Implications of Abortion Legislation

The Implications of Legislating Access to Abortion in Canada 

Since R. v. Morgentaler (1988), the Supreme Court of Canada has decriminalized abortion without establishing legislation to outline explicit rights to access. Although enacting laws could combat existing barriers to abortion access in Canada, they could lead to increased government oversight and possible limitations. To explain the drawbacks of abortion legislation, this paper first considers how abortion laws, such as Roe v. Wade, can be overturned, exacerbating challenges to reproductive care in Canada (Macfarlane, 2022). Next, this paper assesses the 1988 Morgentaler decision to show how the absence of law has changed the debate over abortion from one centred on politics to one centred around healthcare (Erdman, 2024). Finally, this paper considers how laws can become restrictive, threatening access to abortion care in Canada. This is evident as provinces have previously attempted to implement measures prohibiting abortion services (Shaw & Norman, 2020); similarly, legislation meant to legalize acts—particularly those governing sex work—have turned repressive (Chu, S. K. H. et al., 2019). By analyzing the overturn of Roe v. Wade, Morgentaler’s impact in redefining abortion, and the possible limitations of introducing abortion legislation, it’s evident that explicitly writing in laws surrounding access to abortion services in Canada could end up undermining in lieu of defending reproductive rights. 

In 2022, Roe v. Wade, a case that established constitutional protections for abortion rights in the United States was overturned. Prior to Roe’s reversal, the American Supreme Court made it so that the right to abortion was subject to non-arbitrary restrictions. In 1992, after Planned Parenthood v. Casey, abortion rights were further narrowed, with the states having more authority to intervene how they deem fit (Totten, 2025a). Finally, in 2022, through Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court voided all federal protections for abortion and left the states entirely responsible for legislating abortion care. The states spared no time implementing bans, near-total bans and gestational limits on abortion; certain states have no exceptions for abortion in cases of health, life, rape, incest or fatal fetal anomaly (KFF, 2025). The overturn of Roe illustrates how legislation is always at risk of being revoked. There is a possibility that introducing laws that regulate access to abortion services in Canada could leave room for the Supreme Court to overturn the law, creating more barriers to access (Macfarlane, 2022). As Emmett Macfarlane, a professor at the University of Waterloo, stated, although a “criminal ban on abortion is remote,” it’s not impossible (2022, p. 2). Access to abortion in Canada is protected because no statute can be repealed; the law does not exist (Erdman, 2024).

Furthermore, when Canada completely legalized abortion during Morgentaler, they did so based on bodily autonomy that was in accordance with s. 7 of the Charter of Rights and Freedoms (Macfarlane, 2022, p. 2). However, these provisions are still very broad and “it is well established in political science that [interpretations are] informed at least in part by the ideology of the justices in the Court” (Macfarlane, 2022, p. 3). This means that legislating abortion could leave it in the hands of parliament members (MPs) and judges who do not support the right to choose nor have any interest in broadening access to reproductive care. Codifying access to abortion services could render them more vulnerable to legislative shifts. Such restrictions could be annulled in the future by an administration that shares anti-abortion views (Macfarlane, 2022, p. 3). Outright bans can criminalize anyone who wants or needs an abortion, regardless of any circumstances. Therefore, explicitly writing in access to abortion services could worsen contemporary barriers. 

Secondly, R.v. Morgentaler, a landmark case in legalizing abortion in Canada in 1988, demonstrates how because abortion has become a healthcare concern, it is no longer a legal issue that could be regulated by a statute, a statue that could restrict access. In 1969, the abortion laws first put in place by Parliament were fairly strict. These laws prohibited abortions unless they occurred at an accredited hospital, a committee approved them, and it was out of medical necessity (Totten, 2025b). Dr. Henry Morgentaler opened multiple private abortion clinics across Canada, where he offered elective abortions. He challenged Canada’s criminal abortion laws, and his case eventually reached the Supreme Court (Totten, 2025b). During the trial, it was found that the current abortion laws were unconstitutional and violated s. 7 of the Charter: “the right to life, liberty, and security of a person(s)” (Totten, 2025b). Since then, there has been an absence of laws regulating abortion, and it remains an issue within the purview of healthcare rather than constitutional law. Morgentaler did not necessarily guarantee a right to an abortion; it guaranteed a right to healthcare (Erdman, 2024, p. 17-18). 

