Abortion in Canada is legal throughout pregnancy and is publicly funded as a medical procedure under the combined effects of the federal Canada Health Act and provincial health-care systems. While some restrictions exist, Canada is one of the few nations with no criminal restrictions on abortion. Access to services and resources varies by region, as abortion is subject to provincial healthcare regulatory rules and guidelines for physicians. No jurisdiction offers abortion on request at 24 weeks and beyond, although there are exceptions for certain medical complications.
Formally banned in 1869, abortion remained illegal in Canadian law for the next 100 years. In 1969, the Criminal Law Amendment Act, 1968–69 legalized therapeutic abortions, as long as a committee of doctors certified that continuing the pregnancy would likely endanger the woman's life or health. In 1988, the Supreme Court of Canada ruled in R. v. Morgentaler that the existing law was unconstitutional, and struck down the 1969 Act. The ruling found that the 1969 abortion law violated a woman's right to "life, liberty and security of the person" guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms established in 1982.
In Canada, all surgical abortions are performed by a physician, with nurse practitioners, pharmacists and midwives able to provide medications for non-invasive medical abortions within nine weeks (63 days) of gestation. Canada has had a relatively stable abortion rate since decriminalization; the rate of recorded abortion per 1000 women of childbearing age (15–44) was 10.2 in 1974, rising to 16.4 abortions per thousand women in 1997, and declining to 10.1 abortions per 1000 women in 2020. However, these rates of abortion only reflect the number of abortions reported by abortion clinics and hospitals. They do not account for unreported abortions in these setting or count abortions induced by prescription drugs such as mifepristone and misoprostol taken at home, and so these official rates of abortion undercount the true rate of abortion. Nevertheless, Canada has a low abortion rate overall compared to other countries, with approximately 74,000 abortions reported in 2020. Roughly half of abortions occur among women aged 18 to 29 years and roughly 90% of abortions are performed within the first trimester (12 weeks).
History Early history
During the eighteenth and early nineteenth centuries, abortion before the “quickening” (15–20 weeksLevene, Malcolm et al. Essentials of Neonatal Medicine (Blackwell 2000), page 8. Retrieved 2007-02-15.) was legal in the British North American colonies. However, as the century progressed, the United Kingdom began to pass laws which created criminal offences relating to abortion, such as the Malicious Shooting or Stabbing Act 1803, that made performing or attempting to perform a post quickening abortion a death penalty offence. That was followed in 1837 by the Offences Against the Person Act 1837, that removed the death penalty clause, while making the procurement of any miscarriage unlawful. The British North American provinces followed the British example and began restricting abortion rights. Abortion was prohibited in Canada in 1869, two years after the country's formation. That prohibition was continued in the Criminal Code until 1969. Anyone who procured a miscarriage for a woman was liable to imprisonment for life, while a woman who procured a miscarriage for herself was liable to imprisonment for two years.Criminal Code, SC 1953-54, c. 51, s. 237(1),(2). Section 237(1) provided: "Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and liable to imprisonment for life."
As in other countries, illegal abortions were still performed, and some cases charged that this led to the deaths of women. The abortion trial of Emily Stowe (1879) is one early example.Constance B. Backhouse, "The Celebrated Abortion Trial of Dr. Emily Stowe, Toronto, 1879", Canadian Bulletin of Medical History/, Volume 8: 1991, pages 159–187. Another such case, Azoulay v The Queen,Azoulay v The Queen, 2 S.C.R. 495. reached the Supreme Court in 1952. In both cases, the alleged abortion provider was ultimately acquitted of responsibility for the woman's death. Abortion rights activist Marilyn Wilson, former executive director of the Canadian Abortion Rights Action League, says, "Illegal abortions were common, but often of poor safety. Several hundred women per year died from botched abortions.""Three decades of choice: Canada's landmark abortion law is 30 years old tomorrow." Marilyn Wilson. The Gazette May 13, 1999. pg. B.3
Liberalisation of abortion laws
Chief Coroner Shulman
The movement to liberalize Canada's abortion laws began in the 1960s. Former Chief Coroner of Ontario Morton Shulman recalls that in the sixties, abortion could be legally performed only to save the life of the woman, so there were practically no legal abortions. He stated that the pregnant daughters of the rich were sent to reliable physicians who did abortions for cash. He estimated that these physicians did twenty to thirty abortions per week. Women who were not rich were left to perform an abortion on themselves or go to what he called a "nurse" abortionist. Their method was commonly pumping Lysol into the woman's womb. The mortality rate was high and the infection rate was over 50%. He added, "By the time I became Chief Coroner, I had had the unpleasant experience of seeing the bodies of some dozens of young women who had died as a result of these amateur abortions."Shulman, Morton. Coroner, pp 58–61 Fitzhenry & Whiteside, 1975.
