Abortion in Canada

Canada is unusual among Western democracies in having no criminal law on abortion at any stage of pregnancy. Since the Supreme Court of Canada struck down the existing provision in R v Morgentaler in 1988 and Parliament’s replacement bill died in the Senate in 1991, the country has been governed by a legal vacuum rather than a settled compromise.¹ Conservatives are divided over this state of affairs: social conservatives regard the absence of any protection for the unborn as a moral and legislative failure, while pragmatists within the Conservative Party have concluded that reopening the question is neither winnable nor prudent.

The result is a distinctively Canadian settlement in which the governing party of the right has, for two decades, formally committed not to legislate, even as a portion of its base continues to press the issue.

Key Takeaways

• R v Morgentaler, [1988] 1 SCR 30, struck down Criminal Code section 251 by a 5-2 margin, leaving Canada with no criminal abortion law.¹
• Brian Mulroney’s government tried to legislate again with Bill C-43; it passed the Commons but was defeated on a tie vote in the Senate on January 31, 1991.²
• Official Conservative Party policy since 2005 states that a Conservative government will not introduce legislation to regulate abortion.
• Leaders Stephen Harper, Andrew Scheer, and Pierre Poilievre have each upheld that no-legislation stance, while differing personally.
• Debate has shifted from criminal law to provincial access and funding, especially for clinics outside major cities.

History And Context

Before 1969, abortion was a criminal offence in Canada. The Criminal Law Amendment Act of 1969 permitted abortion only when a hospital’s therapeutic abortion committee certified a threat to the woman’s life or health. The physician Henry Morgentaler openly defied that regime, opening clinics and performing abortions outside the committee system, and was prosecuted repeatedly.

His challenge reached the Supreme Court of Canada, which on January 28, 1988, ruled 5-2 in R v Morgentaler that section 251 of the Criminal Code violated the section 7 Charter guarantee of security of the person, principally because the committee system imposed arbitrary and unequal delays.¹ The Court did not declare a constitutional right to abortion; it struck down a specific, procedurally defective law and left the field to Parliament.

Brian Mulroney’s Progressive Conservative government attempted to fill that field. Bill C-43, introduced in 1989, would have re-criminalized abortion except where a physician judged a threat to the woman’s health. It passed the House of Commons but was defeated on a 43-43 tie in the Senate on January 31, 1991.² No government has introduced replacement legislation since. The Conservative Party of Canada, formed in 2003, adopted as official policy that it would not support legislation regulating abortion, a position reaffirmed at successive conventions.

The Conservative Position

There is no single conservative position; there is a managed disagreement. The pragmatist line, dominant at the leadership level, holds that the abortion question is electorally toxic and constitutionally settled enough that reopening it would forfeit government for no achievable gain. Stephen Harper as prime minister permitted backbench motions touching on related matters but stated his government would introduce no abortion legislation. Andrew Scheer, who described himself as pro-life in 2019, nonetheless pledged not to reopen the debate. Pierre Poilievre has stated plainly that no law restricting abortion would pass under his government, citing the party’s long-standing policy.

The social-conservative line, held by a committed minority of members and MPs, regards that posture as an abdication. On this view, the unborn child has a claim to legal protection that no procedural settlement extinguishes, and a party of conscience should at minimum allow free votes and defend access to information and to alternatives such as adoption. The party’s policy declaration accommodates this tension by affirming MPs’ right to vote according to conscience and constituents on matters of moral conviction, while binding the party as a whole not to initiate legislation.

Differing Positions

The opposing view, broadly shared across Canada’s other parties and a majority of the public, treats the post-1988 settlement as a feature rather than a defect. On this account, Morgentaler correctly located the decision with the woman and her physician, and the absence of criminal law has not produced the harms its critics predicted: late-term abortions are rare and clinically governed, and provincial health systems regulate practice without recourse to the Criminal Code.

Proponents argue that any re-criminalization would reintroduce the arbitrariness the Court condemned, and that the live questions are now about access: ensuring timely, funded services in rural areas, the Maritimes, and the territories, where distance and limited providers can be the real constraint. They contend that a settled non-criminal framework better protects both women’s health and physician judgment than any legislative compromise Parliament is likely to reach.

References

1. R v Morgentaler, [1988] 1 SCR 30.
2. Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38; Bill C-43, An Act respecting abortion (3rd reading defeated, Senate, 31 January 1991).
3. F. L. Morton, Morgentaler v. Borowski: Abortion, the Charter, and the Courts (McClelland & Stewart, 1992), p. 3.
4. Canadian Charter of Rights and Freedoms, s. 7, Part I of the Constitution Act, 1982.