Via The Canadian Encyclopedia

Mika Sauvageau

Copy Editor

On Thursday, October 9th, Premier François Legault unveiled a draft for a provincial constitution which would operate under the existing Canadian Constitution. It aims to define Québec’s national identity and reinforces laws adopted since 2018 under the Coalition Avenir Québec government, which established Québec as a secular, French-speaking province. While the constitution has sparked significant debate over its emphasis on monoculturalism, its third cornerstone — gender equality — has received far less attention.

Article 29 of the proposed legislation states: “The State protects the freedom of women to have recourse to a voluntary interruption of pregnancy.” While the proposition seems benevolent at first glance, a closer look reveals a flawed promise; this measure may weaken, rather than strengthen, women’s rights.

Abortion is currently protected under Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person. This has been the case since the Supreme Court struck down Section 251 of the Criminal Code in 1988 (R. v. Morgentaler). R. v. Morgentler was a case led by Dr. Henry Morgentaler. His path to the 1988 Supreme Court decision was shaped by decades of civil disobedience, legal battles, and a shifting national conversation on reproductive rights.

In the 1960s, as a family doctor in Montreal, Morgentaler began providing abortions despite the procedure being criminalized under Section 251 of the Criminal Code. He argued that restrictive laws forced women into unsafe, illegal abortions. In 1969, Parliament introduced limited legal abortion access through hospital-based Therapeutic Abortion Committees, but the system was uneven and often inaccessible, which is something Morgentaler believed failed to protect women’s health.

Defying the law, he opened Canada’s first independent abortion clinic in 1973, leading to multiple arrests and high-profile jury trials. Juries repeatedly acquitted him, reflecting changing public attitudes, but appellate courts overturned some acquittals, and he served jail time. His continued activism expanded to other provinces, each opening triggering new criminal charges.

The pivotal case came in 1983, when Morgentaler, Dr. Leslie Smoling, and Dr. Robert Scott opened a clinic in Toronto. Charged again under Section 251, they argued that the law violated the Charter of Rights and Freedoms, specifically women’s right to security of the person. This Toronto case ultimately reached the Supreme Court, resulting in the 1988 R. v. Morgentaler decision that struck down Canada’s abortion law.

As a result, abortion is not regulated by any specific statute; it is treated like any other medical procedure. As Christiane Pelchat, lawyer and doctoral student in law at the University of Sherbrooke, explains in her article “Encore une atteinte au droit des femmes,” abortion in Québec is recognized as a standard healthcare service, comparable to procedures such as knee surgery. However, article 29 singles out abortion as an exceptional medical service, which destabilizes long-standing protections grounded in the Charter of Rights and Freedoms. This risks stigmatizing the women who seek it and creates an opening for amendments that could restrict abortion access in the future. By introducing Article 29, however, Québec would provide a clear legal platform on which such challenges could be mounted.

“The absence of specific legislation has, until now, meant that opponents of abortion rights have no legal text to challenge, resulting in a robust and stable framework for protecting access.”

Unfortunately, the overturning of Roe v. Wade in the United States serves as a stark reminder that long-standing constitutional protections are vulnerable to political shifts and judicial reinterpretation. For these reasons, women’s reproductive rights are currently safer under the existing framework than they would be under the proposed constitutional model.If it is approved, a report from Info Québec says that the government plans for the constitution to come into force symbolically on June 24, Québec’s national holiday.