Abortion and the Law

Constitutional Law  

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (“Charter”) is Part I of the Constitution Act, 1982. The Charter guarantees the rights and freedoms set out in it, subject to reasonable limits prescribed by law, and applies to government action.¹⁵ Section 7 of the Charter states: 

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 7 of the Charter is a fundamental protection of individual rights and serves as a safeguard against unjust infringements by the state on personal autonomy, bodily integrity, and well-being.¹⁶ It ensures that government actions that would deprive people of these rights must be in accordance with principles of fundamental justice, which include principles of fairness, reasonableness, and respect for basic human rights. Section 7 has been interpreted by the courts to encompass a wide range of rights, including the right to make decisions about one's own body, such as in cases related to medical choices.

Section 7 forms the basis for many decisions related to health care in Canada, including in relation to abortion access.

Criminal Code definition of "human being" (Section 223)

Section 223 of the Criminal Code defines legal personhood as beginning only when a child has been fully born alive. Section 223 has been relied on to stop the prosecution or conviction of pregnant people who have abortions and health care providers who provide them.¹⁷ 

Anti-choice private member’s bills have long attempted to include fetuses in the definition of personhood in order to restrict abortion rights and access. Read more about these anti-choice bills.

Federal legislation and regulations

Canada Health Act, RSC 1985, c C-6  

In Canada, healthcare is primarily a provincial and territorial responsibility. The division of jurisdiction for health is outlined in sections 91 and 92 of the Canadian Constitution Act, 1867.¹⁸ Under the Constitution, provinces and territories are responsible for the establishment, maintenance, and management of healthcare services to their residents.¹⁹ They have jurisdiction over areas such as hospitals, doctors, and other healthcare professionals.²⁰ 

Abortion and all other insured health services in Canada are regulated under the Canada Health Act, a federal law that sets out the standards that provinces and territories must meet to get funding from the federal government for their public health care systems. Canada leads the world in having abortion primarily regulated as a healthcare service, falling under the jurisdiction of medical professionals and governed by healthcare laws and guidelines. 

The five pillars of the Canada Health Act are:²¹

1. Public Administration: This means that provincial and territorial health care insurance plans must be administered on a non-profit basis by public authorities. It ensures that the healthcare system is not driven by profit motives and that decision-making is focused on the public interest.
2. Comprehensiveness: This pillar states that all medically necessary hospital and physician services must be covered by the healthcare insurance plans. It ensures that medically necessary healthcare services are accessible to all Canadians without financial barriers.
3. Universality: Universality means that all insured residents in Canada must have access to healthcare services on equal terms. It ensures that healthcare coverage is not dependent on factors like income, employment status, or pre-existing medical conditions.
4. Accessibility: The accessibility pillar ensures reasonable access to healthcare services without financial or geographical barriers. It means that Canadians should not face significant out-of-pocket expenses or have to travel long distances to receive necessary healthcare.
5. Portability: Portability ensures that Canadians maintain access to healthcare services even when they travel or move between provinces and territories. It means that healthcare coverage should be portable and continue across different regions of the country.

In real terms, these pillars mean that the Canadian healthcare system aims to provide publicly funded and accessible healthcare services to all residents, regardless of their financial status. Canadians should have coverage for medically necessary services, which include abortion, receive care without having to pay significant costs out-of-pocket, and have the flexibility to access healthcare throughout the country. Specifically, the provisions related to accessibility and universality mean that all individuals, regardless of their income, or geographical location, should have equitable access to abortion. 

Those standards are important for the public to be clear on what they are entitled to. In reality, the implementation and interpretation of these principles can vary between provinces and territories, leading to people having different experiences when needing an abortion, depending on where they live.

The Canada Health Act sets the standards for what abortion care and all other medically necessary services should be like in Canada. We must continue to insist on and strive for those standards to be met.

The Food and Drugs Act, and the Food and Drug Regulations

Mifegymiso, also known as the “abortion pill,” is regulated as a “drug” under both the Food and Drugs Act, and the Food and Drug Regulations. 

To be authorized for sale in Canada, a drug must have successfully completed the drug review process as carried out by Health Canada.²⁸ Mifegymiso completed this process in 2015 and became available in Canada in 2017.

Health Canada also determines whether or not a prescription is required for a given drug. Drugs requiring a prescription are listed on a specific list called “The Prescription Drug List.” In determining whether or not to require a prescription, Health Canada follows specific processes and applies the three broad principles contained in section C.01.040.3 of the Food and Drug Regulations along with associated factors.²⁹ Currently, Mifegymiso requires a prescription in Canada.

Bubble Zone Legislation: Bill C-3

On January 16th 2022, amendments to the Criminal Code through Bill C-3 came into effect, making it illegal to intimidate healthcare workers and patients or obstruct them from providing care or seeking treatment at locations where healthcare services—including abortions—are delivered.³⁰

Although the law was triggered by the aggressive actions of anti-vaccine protesters outside health facilities and COVID-19 vaccination sites,³¹ the law applies to protesters at any healthcare facility, including those that provide abortion. It also applies to any healthcare professional in any location where they are harassed, including their homes or online. 