Shulman decided to publicize deaths from illegal abortions. He instructed his coroners to call a public inquest into each abortion death. He describes one case that he believes was the turning point, that of 34-year-old Lottie Leanne Clarke, a mother of three children, who died of a massive infection in 1964 after an illegal abortion in spite of medical treatment and antibiotics. At the inquest into her death, the jury recommended that the laws about therapeutic abortion be revised. Shulman added that a federal government committee should review the question of abortion and the law. Newspapers published editorials recommending the reform of the abortion law. In 1965, the Minister of Justice, Guy Favreau, wrote to Shulman that the recommendation would be considered in the program to amend the Criminal Code. The eventual amendment closely followed the recommendations of the coroners' juries.
Partial de-criminalisation
In 1967, Justice Minister Pierre Trudeau introduced a bill which included an amendment to the provision of the Criminal Code which prohibited abortions. The bill, known as the Criminal Law Amendment Act, 1968–69, continued the basic prohibition on abortions, with the potential life sentence. However, the bill made an exception for abortions performed in a hospital with the approval of that hospital's three-doctor therapeutic abortion committee. The committee would have to certify that the pregnancy would be likely to endanger the life or health of the pregnant woman. The term health was not defined, and therapeutic abortion committees were free to develop their own theories as to when a likely danger to "health" (which might include psychological health) would justify a therapeutic abortion. This same bill also legalized homosexuality and contraception, and would be the subject of one of Trudeau's most famous quotations: "The state has no business in the bedrooms of the nation."
When he introduced the bill in 1967, Trudeau was Minister of Justice in the government of Prime Minister Lester Pearson. In 1968, Pearson retired and Trudeau succeeded him as prime minister. The bill did not pass before the 1968 election, but was re-introduced by John Turner, Minister of Justice in the Trudeau government. Parliament passed the bill in 1969.Criminal Law Amendment Act, 1968–69, SC 1968-69, c. 38. In the 1970 federal statute revision, the provision was re-numbered as s. 251 of the Criminal Code.Criminal Code, RSC 1970, c. C-34, s. 251.
Badgley report In 1975, a Committee on the Operation of the Abortion Law was appointed "to conduct a study to determine whether the procedure provided in the Criminal Code for obtaining therapeutic abortions [was] operating equitably across Canada", and to make recommendations "on the operation of this law rather than recommendations on the underlying policy". The Committee, known as the Badgley Committee after its Chair, Dr. Robin F. Badgley, reported in January 1977. It found, quite simply, that "the procedures set out for the operation of Abortion Law are not working equitably across Canada". In large part, this was because the intent of the law was neither clear nor agreed upon. Access to abortion as set out in the Criminal Code was not available for many women due to variations in distribution of hospitals and doctors, and in whether Therapeutic Abortion Committees were set up and in doctors' interpretations of "health" for women, ages of consent, and parental notification requirements. The report recommended better family planning to reduce the number of unwanted pregnancies, but their main conclusion was that abortion services were not being delivered as required.
Difficulties in access before decriminalization By 1982, there were 66,319 legal abortions in Canada."Abortions more difficult to obtain, groups say Women must travel, borrow for procedure." Ann Rauhala. The Globe and Mail. Toronto, Ont.: January 30, 1987. pg. A.1 Interpretation of the 1969 law varied widely between doctors and hospitals, leading to uneven access. The standard was the physical or mental well-being of the woman, to be decided by a hospital's Therapeutic Abortion Committee. However, there was no requirement for a hospital to have a TAC to evaluate women. Only about one-third of hospitals had one. Some committees took a liberal stance and allowed most requests, while others blocked almost all requests. Access to legal abortions was easy in major metropolitan areas, but much harder outside large cities. In the province of Prince Edward Island, the lone Therapeutic Abortion Committee shut down, and there were no legal abortions in the province after 1982."Abortion access widely varies across Canada." Joan Bryden. The Ottawa Citizen. January 30, 1988. pg. B.6 The Therapeutic Abortion Committees often took days or weeks to make their decisions, pushing a pregnancy further along than it would have been otherwise. The women were not seen by the committee, and had no right to appeal a decision. Advocates for abortion rights believed that the choice should be made by the woman, rather than a panel of doctors."Continue clinic abortions despite law, group urges." The Globe and Mail. March 17, 1982. pg. P.8
Because of the lack of facilities in smaller provinces and rural areas, women were often forced to travel to major cities at their own expense. In Newfoundland, there was only a single gynaecologist who performed abortions. Many women had to buy expensive plane tickets to Toronto or Montreal to get an abortion. Other women chose to travel to the United States, where abortions became available at many private clinics after the Roe v. Wade decision in 1973. In 1982, 4,311 Canadian women travelled to the United States for an abortion.
Constitutional challenges to the abortion law