limits, or stipulating reasons outside of which abortion would not be allowed) is not the only way to help protect the fetus. There are also indirect means that would be beneficial for women as well, such as prohibiting abortion coercion, mandating “informed consent” laws that would ensure a woman is fully aware of the potential health risks of abortion and alternatives to abortion. Such laws respect the choice of women to make the final decision while at the same time offer a form of protection to the fetus in that the woman may be more inclined to bring her unborn child to term. Fetal homicide type laws which penalize a third-party for harming/killing the fetus without the mother’s consent is another fetal protective measure, outside the context of abortion, that also benefits the pregnant woman. Finally, positive measures to protect the fetus would include social programs and policies that give women the support they need to help them to safely continue the pregnancy and avoid abortion.

It is worth noting that the Supreme Court did not decide on the following two questions:

• Whether a woman has a Charter right to abortion

• Whether the fetus/unborn child is included in the term “everyone” in the Charter and therefore has an independent right to “life, liberty and security of the person” under section 7 of the Charter

If the Supreme Court ever were to decide either of these two questions, then Parliament’s options for legislating would be affected accordingly.

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