Reintroduction of Canadian Abortion Laws into the Criminal Justice Code

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The topic of abortion has always been extremely controversial due to its high standing in spheres of morality, politics and health. Often, this debate is centered around the extent to which the right to one’s body supersedes the life of a human being and when that life begins. Internationally, abortion law has varied throughout history with most countries having it completely criminalized and progressively moving toward decriminalizing it partially or entirely. In Canada, abortion laws have been entirely decriminalized since 1988 after the influential R v. Morgentaler Supreme Court of Canada case. While this absence of direct federal law ensures greater freedom for women, it also brings consequences that have transformed an attempt to decrease aversive effects into a situation which may breed it. While nothing can be penalized, and so no act can be considered crime, this idea has hallmarks consistent with General Strain Theory. These adverse consequences can be efficiently reduced with the reintroduction of abortion laws back under the penal code due to the benefits that recriminalization provides. Therefore, through means of modifying current positions of regulation while still maintaining individual safety, recriminalization of abortion laws can mediate strain inadvertently brought on through decriminalization. This paper will investigate how this is done on the political, individual and societal level.

Policy Background

The Canadian law on abortion prior to its total decriminalization was established in 1969. It stated that under Section 251 of the Criminal Justice Code, a woman could only get an abortion if that pregnancy would severely risk her life or health and a board, called a therapeutic abortion committee (TAC), approved it. This policy was continual, however, was not equally distributed across the country, with some provinces still not allowing abortion altogether (Abortion Rights Coalition of Canada 2017). The law was challenged in 1988 in the Supreme Court of Canada in the case of R v. Morgentaler which investigated the charges against Dr. Morgentaler for violating this section of the penal code by performing abortions for women without TAC approval. Ultimately, it was concluded that the abortion law under section 251 directly violated section 7 of the Charter of Rights and Freedoms, which ensured an individual’s right to life, liberty and security of person. The section was thereby deemed unconstitutional and abortion law was decriminalized in Canada (Supreme Court of Canada 1988). Since then, there was no recriminalization of abortion in Canada, leading to no definitive law on the federal level, and making Canada the only country to decriminalize abortion entirely. Currently, abortion is treated like any other medical procedure under the Health Act and all regulation imposed is under provincial levels (Berer 2000). Theoretically, this means that a woman can get an abortion at any point in time during her pregnancy, from point of conception until she gives birth, at which point they become a human being. After this point, killing the child is considered homicide under Section 223 of the penal code (Government of Canada 1985).

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Policy Analysis

Political Level: The Issue with Accessibility and Regulation

The absence of an official federal law on abortion means a significant lack of regulation which leads to issues of accessibility causing strain on pregnant women. The primary issue in this case is that without a direct federal precedent, all the rules and regulations surrounding abortion are left to the provincial leaders. This means that, short of criminalizing it, the provinces have total control of how abortion is handled in their respective area. Provincial governments that do not agree with the decriminalization of abortion have, therefore, functionally recriminalized it by restricting, or severely limiting access to clinics (Abedi 2019). This has become a particular widespread issue in rural areas where access is greatly limited but has also affected entire provinces. New Brunswick actively defies the Health Act by not providing funding for abortions outside of hospitals (Action Canada for Sexual Health & Rights 2019), whereas Prince Edward Island only agreed to establish a clinic that is provincially owned in 2016 which still underperforms (Cummins 2019). This situation produces an extreme amount of strain on the women that are trying to have an abortion as not only do they have to travel long distances to get one, but it is not readily accepted by their province. In addition, beyond a provincial scale, later term abortions are even less accessible with most women needing to travel to the United States as those with the skills needed to perform these abortions are rare (Yourex-West 2019). These factors subsequently introduce more strain on the individual in various aspects, including financial, mental, health strains. Further, this could lead to unsafe abortions techniques for those women who cannot afford means. Thus, the reintroduction of abortion into the Criminal Justice Code would force abortion regulation allowing federal provisions on accessibility of clinics and workers. This would subsequently reduce the great strain currently being imposed by the absence of a law preventing unsafe abortions and right abuse. This same premise can be seen when looking at the issue from an individual’s emotional standpoint.

Individual Level: Tackling the Emotional Toll on the Woman

Abortion is unquestionably a very emotional process for the women who choose to engage in it and has been linked to the increase of many mental health disorders. Therefore, providing a means of checks and balances can be viewed as a way to reduce strain on the individual. A study investigating the association between abortion and mental health disorders, found that those women who had an abortion at least once had higher chance of developing any type of substance use disorder, as well as any mental disorder. These figures were quite significant with 48.8% developing major depression, 49.5% becoming drug dependent and 23.1% attempting suicide after abortion (Mota, Burnett and Sareen 2010). This is consistent with the known phenomenon of post-abortal guilt which Schur (1995) attributes to the loss of motherhood due to societal based importance of this role. In placing abortion under the penal code, it is possible to reduce this emotional toll in a way that is currently not being addressed, if a carefully designed method in which regulation and freedom is balanced. In addition, this would introduce a system where checkpoints must be passed that may additionally prepare a woman for the process she would undergo or potentially change her course of action. This would be beneficial when looking at the 10% of women who undergo abortion after the first trimester. While most of these cases occur due to medical reasons, some do occur due to denial of pregnancy, being not aware of pregnancy, changing their mind etc (Berer 2000). In this situation, introducing a criminally enforceable abortion law that enforces checks and balances could aid in the mitigation of strain that the act of abortion is seemingly associated with. In this manner, strain associated with complete criminalization, such as negative self esteem and high anxiety (American Psychological Association n.d.), could be avoided as well as lowering the incidence of similar effects with complete decriminalization. This checkpoint system can also be beneficial to reducing adverse conditions on the general public sphere.

