The Legal Status of Abortion in Canada Is Shakier Than You Think

by Julian A.S.

With Donald Trump’s re-election in the United States, reproductive healthcare is top of mind for many people. In recent weeks, I’ve had a few conversations with friends who are concerned about what the backsliding of reproductive rights in the US might mean for Canada. While I don’t think that American politics play a decisive role in Canadian law—especially in terms of largely-settled social issues like abortion and gay marriage for which there is broad public support—I do think that the legal status of abortion in Canada is actually much more precarious than most people realize.

Abortion is legal in Canada, but it is not a protected right. Since the late 1980s, Canadians have enjoyed a relatively stable status quo of (largely, but not universally) accessible and safe abortion care provided through the public healthcare system, though we arrived at this reality as a sort of fluke after an unlikely series of events.

Abortion was illegal in this country for most of Canadian history. Originally, laws criminalized both administering as well as receiving an abortion. There were no exceptions for medical necessity, and even abortions performed on compassionate or emergency medical grounds could result in prosecution, though this proved difficult to enforce in practice as juries were often reluctant to convict people charged under such circumstances.

In 1968, Pierre Eliot Trudeau’s Liberal government amended the law to permit some medically necessary abortions. Section 251 of the Criminal Code allowed for abortion if a doctor believed that the continuation of a pregnancy would cause medical harm to the mother. However, these procedures could only take place at a participating hospital, and only after a review panel of three further medical doctors, called a therapeutic abortion committee (TAC), agreed that the abortion was medically necessary.

Performing or receiving an abortion outside of this highly restrictive framework remained a criminal offense.

While this was intended as a progressive harm reduction move for the health and safety of mothers, it became clear that the law was poorly conceived and being applied arbitrarily. The standard for what constituted a threat to the health of a mother was unclear, leading to wild variation in who was permitted an abortion and why depending on which hospital and which doctors were involved. Those seeking an abortion also had no right to appear before their TAC, and TACs were not required to provide their reasoning if they denied an abortion. The fact that at least four doctors with knowledge of abortion care—the petitioning doctor, plus the TAC—must have been involved in any abortion also meant that procedure was effectively unavailable in rural areas with fewer healthcare resources and smaller (or no) hospitals.

Protesters in Montréal rally in support of Dr. Henry Morgantaler • Antoine Desilets / Bibliothèque et Archives nationales du Québec

During this era, a number of activists were working furiously to alter these rules. The most famous was Dr. Henry Morgentaler, who opened illegal abortion clinics, performed abortions, and was a fierce advocate of legal and safe access to abortion care. Morgentaler became a national symbol of the abortion rights movement, and was repeatedly prosecuted for providing abortions. He would ultimately fight numerous legal battles, with massive implications for Canadian law.

In the landmark 1988 R v Morgentaler ruling, the Supreme Court struck down section 251 of the Criminal Code as unconstitutional. The majority ruled that the law violated a woman’s right to “life, liberty, and the security of the person” as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. By nullifying section 251, the Supreme Court effectively decriminalized abortion in Canada. The ruling was not, however, a broad assertion that any restriction on abortion was unconstitutional, but rather that the law as written violated section 7. This decision did not preclude future legislation from outlawing abortion if such law could be construed as a reasonable limit to protected rights.

In response, the Mulroney Progressive Conservative government soon made two serious attempts to re-introduce criminal law on abortion. The first bill, introduced prior to the fall 1988 election, would have allowed most early-term abortions, while criminalizing those later in a pregnancy. This attempt was easily defeated in the House of Commons by, ironically enough, a coalition comprised of those on opposite sides of the issue: those who thought the law was far too permissive, and those who did not want to re-criminalize abortion at all.

In the federal election that fall, the PCs were re-elected with another decisive—though diminished—majority. The following year, in 1989, the government introduced Bill C-43, a much more restrictive law which would have re-criminalized all abortions not performed for the health of the mother. This time, the bill passed in the House of Commons, and was poised to become law. It seemed as if abortion would remain largely illegal in Canada.

Then, something truly remarkable happened. Despite passing in the House, the bill died in the Senate after receiving a tied vote. This incident came as a shock. In fact, it was the first time in decades that the Senate had directly overturned legislation passed by the House.

As a result, Bill C-43 was not passed into law, and abortion remained decriminalized in Canada as a direct result of the R v Morgentaler ruling.

Since then, no subsequent government has attempted to re-engage with the issue or introduce new legislation. Conservative Prime Minister Stephen Harper famously pledged not to reopen the abortion debate in parliament, a promise which he ultimately kept.

Since 1988, the Canada Health Act is the legislation which governs abortion in Canada. Of note, this act does not explicitly provide for abortion. Instead, abortion falls under the same umbrella as other insured medical and surgical procedures. Provinces have additional policies in place which govern the provision of care in their jurisdiction. Like with most other healthcare in Canada, this has led to a situation in which access to abortion varies wildly depending on where you live: someone living in downtown Toronto might have several straightforward options to access an abortion, while someone in a remote Indigenous community might have no viable options at all.

Instead of being criminally restricted in any way, abortion is a de facto matter of healthcare in Canada. This has been the case for nearly 40 years.

This somewhat delicate status quo is not the sort of robust legal framework guaranteeing abortion access that I think many Canadians assume exists. It feels like abortion is legally protected, or a right of some kind. And upon further litigation, that might turn out to be true. But the current reality is much more complicated.

There are good reasons to believe that elective abortion will remain legal and accessible in Canada. First and foremost, access to abortion is widely popular; it is very unlikely that any government would perceive a mandate to limit or re-criminalize the procedure. Any attempt to do so would likely be politically unviable. Such a move would be an uphill legal battle as well given how the court ruled in R v Morgentaler and subsequent decisions; it is clear that criminal restrictions on abortion would have to toe a very fine line in order to remain constitutional. Importantly, Canadian courts are also not politicized to the extent of those in the United States, making a situation like the massively unpopular and precedent-upending Dobbs decision far less likely here.

But there is also cause for concern. A sneaky federal government could amend the Canada Health Act to exclude abortion from the general pool of insured medical procedures, further pushing the provision of abortion care into limbo. A province could decide through health policy that abortion will no longer be treated as just another procedure in their system (the feds actually have very limited enforcement power to bring rogue provinces into line if they violate the principles of the Canada Health Act). The strategic appointment of anti-abortion Senators could slowly reach a critical mass, eventually enabling renewed criminalization to pass, or torpedoing explicit protections. A simmering American-style politicization of the judicial system could undermine abortion access through a series of questionable rulings. Or any number of crafty ploys designed to upend the status quo.

I’m not saying that these scenarios are likely, nor that they would be popular. But I think they are far more plausible than most Canadians realize. As recent events in the United States have made clear, popular support and legal precedent for abortion rights does not preclude successful maneuvering by a highly motivated activist minority seeking to undermine abortion access.

So what’s the best path forward? Is it better to maintain Canada’s relatively stable yet potentially vulnerable status quo, or should the government move to enshrine abortion access more securely in the law, at the risk that reinvigorating the debate could ultimately topple the largely-settled social, political, and/or legal consensus? Interestingly, many advocates of abortion are actually opposed to reopening a legislative debate on the issue.

I’m not sure what the best ways to guarantee Canadians equitable, accessible, and safe abortion care might be. But I do think that a better societal understanding of the status quo will be an important part of improving it.

Since 1988, abortion in Canada has been approached and regulated as healthcare, with no superseding criminal law on the books. All things being equal, it will remain that way. Though with an eye to our southern neighbours, we would do well to remember that—in our complicated and imperfect democracies—nothing should be taken for granted.