Summer Seminar: Morgentaler - A Hollow Victory?

Each summer, the Paul-André Crépeau Centre for Private and Comparative Law organizes a series of seminars to promote research of students from McGill and elsewhere. Attendance is open to all. For more information, please contact the Crépeau Centre: centre.crepeau [at] mcgill.ca

Speaker: Vanessa Di Feo (McGill University)

This presentation explores the legacy of the seminal 1988 R v Morgentaler decision. Although this case was lauded a victory for pro-choice activists across Canada, it is not without its flaws. Further, its legacy is questionable when we take a closer look at the state of abortion laws and health coverage in Canada (or lack thereof).

Comparative in nature, this presentation is divided into two main parts. The first part of this presentation explores the patchwork of abortion services that persists across Canada. Upon providing an overview of the fragmented 1988 Supreme Court of Canada decision, the speaker attempts to prove that the legacy of Morgentaler is, in fact, hollow through a comparative legal analysis. She does so by exploring a number of cases from various provinces, and demonstrates that even where there are victories, they are theoretical at best. This is bolstered with statistical research, which illustrates that the very state of uneven abortion access that led to the decriminalization of abortion in 1988 continues to jeopardize Canadian women’s health.

The second part of this presentation attempts to explain why the patchwork of abortion services continues to put the lives of Canadian women at risk. The speaker considers potential arguments, and ultimately criticizes Federalism and the Canada Health Act’s funding system. This is linked to the negative rights analytical framework set out in Morgentaler, which leaves women without recourse. Ultimately, the speaker explores other potential solutions to resolve the inefficiency of this framework, largely based on comparative law and solutions in various legal jurisdictions.