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Abortion is when a pregnancy is ended before birth. Abortion was a crime in Canada until 1988. The Supreme Court of Canada struck down the law. Since then, abortion has been legal at any stage of a woman’s pregnancy. It is a publicly funded medical service under the Canada Health Act. (See Health Policy.) But access to abortion services differs across the country. Despite being legal, abortion remains one of the most divisive issues of our time.
This article is a plain-language summary of Abortion in Canada. If you would like to read about this topic in more depth, please see our full-length entry: Abortion in Canada.
Crime of Abortion and 1969 Change
Before 1969, causing an abortion was a crime under section 251 of the Criminal Code. The maximum penalty for anyone who helped a woman end her pregnancy was life in prison. If the woman herself was found guilty, the sentence was two years.
One famous abortion case took place in 1879. It involved Emily Stowe. She was the second Canadian woman to practice medicine. Stowe was charged with giving a young patient drugs to cause an abortion. She was acquitted after a long and high-profile trial. Stowe’s trial showed how seriously authorities took abortion in the late 19th century. By the mid-20th century, attitudes had changed. The abortion law was rarely enforced against doctors.
In 1969, the government of Prime Minister Pierre Trudeau changed the Criminal Code. Doctors could now perform abortions in hospitals if a pregnancy threatened the health or life of the mother. Approval from a committee of doctors was needed. In all other instances, abortion was still illegal.
Rights of Women vs. Rights of the Unborn
Abortion is still a divisive moral and political issue. It is condemned by “pro-life” advocates. They seek to defend the unborn child. It is supported by “pro-choice” advocates. They see it as a personal issue to be decided by the woman, not the state. Through the 1970s and 1980s, both pro-life groups and pro-choice groups held large public rallies. Some were held on Parliament Hill in Ottawa.
In 1967, the federal government formed the Royal Commission on the Status of Women. It held three years of public hearings. It then issued a report. The report said that abortion should be made legal for the first 12 weeks of a pregnancy. After 12 weeks, it should only be legal if the health of the mother was threatened or if the child would be born “greatly handicapped.”
During this period, much of the legal debate focused on two questions. First, does a fetus have the right to life independent of its mother. And second, does a woman’s liberty include the right to choose to end a pregnancy. Legal challenges were brought by both sides. But these questions were not settled by the courts in these cases.
1988 Supreme Court Decision
Henry Morgentaler was prosecuted for performing abortions. He was acquitted by a jury in 1973. But the jury’s finding was overturned on appeal. Morgentaler served time in prison.
In the 1980s, Morgentaler was again charged for giving abortions. In 1988, his case R. v Morgentaler went to the Supreme Court. This time, the court looked at his actions in the context of the 1982 Charter of Rights and Freedoms. The court ruled that the law on abortion in the Criminal Code violated a woman’s right to “life, liberty and security of the person.” This freedom is guaranteed under section 7 of the Charter. The court did not say that there was a right to abortion under the Charter. Rather, it said that access to abortions in Canada was “manifestly unfair.” As a result, the abortion law was struck down. It was repealed in 2019. No other law has replaced it. So, abortion has been legal in Canada since 1988.
The fetal rights issue was decided in the 1989 case Tremblay v Daigle. The Supreme Court ruled that only a person has constitutional rights. Such rights begin at the time of live birth. The Court also ruled that a father has no proprietary right to a fetus. He is not allowed to stop a woman from having an abortion.
1990 House of Commons Vote
In 1990, the House of Commons voted in favour (140–131) of a new law. It was tabled by the government of Prime Minister Brian Mulroney. The law would have made abortion illegal once again. It would have allowed abortion only in cases where the pregnancy threatened the mother’s health. But the bill died in the Senate in January 1991. It never became law.
There have been other attempts to restrict the right of women to abortions. But all such attempts failed.
Access to Abortion Services
After the 1988 Supreme Court ruling, abortion was a publicly funded service. It has been available in hospitals and private clinics. But services are not the same across the country. This is especially true in rural areas and in parts of Atlantic Canada.
In Canada, the provinces are in charge of public medicine. Some provincial governments have tried to ban private abortion clinics. Some have refused to fully fund them. In 1993, Morgentaler challenged the Nova Scotia Medical Services Act all the way to the Supreme Court. It struck down the law banning abortion clinics in that province. Also in the 1990s, Alberta and Newfoundland and Labrador agreed to fully fund the clinics after they were penalized for not doing so.
In New Brunswick, private abortion clinics have not been able to get public funding. This makes it harder to access abortion there. In Prince Edward Island, abortion services were not available until January 2017.
Recent Political Response
Abortion is now legal in Canada. But it is still a hot-button issue. Opinion polls show Canadians divided on the matter. In 2010, an EKOS/Globe and Mail poll found that 52 per cent of Canadians were pro-choice. It found that 27 per cent were pro-life. The other 21 per cent did not side with either camp.
Since 1990, federal parties and governments have steered clear of abortion. They prefer to let the Supreme Court have the last word on the subject. Several private members bills on both sides of the issue have been tabled in recent decades. None have made it through the House of Commons to become law.
The abortion issue received its highest profile in decades in 2020. Pro-life candidate Leslyn Lewis made it a key part of her campaign for the federal Conservative Party leadership. Lewis was a lawyer who had never been in government. She could not speak French. She had little chance of becoming leader. But she was endorsed by the anti-abortion group Right Now and raised nearly $2 million.
At the convention, she led the popular vote on the second ballot. She was not elected leader. But her surprisingly strong showing proved that abortion was still a viable issue within the Conservative Party.
Abortion Pill
In July 2015, the federal government allowed Canadian doctors to prescribe Mifegymiso. It is commonly known as the “abortion pill.” The two drugs that make up Mifegymiso allow women to end an early pregnancy at home. The drugs work by causing a miscarriage.
The government requires that doctors give Mifegymiso directly to patients. Doctors must also take an online course before they can dispense it. Women’s health advocates have criticized these rules. They say they complicate access to the drugs and make it harder for doctors to stock supplies of it.
