Abortion Rights in Canada: A Legal History from Criminalization to Charter Protection

Sara Santos-Vigneault
Dec 1
5 min read

Written by: Sara Santos-Vigneault

Date: October 22, 2025

Hand holds a cardboard sign reading "Abortion is Healthcare!" in pink letters, set against an urban backdrop with historic buildings.

Introduction

Canada’s legal framework on abortion has undergone a dramatic transformation over the past 150 years — from total criminalization to full decriminalization.

Today, access to abortion is governed by health regulations and protected under the Canadian Charter of Rights and Freedoms, specifically section 7, which guarantees the right to life, liberty, and security of the person [1].

This article outlines the key legal turning points in Canada’s abortion laws, including landmark court rulings, changes in federal legislation, and the evolving role of health policy. Understanding this history offers critical insight into the legal rights and health protections available to individuals today.

A Timeline of Key Legal Events

1869 – Criminal Prohibition

Abortion was first criminalized in 1869. The offence carried a punishment of life imprisonment for both the person performing the abortion and the person receiving it [2].

1892 – Criminal Code Codification

Canada’s first Criminal Code reinforced abortion as a criminal act. It also prohibited the sale and distribution of contraceptives [3].

1929 – Women Are Declared "Persons" in Law

In the Edwards v. Canada (Attorney General) decision, known as the Persons Case, the Judicial Committee of the Privy Council ruled on October 18, 1929 that women are legally recognized as “persons” under the British North America Act. This decision marked a fundamental shift in Canadian constitutional law and opened the door to broader legal recognition of women's rights [4].

1969 – Limited Legalization (Bill C-150)

The Criminal Law Amendment Act, 1968–69 (Bill C-150) introduced a narrow exception. Abortions were allowed if a Therapeutic Abortion Committee (TAC) within an accredited hospital approved the procedure, confirming that the pregnancy posed a risk to the woman's life or health [5].

1982 – Constitutional Foundations

The enactment of the Canadian Charter of Rights and Freedoms in 1982 laid the groundwork for future constitutional challenges. Section 7 became a key provision used to contest abortion restrictions [1].

1988 – Supreme Court Strikes Down Abortion Law

In R. v. Morgentaler, the Supreme Court declared section 251 of the Criminal Code unconstitutional. The Court ruled that the abortion law violated section 7 by imposing unjustified barriers to health care access and bodily autonomy [6].

1989 – Fetal Personhood Rejected

In Tremblay v. Daigle, the Court held that a fetus has no legal status as a person under Quebec civil law or the Charter, and that men do not have legal standing to prevent an abortion [7].

1993 – Federal vs. Provincial Jurisdiction

In a second Morgentaler decision, the Court struck down Nova Scotia regulations that sought to restrict abortion through provincial health legislation, reaffirming that criminal law is a matter of federal jurisdiction [8].

2015–2019 – Introduction and Expansion of Mifegymiso

In 2015, Health Canada approved Mifegymiso, a two-drug combination for medical abortion. Initially, access was restricted, but between 2017 and 2019, prescribing conditions were relaxed, and all provinces and territories began covering it under public health insurance [9][10][11].

Medical device cables in focus, blurred women lying down in background. Bright setting, blue and gray equipment, calm atmosphere. — Image by <a href=

Legal Impact of the Morgentaler Decision (1988)

The Supreme Court’s ruling in R. v. Morgentaler was a constitutional milestone. The Court held that requiring TAC approval created unequal access, delays, and emotional distress. Chief Justice Dickson stated that the law interfered with a woman’s control over her own body — a core component of liberty and security under section 7 [6].

The decision did not establish a “right to abortion” per se but removed criminal barriers and left regulation to health systems and constitutional boundaries.

Current Legal Framework and Federal Authority

Today, there is no federal criminal law prohibiting abortion in Canada. Instead, abortion is treated as a health care service, regulated under provincial frameworks.

Any future attempt to criminalize or limit abortion must comply with the Charter of Rights and Freedoms, and satisfy the Oakes Test — a legal standard requiring that rights limitations be justified in a free and democratic society. The Oakes test involves four criteria: a pressing and substantial objective, rational connection, minimal impairment, and proportionality [1].

Courts have consistently reaffirmed that health-related abortion access cannot be indirectly criminalized under provincial authority, as seen in R. v. Morgentaler (1993) [8].

Access Challenges Despite Decriminalization

While abortion is legal in Canada, access remains uneven across regions.

Challenges include:

Lack of providers in rural and remote areas
Hospital policies that restrict services
Misinformation and stigma
Limited access to surgical abortion outside urban centres

Health Canada’s loosening of Mifegymiso regulations has improved early abortion access, but physical and social barriers persist [10].

Woman in lab coat examining a specimen under a microscope in a laboratory. Papers and equipment are visible. Serious and focused mood. — Image by <a href ="

Global Context and Comparison

Compared to other nations, Canada has one of the least restrictive legal environments for abortion. The procedure is treated solely as a health care matter, without criminal sanction. In contrast, countries like the United States have seen recent legal regressions, while others, such as Ireland and Argentina, have undergone liberalization only in the past decade. Canada’s model is frequently cited in international reproductive rights discussions as an example of Charter-based protection.

Looking Forward: Emerging Legal and Policy Issues

Legal access does not guarantee universal availability. Disparities persist, especially in remote, northern, and Indigenous communities where health infrastructure is limited. Telemedicine and mail-order Mifegymiso have increased rural access, but broadband gaps and logistical challenges remain.

Future legal debates may test the scope of provider conscience rights, the responsibilities of provinces to ensure equitable access, or Charter-based claims arising from health system delays.

Conclusion

Canada’s abortion law has evolved from criminal prohibition to a health care framework grounded in constitutional rights. The absence of criminal regulation reflects judicial recognition that reproductive autonomy is protected under section 7 of the Charter.

Legal milestones such as R. v. Morgentaler (1988), Tremblay v. Daigle (1989), and the Persons Case (1929) continue to shape the conversation around reproductive rights. However, ongoing vigilance is needed to ensure that legal access translates into practical availability for all who need it.