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Canada · Abortion · 1988–1993

Who controls the abortion decision?

Three Canadian judgments separate bodily autonomy, a partner’s attempted veto, and the limits of provincial power.

Public historical research, separate from your private cases. Each collection ends at the dates shown. Summaries describe the judgments at that time; they are not a current-law citator or an eligibility assessment. Editorial notes are in English.

The competing arguments

When does a restriction on abortion become an unconstitutional criminal barrier, and whose asserted rights can support an injunction?

Autonomy and access

The challengers focused on bodily integrity, delay, unequal access and the absence of a legal basis for a partner’s veto.

Regulation and institutional authority

The opposing arguments invoked protection of fetal life, legislative choice and provincial responsibility for health care. Each case tested a different legal route to restriction.

How the decisions connect

Editorial reading guide. Each connection links to the judgments and explains the kind of disagreement.

The decision timeline

  1. · Supreme Court of Canada

    R. v. Morgentaler

    [1988] 1 SCR 30 · 5–2; three sets of reasons supporting the result

    Could the Criminal Code require approval from a hospital therapeutic abortion committee?

    What the court decided
    The Court invalidated section 251 and restored the acquittals. Its procedures infringed security of the person and failed fundamental justice under Charter section 7; section 1 did not save the scheme.
    Where the disagreement sits
    Dickson and Lamer emphasized procedural barriers; Beetz and Estey examined access and delay; Wilson also developed liberty and freedom-of-conscience reasoning. McIntyre and La Forest dissented. Wilson’s broader reasoning was not a single majority opinion.
    Historical treatment and limits
    The committee scheme was struck down. This decision did not settle every possible future abortion regulation.
    Read the source and pinpointJudgment · [1988] 1 SCR 30

    SCR pp. 56–79, 90–122, 136–148, 161–184; separate reasons

  2. · Supreme Court of Canada

    Tremblay v. Daigle

    [1989] 2 SCR 530 · Unanimous

    Could a former partner obtain an injunction preventing an abortion on fetal-rights or paternal-rights grounds?

    What the court decided
    The Court set aside the injunction. The asserted fetal rights under the Quebec Charter and Civil Code, and the asserted paternal veto, supplied no substantive right supporting it.
    Where the disagreement sits
    Quebec’s Court of Appeal had upheld the injunction by a majority. The Supreme Court rejected that legal foundation; it did not resolve the case by declaring fetal personhood under every conceivable law.
    Historical treatment and limits
    The injunction was lifted on 8 August 1989; written reasons followed on 16 November. The Canadian Charter did not govern this private dispute without state action.
    Read the source and pinpointJudgment · [1989] 2 SCR 530

    SCR pp. 541–542, 551–572; oral disposition and written reasons

  3. · Supreme Court of Canada

    R. v. Morgentaler

    [1993] 3 SCR 463 · Unanimous

    Could Nova Scotia prohibit abortions outside hospitals through a law presented as health regulation?

    What the court decided
    The provincial legislation was invalid in pith and substance because its dominant purpose was suppressing abortion as socially undesirable conduct, a criminal-law matter within federal jurisdiction.
    Where the disagreement sits
    Nova Scotia characterized the scheme as regulation of health services. The Court examined its history, purpose and penal effects, rather than accepting that characterization.
    Historical treatment and limits
    This was a division-of-powers decision. It did not remove provincial authority over all aspects of health care.
    Read the source and pinpointJudgment · [1993] 3 SCR 463

    SCR pp. 481–513; pith and substance and legislative history

Questions worth investigating

  1. Compare Wilson’s liberty analysis with the narrower routes taken by the other judges who allowed the 1988 appeal.
  2. What source of a substantive right must exist before a court can grant an injunction?
  3. Which parts of the 1993 record showed criminal purpose rather than ordinary health regulation?
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Sources reviewed 2026-11-08. Holdings and separate opinions are summarized in our own words.