Chief Justice Laskin CJC | ||
 | ||
Full case name Dr. Henry Morgentaler (Appellant) v Her Majesty The Queen (Respondent) and Attorney General of Canada, Foundation for Women in Crisis, Canadian Civil Liberties Association, Alliance for Life, Association des médecins du Québec and the Front Commun pour le Respect de la vie, and Fondation pour la vie (Interveners) Citations Morgentaler v. The Queen, [1976] 1 S.C.R. 616 Prior history APPEAL from a judgment of the Court of Queen's Bench, Appeal Side, Province of Quebec: R v Morgentaler, [1974] CA 129 (Casey, Rinfret, Crete, Bélanger and Dubé JJ.A). Puisne Justices Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ Majority Pigeon J, joined by Martland, Ritchie, Beetz and de Grandpré JJ Similar R v Morgentaler, R v Perka, Tremblay v Daigle, R v Big M Drug Mart Ltd | ||
Morgentaler v R (also known as Morgentaler v The Queen) is a decision of the Supreme Court of Canada where physician Henry Morgentaler unsuccessfully challenged the prohibition of abortion in Canada under the Criminal Code. The Court found the abortion law was appropriately passed by Parliament under the laws of federalism. This was the first of three Supreme Court decisions on abortion that were brought by Morgentaler.
Contents
Background
Morgentaler was prosecuted, for openly providing abortions, by the provincial government of Quebec three times, but they failed to secure a conviction at a jury trial:
Morgentaler challenged the law on two grounds. First, on the grounds that modern abortion techniques were no longer a threat to the woman's health so the dangers that the law was intending to protect no longer applied and consequently the law no longer had a valid criminal purpose required under the federal government's criminal law-making power under section 91(27) of the Constitution Act, 1867. Second, on the grounds that the provisions violated the Bill of Rights.
Reasons of the court
The Court, split 6 to 3, held that the abortion provisions were still valid as there was still a criminal law purpose in prohibiting abortion even without there being a danger to the woman. The general purpose of the law was to "protect the state interest and the foetus", which was sufficient to invoke the criminal law power under the Constitution.
The Court also rejected the challenge on the basis that it violated the Bill of Rights.
Aftermath
It would not be until 13 years later, after the introduction of the Charter, that Morgentaler successfully challenged the provisions in the decision of R. v. Morgentaler (1988).
In 1993, Morgentaler also successfully challenged a provincial attempt to regulate abortion in the decision of R. v. Morgentaler (1993).