## Facts

- Dr. Henry Morgentaler and two other physicians operated a Toronto clinic that provided abortions outside the Criminal Code’s hospital-based approval system.
- The physicians were charged under Criminal Code s. 251, which broadly prohibited procuring a miscarriage but provided a limited defence if a hospital Therapeutic Abortion Committee (TAC) certified that continuing the pregnancy would endanger the woman’s life or health and the procedure was performed in an accredited hospital.
- A jury acquitted the physicians at trial.
- The Ontario Court of Appeal set aside the acquittals and entered convictions based on the Crown’s appeal on questions of law.
- The physicians appealed to the Supreme Court of Canada, arguing that s. 251 was unconstitutional under the Canadian Charter of Rights and Freedoms, principally under s. 7, and that the scheme was not saved by s. 1.

## Issues

1. Whether Criminal Code s. 251 infringed Charter s. 7 by depriving women of life, liberty, or security of the person in a manner not in accordance with the principles of fundamental justice.
2. If s. 251 infringed s. 7, whether the infringement was justified under Charter s. 1.
3. Whether defects in the TAC and hospital-only scheme rendered the criminal-law regime constitutionally invalid.

## Decision

- The Supreme Court of Canada allowed the appeal and restored the jury acquittals.
- A majority held that s. 251 violated women’s Charter s. 7 rights, principally security of the person, and the deprivation was not in accordance with fundamental justice.
- The majority held the violation was not justified under Charter s. 1.
- The Court did not create a replacement regulatory framework and left open the possibility of future legislation consistent with the Charter.

## Legal Principles

- Charter s. 7 security of the person protects bodily integrity and serious psychological harm caused by state coercion affecting core medical decisions.
- A criminal prohibition paired with an exemption process may violate fundamental justice where the process is procedurally defective in design or operation, producing arbitrary barriers, delay, and unequal access that intensify health risks.
- Even if the state objective is pressing and substantial, a rights-infringing scheme may fail s. 1 where its mechanism is not minimally impairing and imposes disproportionate burdens relative to the objective.
- The judgment invalidated the specific statutory scheme; it did not purport to declare a freestanding constitutional right to abortion, and it permitted Parliament to legislate within Charter limits.

## Conclusion

The Court held that the Criminal Code’s abortion regime, which conditioned legality on hospital performance and TAC approval, unlawfully burdened women’s security of the person through delay, arbitrariness, and unequal access, contrary to fundamental justice, and could not be justified under s. 1; the physicians’ acquittals were restored.


R. v. Morgentaler, [1988] 1 S.C.R. 30 (Can.)