Societal Level: The Dissatisfaction with Current Conditions

In the current state of absence of an abortion law in Canada, it appears that most citizens, which often get drowned out by the more extreme points of view, disagree with how the law is being handled presently. According to a recent poll on abortion laws, 50% of Canadians believe that some sort of regulation should be in place for abortion. Further, 70% believe it should be illegal in the last three months of pregnancy. The reason for this is seemingly because a child could survive past 20-22 weeks of gestation if born prematurely (Kirkey 2020). This point of view is in line with the Right to Life perspective where someone should be given a chance of survival if they meet the basic requirement for survival, as described by Nagan (1972). This, not only, shockingly represents a large majority of the country’s population that the government is not paying attention to but also demonstrates a belief toward keeping aspects of free abortion while incorporating alternative means into the system. This point is further emphasized by the presence of alternative means which can result in happy life options for children like adoption, which, currently, is not the top choice for pregnant women with 149 abortions to 1 adoption. However, adoption can still maintain the wellbeing of a child, as well as wellbeing of the birthmother, especially with open adoptions (American Adoptions Inc. n.d.). Choosing alternative means in this case, would not only satisfy majority opinion but also contribute to reduced emotional strain on the mother as previously described. Therefore, introducing regulation on abortion law through recriminalization would satisfy public opinion, reduce strain on the middle group of individuals through compromise, as well as benefit the mother and child.

Policy Recommendations

A proposed policy that would resolve all the above issues would be one that keeps aspects of the freedom that are currently in place with the imposition of regulations on later term abortions. A potential example of this would be to introduce a policy in the criminal code that prevents general access to abortion past 20-22 weeks, up until which they can get an abortion for any reason. After this, there would need to be a board clearance, that would be free, that would allow abortion if they decided it was appropriate for the given circumstances. If there would be a doctor that would perform abortion without clearance past this date then they would be punishable by law, such as fined or jailed. In addition, potentially any woman who would skip out on this process could be fined. This policy takes inspiration from Sweden, whose policy is similar to this one, heavily backed by the population, and is able to introduce a policy that doesn’t directly impose on women. In Sweden, the limit for abortion is 18 weeks before which a woman can do so at request and after which a committee must allow for it providing an “enabling policy” (Berer 2000). However, after 18-22 weeks, abortion is fully illegal and a board no longer has authorizing power because the fetus would be viable outside the mother, the exact reason Canadians see an issue with the current policy in Canada (Edwards 2018). The proposed policy recommendation would ensure extra-precaution and access to alternative means that the Canadians desire, while not infringing on the right for a woman to decide what happens to her body. In addition, this recriminalized policy would ensure widespread accessibility and the reduction of strain and unsafe abortions. It would also not be drastic enough, as it does not propose an illegal cut off limit, that it would cause a surge in crime rate or cause additional problems, as seen with Poland’s abortion laws that only allow abortion in rape, incest or health risk but is usually not provided due to strict Catholic views (Brethour 2019).

Feasibility and Fundability

In terms of the likelihood that this policy could actually be enacted and would serve to improve the situation present from the absence of a direct Canadian abortion law, there are minor issues that could be found. Specifically, since there is an aspect of criminalization that was not previously present, there could potentially an increase in unsafe abortions for those that believe strongly in getting an abortion but who have not received clearance or simply do not want to go through the process. This is an aspect that should heavily be considered due to the implications on human life. However, it is the hopes that increasing national regulation would counteract this increase by providing accessibility for those who currently do not have it and resort to unsafe abortions. Another issue could be that which pertains to the Donohue and Levitt hypothesis which states that a decrease in accessibility to abortion, usually through criminalization, increases crime rate due to the fact that those children who were not aborted became criminals. This is seemingly because there was imposed strain from the mentality that they were or are still unwanted if they were adopted or were kept with the mother. This trend has found to not be applicable to Canada and received a lot of criticism (Kang 2013). However, it cannot be ignored that this trend may be introduced along with an increase in strain inadvertently. This being said, the policy does not set define borders for after which point abortion is completely illegal; therefore, it can be possible that this observation may be entirely avoided.


The decriminalization of Canadian abortion laws in 1988 has inadvertently produced regulatory, emotional and public burdens on the citizens of Canada. This produced strain could be efficiently reduced with the introduction of a policy under the Canadian Criminal Justice Code that would essentially force this effect’s removal through implementing widespread accessibility, mediating mental health consequences as well as being in favour of public interest. A proposed version of this law would be one that allows on request abortion up until 18-22 weeks, after which a committee would be needed and a fine could be imposed if regulations are not followed. This takes inspiration from more liberal abortion law countries, such as Sweden. While there could be important issues regarding increases in unsafe abortions or crime rates as proposed by the Donohue-Levitt hypothesis, this policy would markedly balance women’s right to their bodies and the right to life perspective. The law should work to provide equal access and rights to every being in that country.


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