Summary and Analysis of the Case
The case Morgentaler v. Queen [1988] 1 S.C.R. 30 was tried in the Supreme Court of Canada from October 7-10, 1986, and the decision was made on January 28, 1988. In this case, 3 Doctors, Henry Morgentaler, Leslie Frank, and Robert Scott were challenging abortion laws in the country. This is the highest court in the country. The majority opinion was written by Chief Justice Brian Dickson, Justice Antonio Lamer, Justice Jean Beetz, and Justice Willard Estey. Justice Bertha Wilson wrote her concurring opinion. On the other hand, dissent decision was written by Justice William Mclntyre and Justice Gerard Forest (Flanagan 44).
It is important to review the facts of the case. Prior to the ruling, Manfredi notes that Section 251.9 of the country’s Criminal Code prohibited abortion unless the procedure was duly approved by Therapeutic Abortion Committee (23). The appellants, Henry Morgentaler, Leslie Frank, and Robert Scott set up a clinic in Toronto where women could procure abortions in case they failed to get certification from Therapeutic Abortion Committee. Under Section 251.9 of the country’s Criminal Code, this was a direct violation of the law. Setting up the clinic may not be considered a violation of the criminal law. However, if the three doctors were to start the operations at the clinic by helping women without Therapeutic Abortion Committee’s certification to procure abortions, they alongside their patients shall be held criminally liable.
The main legal issue that was presented before the Supreme Court was the need to determine whether Section 7 of the Human Rights Charter was violated by Section 251 of the Country’s Criminal Code. The appellants argued that it is unfair to take the decision about abortion from the affected women and hand it over to a committee that had no interest in the whole issue. This was a direct violation of human rights and freedom that allows people to make decisions about their reproductive health. The appellants argued that the government had no right to dictate the reproductive health decisions of women, including the right to have abortions or any other reproductive health decisions. On the other hand, the government’s attorney argued that the life of fetus must be protected by law. Prior to the ruling, the law held that life begins at conception. This meant that once a woman has conceived, she has no right whatsoever to decide whether the fetus will live or die. It is up to the state to make such decisions. The Therapeutic Abortion Committee was specifically set to ensure that abortions were procured only under medical grounds. This law was meant to eliminate cases where abortions were procured on demand without considering the right of the fetus as a living being.
The decision of the Supreme Court of Canada by a majority of 5-2 held that abortion provision as spelt out in Section 251.9 of the country’s Criminal Code was not constitutional. They ruled that it violated women’s right as spelt out in the Charter of Human Rights and Freedom. The main reason that informed the majority decision was that the law infringed on pregnant women’s rights, especially in cases where an urgent abortion is needed to spare the life of a mother. The mother can die while in the process of seeking approval of the committee. Giving women the power to make decisions about whether or not to abort is like handing over to them the decision to choose life or death in cases where they have complicated pregnancies. This is what is envisaged in the Canadian Charter of Rights, according to the majority of the judges (Abelson, James, and Lusztig 55).
Balancing Rights of a Pregnant Mother against Interests of the State
Balancing a woman’s right to life, liberty, and security against the state’s interest in the potential life of a fetus was the focus of this case. Achieving a perfect balance under this context is not very easy. The main element of the right to life states that every person has the right to live. The state has no power to deny a person this right unless a contrary opinion is held by the court of law after a due procedure is followed. Abortion should not just be an issue of choice (Tatalovich 77). In many cases, it is always procured to protect the life of a mother. It means that any law that prohibits abortion denies a woman right to life. The majority of the judges shared this opinion. When a woman is forced to wait for a committee to sit and decide whether she should procure an abortion, then her right to life is handed over to the committee. The judges held that this is unconstitutional. The interest of the state in the potential life of the fetus is given undue priority over the life of the woman. I agree with this decision of the court. The right to life of any person should not be held by the state, but the person concerned.
A pregnant woman’s right to liberty is challenged by the law which restricts her ability to decide whether or not she would procure an abortion. According to the government’s attorneys, who were the defendants in this case, the state only seeks to regulate the freedom to liberty of pregnant women by defining when an abortion can be considered acceptable. The defendants argued that in most of the cases, people tend to abuse the right to liberty, especially when it comes to the issue of abortion. It is the right of the state to protect life (McConnell 910). That is why laws are put in place to ensure that even a parent has no right to take the life of her own child. In the same way, a pregnant woman has no right to the life of the fetus unless the pregnancy threatens her life. To this extent, I agree with the defendants. Some form of law should be put in place to regulate abortion on demand.
The right to security is another issue that comes out very clearly in this case. The state has a responsibility to provide security to every person within the country (Songer, Wetstein, and Johnson 61). If life is considered to begin at conception, then the state has the responsibility to offer it security. On the other hand, a pregnant woman may argue that problematic fetus may be a threat to her security. Prohibiting her from procuring an abortion can be construed as denying her right to security. Inasmuch as I agree with the court’s decision to grant a pregnant woman right to security under this context, I believe it would be more appropriate to define the role of state in defending the life of the fetus.
Works Cited
Abelson, Donald, Patrick James, and Michael Lusztig. The Myth of the Sacred: The Charter, the Courts and the Politics of the Constitution in Canada. Montreal: McGill-Queen’s University Press, 2002. Print.
Flanagan, Thomas. “The Staying Power of the Legislative Status Quo: Collective Choice in Canada’s Parliament after Morgentaler.” Canadian Journal of Political Science 30.1 (2006): 31-53.
Manfredi, Christopher. Feminist Activism in the Supreme Court: Legal Mobilization and the Women’s Legal Education and Action Fund. Vancouver: UBC press, 2005. Print.
McConnell, Linnet. “Abortion and Human Rights: An Important Canadian Decision.” The International and Comparative Law Quarterly 38.4 (2001): 905-913.
Songer, Donald, Matthew Wetstein, and Susan Johnson. Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada. , 2012. Print.
Tatalovich, Raymond. The Politics of Abortion in the United States and Canada: A Comparative Study. Armonk: M.E. Sharpe, 2007. Print.