Abortion and the Law

Frequently asked questions

A group of women at a protest with the most prominent sign saying "Not your body, not your life, not your choice".

Timeline: the Road to Abortion Decriminalization in Canada

Parliament enacted the first Criminal Code, which criminalized abortion and the sale, distribution, and advertisement of contraception in section 251.33

The punishment for someone who provided an abortion was lifelong imprisonment.

Parliament decriminalized contraception34 and some abortions, provided that a hospital committee certified that continuation of the pregnancy would likely endanger the pregnant person’s life or health.
The Badgley Committee report of the Ministry of Justice concluded that the abortion law was not being applied equitably across Canada.35

The report stated that “the procedure provided in the Criminal Code for obtaining therapeutic abortion is in practice illusory for many Canadian women.”36

The Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms, received Royal Assent. Several sections of the constitution would later be used to strike down Canada’s abortion law.
The Supreme Court of Canada struck down Canada's abortion law (section 251 of the Criminal Code) in R v Morgentaler, ruling that it was unconstitutional.

The Justices found that the law violated Canada's Charter of Rights and Freedoms because it infringed upon a woman's right to “life, liberty and security of the person.”

The federal government introduced a resolution to Parliament outlining a new gestation-based abortion law.37 The resolution was defeated, along with five amendments. Subsequent court decisions have further affirmed and clarified the right to access safe and legal abortions in Canada.

The federal government introduced Bill C-43.

Bill C-43, An Act Respecting Abortion, proposed to re-introduce legal restrictions for abortion in Canada.38 The Bill sought to criminalize all abortions that were non-life threatening or did not pose a major threat to a person’s physical or mental health. The person seeking an abortion would have to seek the approval from a medical practitioner. The bill included measures to criminalize anyone providing an abortion, making them liable to an indictable offence and to imprisonment for a term not exceeding two years, unless the abortion is induced by or under the direction of a medical practitioner who is of the opinion that, if the abortion were not induced, the health or life of the pregnant person would likely to be threatened.

The House of Commons narrowly passed Bill C-43.

The media reported two cases of women having clandestine, illegal abortions, the first such cases in almost 20 years. One woman died.39

Bill C-43 was defeated by the Senate.

This was a significant moment in Canadian history as the Senate, whose members are appointed, is usually considered a symbolic chamber and passes bills presented to it by the House whose members are elected by the public.

Abortion is now treated like any other medical procedure, governed by provincial and medical regulations.

While several private member's bills have sought to reintroduce restrictions on abortion since 1991,40 none have successfully passed.


1 Legislative Services Branch. (2017, December 12). Consolidated federal laws of Canada, Canada Health Act. https://laws-lois.justice.gc.ca/eng/acts/c-6/page-1.html#h-151484

2 W Coughlin, K. (2018). Medical decision-making in paediatrics: Infancy to adolescence. Canadian Paediatric Society. https://cps.ca/en/documents/position/medical-decision-making-in-paediatrics-infancy-to-adolescence

3 CMA Code of Ethics and Professionalism. (2016). Canadian Medical Association. https://policybase.cma.ca/viewer?file=%2Fmedia%2FPolicyPDF%2FPD19-03.pdf#page=1

4 Consent: A guide for Canadian physicians. (2021, April). CMPA. https://www.cmpa-acpm.ca/en/advice-publications/handbooks/consent-a-guide-for-canadian-physicians

5 Consent: A guide for Canadian physicians. (2021, April). CMPA. https://www.cmpa-acpm.ca/en/advice-publications/handbooks/consent-a-guide-for-canadian-physicians

6 AC v Manitoba (Director of Child and Family Services), 2009 SCC 30; Bala, N., & Houston, C. (2015, p. 61-62). Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada. In Department of Justice Canada. https://www.justice.gc.ca/eng/rp-pr/other-autre/article12/Article12-eng.pdf; Alexander, R. (2021). When Can a Court Override a Mature Minor’s Decisions? FamilyLLB. https://familyllb.com/2021/10/26/when-can-a-court-override-a-mature-minors-decisions/

7 Carter v. Canada (Attorney General), 2015 SCC 5

8 Tremblay v. Daigle, 1989 2 SCR 530

9 R v Parker, 2000 CanLII 5762 (ON CA); Malette v Shulman 1990 CanLII 6868 (ON CA); Reibl v Hughes, 1980 2 SCR 880

10 Chaoulli v. Quebec (Attorney General), 2005 SCC 35; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 3 SCR 46.

11 Carter v. Canada (Attorney General), 2015 SCC 5

12 Tremblay v. Daigle, 1989 2 SCR 530; R. v. Sullivan, Lemay, 1991 1 SCR 489; Winnipeg Child and Family Services (Northwest Area) v. DFG, 1997 3 SCR 925

