What was R. v. Morgentaler (1988)?

R. v. Morgentaler is the 1988 Supreme Court of Canada decision that struck down section 251 of the Criminal Code, which had restricted access to abortion since the Criminal Law Amendment Act of 1969. The court held by a 5-2 majority that the Criminal Code abortion provisions violated section 7 of the Canadian Charter of Rights and Freedoms (the right to life, liberty, and security of the person) and could not be justified under section 1. Since 1988 abortion in Canada has not been restricted by the Criminal Code, though provincial healthcare delivery and medical regulation continue to shape access.

The case concerned Dr. Henry Morgentaler, a Polish-born Holocaust survivor who had operated abortion clinics in Montreal and (from 1983) Toronto in open defiance of the Criminal Code provisions. The 1969 amendments allowed an abortion only when a Therapeutic Abortion Committee (TAC) of a hospital approved the procedure as necessary for the woman's life or health. The TAC system created severe geographic disparities, with many Canadian women (particularly in rural areas, the Atlantic provinces, and small communities) having no practical access. Morgentaler was prosecuted multiple times and had earlier prevailed before the Supreme Court in Morgentaler (No. 1) (1976), which addressed jury nullification powers.

The five majority justices wrote three sets of reasons. Chief Justice Brian Dickson (joined by Justice Antonio Lamer) found a section 7 violation in the procedural unfairness of the TAC system and the resulting unequal access. Justice Jean Beetz (joined by Justice Willard Estey) found a section 7 violation in the delay caused by the TAC requirements. Justice Bertha Wilson, the first woman appointed to the Supreme Court, wrote separate reasons emphasising women's autonomy and dignity, and was the only justice to address whether section 7 protects a woman's right to choose to have an abortion.

Parliament has not enacted replacement abortion legislation since 1988, despite Bill C-43 in 1990 (which passed the House of Commons but was tied in the Senate and therefore failed). Provincial healthcare systems regulate delivery: New Brunswick's Regulation 84-20 limited public funding to hospital abortions until reformed in 2024, and access in rural and Atlantic provinces remains constrained. The R. v. Morgentaler decision is among the most consequential Charter rulings and is regularly cited in section 7 litigation alongside Carter v. Canada (2015), Canada (Attorney General) v. Bedford (2013), and Canada (Attorney General) v. PHS Community Services Society (2011).