The new law may help protect patients and staff who deliver reproductive care, especially in regions of the country that don’t have provincial safe access zone laws. The law provides for greater penalties for intimidation and obstruction than the existing provincial laws on safe access zones for abortion facilities, which can be found on each provincial page.

Case law  

Case law is made up of the written decisions of judges in court and tribunal cases. Case law comes from all levels of courts in Canada, including the Supreme Court of Canada. The following are key Supreme Court of Canada (SCC) decisions on abortion. Provincial cases on abortion can be found on each province and territory’s page.

R v. Morgentaler (1988)
[1988] 1 SCR 30

Historically, under section 251(4) of the Criminal Code, women seeking abortion required certification from a therapeutic abortion committee of an accredited or approved hospital. Dr. Morgentaler and his colleagues continued to provide abortion services for women who did not get certification, disregarding the provision. Consequently, the doctors were charged, and the case went to trial. In January 1988, the Supreme Court of Canada ruled that section 251(4) was unconstitutional as it violated women’s Charter guarantee of security of the person under section 7 of the Charter, and was not justified by section 1.

Tremblay v. Daigle (1989)
[1989] 2 SCR 530

Chantal Daigle received a provincial court injunction from the Quebec Superior Court to prevent an abortion she sought following the end of her relationship with Jean Tremblay. Daigle appealed to the Court of Appeal of Quebec; however, the court dismissed the appeal and upheld the trial judge’s finding that a fetus is a human being with a right to life under Quebec's Charter of Human Rights and Freedoms and the Civil Code of Lower Canada. Following the decision, Daigle appealed to the Supreme Court of Canada, where the Supreme Court of Canada rejected the lower court’s decision and ruled that a fetus is not considered a human being, and thus has no legal right to life. As such, potential fathers cannot seek a court injunction to stop an abortion.  

R. v. Sullivan, Lemay (1991)
[1991] 1 SCR 489

Following the death of a partially-born fetus, two midwives were charged with criminal negligence causing bodily harm and criminal negligence causing death to a person. The Supreme Court of Canada upheld a lower court’s decision acquitting the midwives of criminal negligence causing death, noting that a fetus is not considered a person under the Criminal Code.

R v. Morgentaler (Nova Scotia) (1993)
[1993] 3 SCR 463

Nova Scotia’s Medical Services Act restricted access to abortion by making abortions outside of hospitals illegal and not providing health insurance coverage for abortions performed outside of hospitals. Dr. Morgentaler challenged the Act, noting the legislation's inconsistency with the division of powers under the Constitution and its encroachment on the federal government’s exclusive jurisdiction over criminal law. The Supreme Court of Canada agreed with Morgentaler and held that the legislation was ultra vires (beyond the province’s legal authority or power).

Winnipeg Child and Family Services (Northwest Area) v. DFG (1997)
[1997] 3 SCR 925

An Indigenous woman was pregnant and struggled with addiction to solvents. Winnipeg Child and Family Services (CFS) sought an order placing the mother in custody of the Director of Child and Family Services and detaining her in a health centre until she had given birth. On appeal, the Supreme Court of Canada held that fetuses are not legal persons and do not possess rights. As such, lower courts do not have appropriate jurisdiction – parens' patriae – over unborn children and cannot grant orders for the detention and treatment of pregnant women in order to prevent harm to the unborn child.

Dobson (Litigation Guardian of) v. Dobson (1999)
[1999] 2 SCR 753

Cynthia Dobson was driving negligently when she was involved in a car accident in her 27^th week of pregnancy. Her son, Ryan Dobson, suffered permanent physical and mental injuries. Ryan’s grandfather filed a tort claim for damages against Cynthia. As a result of public policy considerations, such as the privacy and autonomy of women, the Supreme Court of Canada held that the mother should not be held liable, and a duty of care is not owed by a mother towards the unborn child. 

R. v. Levkovic (2013)
[2013] 2 SCR 204

A superintendent found a bag containing the remains of a human child on the balcony of Ivana Levkovic’s apartment. Subsequently, Levkovic was charged under section 243 of the Criminal Code for concealing the dead body of a child. At issue was whether section 243 of the Criminal Code, which prohibits the disposal of a fetus which dies before birth, was constitutional. The Supreme Court of Canada (SCC) held that for the purposes of section 243, a fetus becomes a child when it has reached the stage in development where it is likely to be born alive. As such, the SCC noted that section 243 is constitutional as it gives “women – and men – fair notice that they risk prosecution and conviction if they dispose of the remains of a child born at or near full term with intent to conceal the fact that its mother had been delivered of it.”

Carter v Canada (2015)
[2015] 1 SCR 331

In Carter, two patients who suffered from severe terminal illnesses legally challenged the criminal prohibition on medically assisted suicide. The Supreme Court of Canada (SCC) held that the prohibition on medical assistance in dying infringed section 7 of the Charter and was therefore unconstitutional. The SCC highlighted that “the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly.” It also confirmed that Canadian law protects patient autonomy in medical decision making, including the right of medical self-determination.³²