Dr. Morgentaler Case Examples

One example of the Charter being a double edged sword is that, in practice, it serves to both give and take away rights. This is manifested in the issue of abortion. In the landmark case of Morgentaler, the Supreme Court of Canada used Charter provisions to strike down section 251 of the Criminal Code, which, at the time, “made it a crime to perform or have an abortion at all stages of pregnancy” (Martin, 2002, p. 336). In 1988, six years after the Charter came into effect, Dr. Morgentaler challenged section 251 on the basis of infringing a woman’s Charter right to security of the person by violating “women’s physical integrity and psychological well-being” (Martin, 2002, p. 336). The Charter right to liberty was also used to strike down this law, because it “took a personal choice away from a woman” (Martin, 2002, p. 337).
…show more content…

342), as well as taking a step towards better meeting women’s material needs and advancing women’s rights to life, liberty, and security of the person (Martin, 2002, p. 340).] Here, the Charter was used to give women more rights to their own bodies. However, from a naturalism perspective, these laws would not have been struck down due to the “immoral” termination of a fetus, a concept grounded in unchanging higher morality. The Charter in the issue of abortion serves to both advance the rights of women, while at the same time taking away the rights of an unborn fetus. It becomes the main challenge of the courts to balance moral issues against advancing fundamental rights, and, as there is a link between law and morality, the Charter serves to benefit and harm both options depending on the