R. V. MORGENTALERR. V. MORGENTALER By F. M. OlaerBy F. M. Olaer

CONTENTS 1)Background 2)Issues 3)Supreme Court Ruling 4)Aftermath and Significance

BACKGROUND

BACKGROUND  Prior to the Supreme Court ruling in the R v. Morgentaler case, abortion was a primarily one sided issue.  Section 251 of the Criminal Code of Canada did permit abortions to occur at accredited hospitals. These abortions were approved by a local supervisory body in each of the accredited hospitals. It was called the Therapeutic Abortion Committee.  In short, abortion already existed legally in Canada prior to this case.

BACKGROUND  Three doctors including one Dr. Morgentaler decided to open an abortion clinic for women who did not receive certification from the Therapeutic Abortion Committees.  In doing so, they were acting against Criminal Code Section 247 Subsection 4. This brought media attention to their actions.

BACKGROUND  The case was first brought before the Court of Appeal for Ontario.  The court ruled in favour of Section 251 of the Criminal Code.  Morgentaler appealed the ruling to the Supreme Court of Canada.

ISSUES

ISSUES  Despite the existence of strictly regulated abortion outlets, Morgentaler felt that such decisions should belong to the mother and not administrative boards.  He felt they were intrusive and that such regulation still stripped women of the right to act freely as individuals.  Morgentaler believed that the fate of the fetus was dependent not on any external body but on the woman carrying the child.

ISSUES  Despite Morgentaler’s beliefs and the existence of abortion laws, the Pro-Choice movement still faced opposition from Pro- Life groups and organizations such as the Roman Catholic Church, Orthodox Christians, Protestants, Anglicans, secular organizations, and other religious denominations.  Many felt that abortion was outright murder and that such action should never be tolerated.  The main argument that plagued discussions were the women’s rights.

ISSUES  The question as to where women’s rights end and begins was the biggest question.  The Pro-Life side argued that the child’s life was at stake and that arbitrary decisions by a mother would be detrimental.  The Pro-Choice side advocated for the freedom and security of the woman. They argued that the life of the mother comes before the safety of the child.

SUPREME COURT RULINGSUPREME COURT RULING

 The court considered the constitutional ramifications of the Criminal Code of Canada’s Section 251.  The court ruled that it was unconstitutional and it violated Section 7 and was not deemed reasonable under Section 1 of the Canadian Charter of Rights and Freedoms.  The security of the woman was seen to be endangered if regulations such as the Therapeutic Abortion Committee was to intrude on her life decisions.

SUPREME COURT RULINGSUPREME COURT RULING  The judges in favour were: - Brian Dickson, Chief Justice - Antonio Lamer, Puisne Judge - Jean Beetz, Puisne Judge - William Estey, Puisne Judge - Bertha Wilson, Puisne Judge  The judges against the ruling were: - Gerard La Forest, Puisne Judge - William McIntyre, Puisne Judge

SUPREME COURT RULINGSUPREME COURT RULING  Two judges did not participate in the proceedings: - Gerald Le Dain, Puisne Judge - Julien Chouinard, Puisne Judge  The ruling was 5 to 2 in favour of striking down Section 251 of the Criminal Code of Canada.

AFTERMATH AND SIGNIFICANCEAFTERMATH AND SIGNIFICANCE

 Since the ruling was based on different divisive opinions, no precedent was set from this case.  However, it did allow for the widespread use of abortion facilities. Today, the ruling has spawned and encouraged new regulations on attitudes towards abortion such as the Access to Abortion Services Act in Alberta which regulates protests against abortion.

AFTERMATH AND SIGNIFICANCEAFTERMATH AND SIGNIFICANCE  The law has empowered women to fulfill their destinies with more flexibility.  The ruling has also come under attack since the majority of the provinces must publicly fund private abortion clinics with taxpayers money.  Dr. Morgentaler was eventually awarded the order of Canada, Canada’s highest civilian honour, for his activism.

WORKS CITEDWORKS CITED Works Cited Buckingham, Janet. “Access to abortion.” CMAJ: Canadian Medical Association Journal 176 (2007): 7. Gale Virtual Reference Library. Web. 22 Mar Canada. Parliament of Canada. Abortion in Canada: Twenty Years After R. v. Morgentaler. Ottawa : Government of Canada, Gale Virtual Reference Library. Web. 25 Mar Downie, Jocelyn, and Chris Kaposy. “Judicial reasoning about pregnancy and choice.” Health Law Journal 16 (2008): 16. Gale Virtual Reference Library. Web. 20 Mar Lessard, Hester. “Relationship, particularity, and change: reflections on R. v. Morgentaler and feminist approaches to liberty.” McGill Law Journal 46 (Apr. 2001): 37. Gale Virtual Reference Library. Web. 23 Mar R. v. Morgentaler. Centre for Constitutional Studies, Web. 22 Mar

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