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This paper traces the outcome of a Supreme Court case in Canada regarding abortion. The case referred as Morgentaler v. The Queen, this case was adjudicated in 1988 and required the supreme court of Canada to declare the incarceration and the provisions that made abortion illegal unconstitutional. The topic under study reveals details about abortion in Canada and the various legal provisions existing since the famous case of R. v. Morgentaler which introduced new perspective to the debate.

Abortion has diverse facets and the author will outline philosophical, legal and psychological perspectives in analyzing abortion in Canada. Since there exists no legal provision that exists that regulate, legalize or make abortion illegal the paper outlines the possible avenues that interested parties have.  

In this paper the researcher outlines an analysis and arguments on whether this affected the Canadian values or not.

Case arguments and effects

The centre for constitutional studies articulates this case as an important aspect of the current abortion debate in Canada. The case was not just an attempt to open the society to the rights of the women and the unborn baby or fetus but also the role of the government in protecting the rights of the mother if the continuation of the pregnancy posed danger to the health of the mother. While it was argued by the bench that the mother had rights the part of the bench acknowledged this fact and said that it was essentially a case of the women’s and society at large conscience R. v. Morgentaler [1988] 1 S.C.R. 30.

The case was complicated as it would not be easy to apportion the rights of either the unborn fetus or the mother. The other jurisdictions in which this aspect of the rights of the mother and fetus has been examined include the United Kingdom where in the person’s case the right of a woman was upheld through the provision of definition of women as qualified persons just like men and therefore women had the same right as men regarding their bodies, thus, the case declaration that incriminating the doctors was unconstitutional and therefore the court sentence was overturned.

In the modern times the issue or abortion has become centre stage for women rights crusaders arguing that it’s the right of the women to choose whether she wants to carry the pregnancy to the end, on the other hand the church particularly the catholic church has upheld the sanctity of life arguing that the fetus is a human being and therefore abortion amounts to killing. While this is debatable, what is common knowledge is the risk that a woman undergoes during pregnancy and child birth. From a psychological perspective it is worth noting that the psychological turmoil a woman goes through during pregnancy requires women to take a proactive role in abortion discussion.

As at now no legal provisions exist in Canada to govern abortion. However the provisions of the criminal code section 287 has several limitations on the right of women to perform abortion. One of the issues that have been highlighted is the role that medical practitioners have been given through this provision in criminal code of Canada to perform an abortion Criminal Law Amendment Act, 1968-69.

So the provision acknowledges it is sometimes important to perform abortion, this has been highlighted as when the continuation of the pregnancy poses great danger to the health of the mother and hence the need to safeguard the mother. The society therefore needs to examine the conscience regarding abortion.

From the above introduction to the pertinent issues regarding the legislation and court rulings in Canada it is on this basis that the author acknowledges that abortion affects the Canadian values. The abortion discussion has gained prominence as other reproductive issues have but it has been contravention, and this is illustrated by the fact that not a common stand or set of laws has been agreed to date. The proponents of abortion have argued that if the fetus poses health risk to the mother then it is necessary to do abortion, this is against the historical values that individuals attached to the life which most individuals believe start during conception. This has changed the historical value that families and individuals attach to the babies (Centre for Constitutional Studies, 2010).

In recent years it has become common to not just abort because of health risk but the inability to give the new born baby comfortable life, desire to pursue career, rape and teenage pregnancy. The multiplicity of these factors has been cited as instances where the Canadian values have changed. While teenage pregnancy is not acceptable in most cultures the desire to protect the teenager has been advanced as causing the abortion, that the teenage is not ready to be a mother and therefore will be unable to give the child decent life and in most cases the teenager will not be able to achieve success in life particularly be able to complete studies.

The court decision to quash the sentence imposed upon the doctors was on the premise that section 2 (a), 7, 12 which guaranteed everyone the freedom of conscience and religion.

The previous attempt to challenge the Morgentaler case ruling had not materialized any gain; this still persists today given that there is no clear Law that regulates abortion. Many human rights activists and religious leaders are of the opinion that abortion should not be allowed and should only be done in case of medical requirements.

While no legal framework that regulates abortion in Canada, it is imperative to mention that Canada is a signatory of the international covenant on social, cultural and cultural rights which guarantees the citizens the right to easily access abortion care. However, the provision of this covenant especially regarding availability of medical abortion that is safe has not been approved in Canada and therefore, this does show how the abortion debate has not been realized in Canada Ljung, Danilsson and Lindan, (2009).