Moreover, in 1991, the Supreme Court confirmed that unborn babies cannot be classified as “persons.” Therefore, according to Canadian law, a fetus cannot possess legal rights (Shaw & Norman, 2019, p. 51). This further exemplifies how abortion has strictly become healthcare, no longer involving two persons. The decriminalization of abortion has no humanitarian impact, as unborn babies do not have rights over pregnant person(s). Erdman defines abortion rights as having “techno-managerial” (2024, p. 18) characteristics, meaning that abortion is treated as a healthcare service. This approach has made access more widespread and less tainted by political viewpoints. A member of Dr. Morgentaler’s defence attorney even went as far as to say, “I had never felt such waves of personal indignation [until] I heard these arrogant, incomprehensible doctors decide the fate of others, the comfort of others as though it was a purely theoretical problem” (Erdman, 2024, p. 19-20). Morgentaler’s defence attorney believed that abortion is inherently violent as it “treats someone’s life as a philosophical exercise” (Erdman, 2024, p. 20). Explicitly establishing the right to access abortion services in Canadian law may prevent care from being provided, especially if it is required, such as if the pregnant person's life is in danger or the fetus is unviable. It was found that all induced abortions after 20 weeks of the gestation period are predominantly related to fetal abnormalities (Shaw & Norman, 2020, p. 54). If another’s liberty—the mother’s—is infringed, the law cannot dictate if the procedure can or cannot be done. The health and life of another must triumph over the law. 

Legislation outlining access to abortion services could politicize abortions again and change the existing narrative that prevents restrictions from being implemented. If laws were enacted, it’s possible that gestational limits, waiting periods and additional barriers could be enforced, inhibiting access. These legislative constraints could prevent individuals from accessing reproductive care and can interfere with an individual’s bodily autonomy. Suppose abortion is no longer classified as a healthcare procedure, becoming a legal matter. In that case, legislation does not guarantee that the freedom to choose will still be ensured (Erdman, 2024, p. 20). Legal definitions cannot effectively translate the reproductive experiences of women, which are entirely individualistic (Erdman, 2024). The current framework in Canada for abortion is advantageous as it enables broad access. Contrastingly, nations with abortion regulations face many legal disputes that further restrict access; this was evident in the United States. Explicitly establishing a right to access abortion services poses the risk of endangering the health and safety of millions of Canadian women. 

Lastly, writing the right to access abortion services into Canadian law can lead to it becoming narrowed or further restricted in the future. This is first illustrated through previous attempts from provinces and other elected officials to restrict abortion access. Legislation on the federal level gives provinces more freedom to follow their own interpretations of the law. Even without constitutional protections for abortion, current obstacles to access are because of the provinces. According to the Canadian Medical Association, “The remaining barriers to access are not coming from a federal regulatory level perspective but might be more provincial” (Vogel & Duong, 2022, p. 2). In 2022, the Federal Government withheld funding from New Brunswick for refusing to provide financial aid for abortions outside three hospitals (Vogel & Duong, 2022, p. 1). Nova Scotia still only has one abortion clinic (Vogel & Duong, 2022, p. 1). Up until 2019, Prince Edward Island (PEI) refused to provide any abortion services; they were forced to open a clinic due to threats of a lawsuit (Shaw & Norman, 2019, p. 51). In 2006, 2008, 2010, and 2012, multiple attempts were made by provincial governments to obstruct the mother’s right to choose and limit access to abortion services (Shaw & Norman, 2019, p. 51). In short, there have been around 46 anti-choice or anti-abortion bills introduced since Morgentaler, all of which were defeated (Vogel & Duong, 2022, p. 2).

Nevertheless, this is very alarming, as there have been ongoing efforts to interfere with the decriminalization of abortion. The vast majority of opinions show that although abortions have become less stigmatized in the past few years, there is still division on the topic. It is evident through these restrictive attempts made by provinces that abortion isn’t accepted nationally. Federal legislation for abortion may provide provinces with a legal basis to enact specific constraints. Provinces that have made previous attempts to endanger access may again. It’s also possible that the federal government will impose the right to access abortion services with non-arbitrary limitations. This may incentivize provinces to add new barriers, including approval procedures, oversight on private clinics, and advanced debates over fetal viability.

Furthermore, in 1990, the Progressive Conservative Party passed Bill C-43, which sentenced “doctors to two years in jail for providing abortions where a woman’s health was not at risk” (Shaw & Norman, 2019, p. 51). However, after passing through the House of Commons, the Bill in 1991 was defeated in the Senate because of a tie vote. Strikingly, it was only a split vote that prevented abortion from becoming illegal in Canada again. Explicitly writing in protections for access to abortion services could leave room for parties and MPs to narrow the law. There is a risk that this access could be threatened by conservative members of parliament. As stated previously, as of 1991, unborn babies cannot be classified as “persons.” However, in 2008, Bill C-484 was introduced, a law that could’ve endangered access to abortion and the rights of pregnant person(s) by establishing fetal personhood (Vogel & Duong, 2022, p. 2). Although it was never passed, it demonstrates again how the government and MPs still try to limit access. The current reproductive standards in Canada may be completely undermined if this significant responsibility- legislating the right to get abortion services- is left to a diverse group of parliamentarians with varying moral philosophies. 

