Abortion in Canada: What is the Legal Status?

There are growing concerns about access to abortion in Canada after the leak of a draft document showing that US Supreme Court justices are planning to overturn a ruling on Roe v’s abortion rights. . Wade south of the border.

As it stands, there is no Canadian law that explicitly guarantees access to abortion.

Although abortion was abolished in Canada in 1988 as a result of the landmark case R. v. Morgentaler, in which the Supreme Court of Canada overturned a federal law, no legislation has been passed to replace it and the issue remains a continuing topic of political conversation in the country. this.

To protect abortion rights in the future under all governments, constitutional law expert and University of Ottawa professor Daphne Gilbert told CTV’s Your Morning the federal government would have to amend the Charter of Rights and Freedoms. do. However, she said this probably won’t happen.

“They’re going to have to try to amend the charter to have an explicit abortion right in the Constitution, and I think that’s a pretty unlikely scenario,” Gilbert said in an interview.

Gilbert said it was likely the Liberals would make good on their campaign promise to strengthen the Health Canada Act to ensure that provinces adhere to “equal access to abortion” across the country. .

During the 2021 election campaign, the Liberals promised to establish regulations under the Health Canada Act governing access to sexual and reproductive health services to make it clear that regardless of whether someone lives in Wherever they are, they have the right to access sexual and reproductive health services.

The Liberals also pledged to give Health Canada $10 million to set up a portal on sexual and reproductive health, including combating abortion misinformation and providing funding. for youth-led organizations focused on the reproductive health needs of young people.

However, these promises have yet to materialize.

Should one side introduce legislation to re-criminalize abortion in Canada in the future, Gilbert said it would be “extremely difficult” for such an effort to counter constitutional challenge.

Gilbert said the jurisprudence regarding Canada’s charter cases “has evolved so much” that if the Supreme Court weighed in, “I wouldn’t be able to imagine them saying there’s no right.”


However, the right to abortion does not exist in Canada in the same way it was protected in Roe v. Wade.

The 1988 Morgentaler ruling did not concern abortion rights, but focused on requiring a woman to obtain the consent of a doctor’s committee for the procedure to proceed legally.

Decision 5-2 ruled that aspect of the procedure was unconstitutional and eliminated criminal penalties for women who had abortions without consultation.

Judge Bertha Wilson, who was the only female on the court, found that Section 7 concerning human life, liberty and security, along with other parts of the Canadian Charter, affirmed the right to abortion. of women.

But despite this, no bill has yet been passed to bring medical abortion into law and it is not considered a constitutionally protected right under the Charter of Rights and Freedoms.

Since Morgentaler’s decision, Gilbert said Canadian courts have made a number of decisions about the importance of self-determination in relation to Section 7. Some comments have been made in this regard. Different levels of the legal system claim that Canadians have the right to make. fundamental decisions about their lives and health, most recently Carter’s decision in 2015 to legalize assisted dying (MAiD).

Gilbert said abortion rights made no difference.

“I think it’s going to be difficult [given Section 7] She said any attempt to criminally regulate abortion could withstand constitutional challenge.”


Across Canada’s provinces, abortions are regulated similarly to other healthcare procedures. Through the Health Canada Act, Canadians have the right to access sexual and reproductive health services, including abortion.

However, it is still difficult to obtain in many provinces.

Abortion can be done with pills or pills at home, however, if the fetus is over 12 weeks old, a surgical abortion must be performed.

According to Planned Parenthood Toronto, there are only 11 clinics in Ontario that offer surgical abortions, most of which are located in the southern part of the province. For example, New Brunswick does not have a single clinic that offers surgical abortions.

According to a study published by Action Canada on Sexual Rights and Health in 2019, no provider in Canada offered abortions more than 23 weeks and six days into pregnancy. People who are about to become pregnant and want an abortion often travel to the United States for surrogacy procedures, which would be in jeopardy if Roe’s lawsuit against Wade was overturned.

While politicians here insist that Canada’s abortion laws are safe, Gilbert said she’s worried about “opening up this conversation again.”

“In Canada, our anti-selection groups are heavily funded by American anti-selection groups and so I hope we will see a real concerted effort to turn this into a conversation.” story in Canada,” she said.

As there is currently no Canadian law that explicitly guarantees access to abortion, Gilbert says there is “absolutely no doubt” that provinces can implement barriers to access to abortion because of this. It’s a matter of health care, something that’s managed by provincial regulations.

She noted that limits on how late an abortion can be determined at the provincial or territorial level in Canada, and are enforced by the medical community, not the courts.

“Over the past few years, we’ve lifted many of those barriers, such as needing a referral for an abortion or refusing to pay for an in-clinic or out-of-province abortion, but some of these can come back like in the province the problems,” she said.

Thus, Gilbert reports that Roe v. Wade’s return to the US should put activists, officials and those who may need or seek abortions in Canada on high alert.

“We could see the waiting period, we could see the required consulting scenarios, and those are the things that I think we have to be very cautious about and not be complacent in Canada,” he said. she said.

Issued in 1973, the legal precedent Roe v. Wade defends the right to perform abortions across the United States.

A draft opinion, published by Politico on May 2, revealed that a majority of the nine justices of the United States Supreme Court supported the repeal of the decision. Written by Justice Samuel Alito, the ruling will allow individual US states to decide whether to restrict access to abortion and the legal regulations surrounding the procedure.

The proposed draft itself would not immediately affect access to abortion in the US.

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