13 R v. Morgentaler, 1993 3 SCR 463

14 Canada Health Act, R.S.C. (1985) c. C-6

15 Government of Canada, Department of Justice, Electronic Communications. (2022, April 5). Learn about the Charter- Canada’s System of Justice. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/learn-apprend.html

16 Right to Life, Liberty and Security of the Person - Centre for Constitutional Studies. (2019, July 4). Centre for Constitutional Studies. https://www.constitutionalstudies.ca/2019/07/right-to-life-liberty-and-security-of-the-person/

17 https://www.arcc-cdac.ca/media/position-papers/61-Canadian-abortion-regulation.pdf. (2023, April). Abortion Rights Coalition of Canada. https://www.arcc-cdac.ca/media/position-papers/61-Canadian-abortion-regulation.pdf

18 Legislative Services Branch. (2020, August 7). Consolidated federal laws of canada, THE CONSTITUTION ACTS, 1867 to 1982. https://laws-lois.justice.gc.ca/eng/const/page-3.html#h-17

19 Ibid

20 Ibid

21 Canada Health Act, R.S.C. (1985) c. C-6.

22 Ibid

23 Canada Health Act Annual Report 2018-2019. (2020). Government of Canada. https://www.canada.ca/content/dam/hc-sc/documents/services/publications/health-system-services/canada-health-act-annual-report-2018-2019/pub1-eng.pdf

24 Ibid

25 Reguly, Ramsden, D., & Wang, W. (2023, June 29). Private health facilities in Ontario: government continues to release details on the new regime | Insights | Torys LLP. Torys. https://www.torys.com/en/our-latest-thinking/publications/2023/06/private-health-facilities-in-ontario

26 Know which services are covered outside Québec | Régie de l’assurance maladie du Québec (RAMQ). (n.d.). https://www.ramq.gouv.qc.ca/en/citizens/absence-quebec/know-which-services-are-covered-outside-quebec

27 Health Canada. (2022, November 21, chapter 2). Canada Health Act Annual Report 2020-2021. Canada.ca. https://www.canada.ca/en/health-canada/services/publications/health-system-services/canada-health-act-annual-report-2020-2021.html

28 Government of Canada. (2015). How Drugs are Reviewed in Canada. https://www.canada.ca/en/health-canada/services/drugs-health-products/drug-products/fact-sheets/drugs-reviewed-canada.html

29 Government of Canada. (2014). Questions and Answers - Prescription Drug List. https://www.canada.ca/en/health-canada/services/drugs-health-products/drug-products/prescription-drug-list/questions-answers.html

30 Criminal Code of Canada, RSC 1985, c C-46, s 423.2

31 Faassen, M. (2023, May 23). The impact on health workers of the politicization of COVID-19 public health measures: Canada’s criminal Law response. McGill Journal of Law and Health. https://mjlh.mcgill.ca/2022/11/28/the-impact-on-health-workers-of-the-politicization-of-covid-19-public-health-measures-canadas-criminal-law-response

32 Carter v. Canada (Attorney General), 2015 SCC 5

33 The History of Abortion in Canada. (2017, March). Abortion Rights Coalition of Canada. https://www.arcc-cdac.ca/media/position-papers/60-History-Abortion-Canada.pdf 

34 Post-1969: The Omnibus Bill and Abortion  · The State in the Bedroom - The Evolution of Reproductive Rights in Canada · Exhibits. (n.d.). https://exhibits.library.utoronto.ca/exhibits/show/stateinthebedroom/omnibusbill#:~:text=The%20Criminal%20Law%20Amendment%20Act,by%20three%20or%20more%20doctors

35 Canada. Report of the Committee on the Operation of the Abortion Law, (Ottawa: Ministry of Supplies and Services, 1977) (Chair: Robin Badgley) | Bora Laskin Law Library. (n.d.). https://library.law.utoronto.ca/whrr/Badgley_Report 

36 Ibid, pg. 28

37 Ollerhead, L. (1993, May). Abortion in Canada: legislative limbo and the Morgentaler Factor | Origins. Origins. https://origins.osu.edu/read/abortion-canada-legislative-limbo-and-morgentaler-factor?language_content_entity=en

38 Ongoing Challenges to Abortion · The State in the Bedroom - The Evolution of Reproductive Rights in Canada · Exhibits. (n.d.). https://exhibits.library.utoronto.ca/exhibits/show/stateinthebedroom/ongoingchallenges

39 Todd, P. (1990, June 13). Woman bleeds to death after aborting her fetus. Toronto Star.

40 Anti-Choice private member bills and motions introduced in Canada since 1987 | Abortion Rights Coalition of Canada. (2023, June 19). Abortion Rights Coalition of Canada. https://www.arcc-cdac.ca/presentations-anti-bills/ 

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