On the other hand Arthur (2008) argues that the access to abortion has increased globally, this is the case in Canada. Despite the lack of common law that regulates abortion, there exists increasing cases of abortion in Canada. Of concern is the increased need to monitor the situation and develop appropriate policies that would regulate abortion. It is possible that the values have changed and therefore, medical abortion is long overdue, this is one instance that the author observes dramatic change in Canadian citizens’ values.

While the declaration of the Morgentaler’s incarceration as unconstitutional the court in effect removed some of the limitations that had been placed, to ensure that abortion was not carried out without the approval of the necessary authorities. The availability of abortion services has been advocated as a measure to reduce the physiological effects that mothers go through in case of unwanted pregnancies, rape and other medical conditions.

The main argument that comes out from the case law debate is the unfairness that most laws perpetrate towards women.

Facts

It is imperative to discuss the security, liberty and security of person; it is well articulated in the case Law under study. Thus the process of reviewing the legislation substance is necessary to be determined; through this process it would be possible to establish whether the legislation affects the fundamental rights and freedoms of individuals Morgentaler, et al. v. Her Majesty The Queen, [1988] 1 S.C.R. 30 at 37. From a philosophical perspective the very nature of human being is life is sacred, these groups though have a different perspective on when life begins. But most important is the belief that life begins at conception and thus they have been labeled as prolife group and others believe that life starts at birth. While this may not be of concern to abortion rights activists, the existing Law on abortion fails to legalize abortion, it is thus described as abortion discrimination, in effect meaning that the same Law that guarantees the fundamental rights of freedom of religion and belief still discriminate women who would otherwise have access to abortion services. The main issue that most abortion activists put forward as discrimination was introduced my Criminal Law Amendment Act of 1968 which required abortion to be done with the authorization of committee of doctors.

Given the attention that cases like Emily Stowe in 1879 and Azoulay v. The Queen in 1952 the abortion providers were never committed to jail terms highlighting the place abortion has taken in the society (BackHause, (1991).

The failure of the Law to provide for appropriate guidance on abortion in Canada has caused illegal abortion to be the alternative that those who do not face any health related risk result to. Illegal abortions have increased over the years; of concern is the different interpretation of different laws thus causing uneven access to abortion related information. Thus in effect the above case and the acquittal of the doctors partially eased the rules that controlled abortion in Canada (Wikipedia.org, 2011).

While stating the facts about this case it is important to outline the most important aspects that made this case significant in the human reproduction discussion. The lack of qualified persons to secure abortion when women need to have abortion could be detrimental to the health of the woman. Given the nature of abortion laws in Canada, there is still liberty that interested parties can use to ensure that they are legally protected when securing abortion (Statistics Canada, 2005).

Conclusion

The debate on whether abortion has changed the values in Canadian society has been going one, certainly the values have changed since the case of R. v. Morgentaler [1988] 1 S. C. R. 30.

The citizens have adopted a more open view with regards to abortion. The laws in Canada while they do not expressly allow abortion have remained quite on abortion other than the provisions requiring authorization which was declared unconstitutional.

The values that have been affected most by the changes in case law include family marriage, and child bearing. Most individuals perceive as their right to get reproductive health and their decisions regarding when to bear children as a right guaranteed by the constitution and the covenants that the state has signed with other nations.

Abortion when analyzed from religious perspective shows that there is no common group and almost all religious organizations perceive abortion as illegal and this is underpinned by the religious organizations definition of a life as starting from conception. Philosophical perspective brings out the complicated nature of abortion. There is no common accepted stand by philosophers on abortion and conscience of an individual is regarded as the only issue that discourages or promotes abortion.

Over the years abortion has been legalized in most countries and given globalization with the possibilities of influencing values of Canadian citizens then, legalization or relaxation of law that regulate abortion will eventually occur. While appeal of the Law may not occur the courts will play an important role in ensuring that abortion becomes available to women who want to procure. The overriding reason for securing abortion will mainly be inability to secure better life for would be child, due to rape, teenage pregnancy, absentee fathers and economic conditions.

In conclusion the above mentioned factors all point to one issue that abortion affects the Canadian citizen’s values, more and more women believe that they have the complete freedom to decide their health related issues and abortion is one of them.

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