Judicial Reasoning About Pregnancy and Choice

(2008) 16 Health Law Journal 281

24 Pages Posted: 11 Jun 2012 Last revised: 11 Jul 2012

See all articles by Chris Kaposy

Chris Kaposy

Memorial University of Newfoundland (MNU)

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Date Written: June 11, 2012


Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion might be constitutional. Abortion opponents organized in response to the decision, and in 1990, an attempt was made to re-criminalize abortion. This attempt, Bill C-43 came very close to succeeding.

In light of the possibility of the reintroduction of criminal law legislation against abortion an important question for women is whether Canadian courts would find a newly·written restrictive abortion law to violate the Charter of Rights and Freedoms.

In seeking to answer this question, we were keen to find out whether there are any arguments already present in judicial reasoning about choice in reproduction or about a woman's entitlement to make certain choices, that could be used to beat back the threat of the re-criminalization of abortion. We also wanted to determine whether there are ways of interpreting the concept of reproductive choice that can be found in judicial reasoning that are damaging to the illlerests of women. For these reasons, we embarked upon a systematic review of how the concept of choice has been used in Canadian judicial reasoning about reproduction since Morgentaler (1988). Specifically. we sought to find out how judges think about the relationship between pregnancy and choice.

Keywords: Choice, Abortion, Canada, Charter, Judicial Reasoning

Suggested Citation

Kaposy, Chris and Downie, Jocelyn, Judicial Reasoning About Pregnancy and Choice (June 11, 2012). (2008) 16 Health Law Journal 281. Available at SSRN: https://ssrn.com/abstract=2081855

Chris Kaposy

Memorial University of Newfoundland (MNU) ( email )

Faculty of Medicine
St. John's, Newfoundland A1B 3X5 A1C 5V3

Jocelyn Downie (Contact Author)

Schulich School of Law & Faculty of Medicine ( email )

Halifax, Nova Scotia B3H 4H9

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