The Protection of Communities and Exploited Persons Act (PCEPA) is another example of how written laws that are intended to decriminalize can, in practice, do the exact opposite. Legislating abortion law in Canada would hopefully broaden access to reproductive services. Yet, there’s a chance that the law could lead to negative repercussions. The PCEPA was aimed to amend the Criminal Code based on the Supreme Court of Canada's decision in Canada v. Bedford. Even so, sex work was subject to being criminalized. Sex workers continue to be predisposed to repressive laws. Many workers have shared their own experiences: “Multiple sex workers and key informants described law enforcement treating sex workers in an intimidating manner well into the years following the passage of the PCEPA, sometimes with lasting psychological consequences” (CH, S. K. H., et al., 2019, p. 23). The PCEPA made it illegal to purchase sexual services, advertise services, and work in safe, private settings, condemning crucial elements of the sex industry (Totten, 2025c). The result of the PCEPA illustrates how regulations to protect an individual’s bodily autonomy can be counterproductive. Therefore, there is a possibility that legislating abortion may lead to law enforcement criminalizing pregnant people for trying to access abortion services. When the PCEPA was first introduced, Parliament hoped to replicate the “Nordic model” and asymmetrically criminalize sex work to end the sex industry (Totten, 2025c). However, the approaches proposed in the PCEPA were somewhat different. The government failed to provide sex workers with social services and support to encourage workers to leave the industry. 

Ultimately, the PCEPA uses punishment to solve a “problem,” hurting the people it claims to protect. Access to abortion services, if legislated, could follow the same trajectory. Despite how explicitly writing laws for abortion services would be done with the best of intentions, it will likely introduce new legal weaknesses. Abortion laws may unintentionally violate reproductive rights by mimicking the unexpected effects of PCEPA. It’s evident through the PCEPA that parameters established by the government often fail in the real world (CH, S. K. H., et al., 2019). If access to abortion services is administered, there is a risk that individuals may be unable to receive necessary healthcare. Additionally, because abortion is such a polarized topic, there is a chance that multiple different opinions inform the final Bill. It could become a blend of ideological beliefs that don’t resemble the healthcare narrative that currently defines abortion in Canada. There’s a possibility that implementing a law that is supposed to benefit citizens may lead to unintentional consequences. 

Overall, explicitly writing in access to abortion services may pose many risks that could exacerbate barriers instead of reducing them. This is evident based on the overturn of Roe v. Wade, Morgentaler’s influence in revolutionizing abortion, and the potential restrictions that could be applied if legislation is passed. The overturning of Roe v. Wade demonstrated how legislation can be completely repealed by the government or parties that don’t support it, threatening access to care (Macfarlane, 2022). Morgentaler’s ruling provided a framework for abortion that ensured it was viewed as a medical issue rather than a legal issue, keeping the abortion rate steady since then (Shaw & Norman, 2019, p. 54). Lastly, there is a possibility that legislation could become restrictive. This is evident as provinces and MPs have not all endorsed broadening care (Shaw & Norman, 2019), and the PCEPA, a law that was created to decriminalize sex work, became a means of criminalizing the entire industry (Chu, S. K. H., et al., 2019). Abstract declarations cannot adequately represent the unique reproductive experiences of women and certainly cannot guarantee access to combat the barriers today (Erdman, 2024). To safeguard the right to choose and expand access, the government must focus on offering healthcare-based solutions above statutes. Canada can ensure widespread access to abortion services without running the risk of legal manipulation. It’s about time we recognize that women’s healthcare and the freedom to choose are fundamental liberties that cannot be negotiated or challenged politically.

References

Chu, S. K. H., Clamen, J., & Santini, T. (2019). The perils of “protection”: Sex workers’ experience of law enforcement in Ontario. Canadian HIV/AIDS Legal Network.

Erdman, J. (2024). Abortion Rights Without Law: A Constitutional Reflection. Constitutional Forum, 32(4), 15–20. https://doi.org/10.21991/cf29469  

KFF. (2025, March 18).  Abortion in the United States Dashboard. KFF. https://www.kff.org/womens-health-policy/dashboard/abortion-in-the-u-s-dashboard/

Macfarlane, E. (2022). The overturning of Roe v. Wade: Are abortion rights in Canada vulnerable? Canadian Journal of Political Science, 55(3), 734-739. ​​https://doi.org/10.1017/S0008423922000452 

Totten, T. (January 24, 2025a). Lecture 15. SOSC 1350: Abortion and Reproductive Justice. [Video]. York University eClass. York University. https://eclass.yorku.ca/mod/page/view.php?id=3148391. 

Totten, T. (January 16, 2025b). Lecture 14. SOSC 1350: Abortion and Reproductive Justice. [Video]. York University eClass. York University. https://eclass.yorku.ca/mod/page/view.php?id=3148390. 

Totten, T. (Feburary 6, 2025c). Lecture 17. SOSC 1350: Sex Work and the Law. [Video]. York University eClass. York University. https://eclass.yorku.ca/mod/page/view.php?id=3151521. 

Shaw, D., & Norman, W. V. (2020). When there are no abortion laws: A case study of Canada. Best Practice & Research. Clinical Obstetrics & Gynaecology, 62, 49–62. https://doi.org/10.1016/j.bpobgyn.2019.05.010 

Vogel, L., & Duong, D. (2022). What the U.S. overturning Roe v. Wade means for Canada. Canadian Medical Association Journal, 194(20), E711–E712. https://doi.org/10.1503/cmaj.1096000