The Criminal Code of Canada governs why people can be incarcerated in Canada. Unfortunately, the Criminal Code section for abortion was struck down by the Supreme Court in R. v. Morgentaler in 1988. In the concurrence of the majority opinion written by Justice Beetz and joined by Justice Estey, he stated:
I believe that Parliament is justified in requiring what is no doubt an extraordinary medical practice in its regulation of the criminal law of abortion in accordance with the various interests at stake.
-R. v. Morgentaler 1988 decision (page 112)
What many people don’t realize is that the Supreme Court of Canada requested that the Parliament of Canada create a law that would govern the regulation of abortion evenly across the country.
The main reason for the failure of the 1969 abortion law is that it was not applied evenly across the country. An amendment to the criminal code that criminalizes abortion in all trimesters evenly across the country would therefore be constitutional in accordance with the opinions written by the justices who delivered the majority decision in R v. Morgentaler.
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