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R. V. MorgentalerIn the case of Dr. Henry Morgentaler, Dr. Leslie Frank Smoling and Dr. Robert Scott v. Her Majesty The Queen [1988] (1 S.C.R. 30), the Supreme Court of Canada was asked to review the conviction of Dr. Morgentaler (and the others) for performing illegal abortions in violation of the Abortion Act, 1967. The court also examined the 1973 case of Roe v. Wade (410 U.S. 113); but decided that there were different issues than those raised by the United States Supreme Court. (Actually, the decision in Morgentaler is actually much closer in terms of the issues to the decision (also in 1973) of the U.S. Supreme Court in Doe v. Bolton, (410 U.S. 179) than to those in Roe.) The court determined that the statute prohibiting the performance of an abortion except under certain circumstaces violated the Canadian Charter of Rights and Freedoms in that the requirements for a woman to be permitted to obtain an abortion legally (or for a doctor to legally perform one) were in many cases so onerous or effectively impossible that they were "resulting in a failure to comply with the principles of fundamental justice." The court also stated thatI say this because I believe that the decision whether or not to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe, for the reasons I gave in discussing the right to liberty, that in a free and democratic society it must be the conscience of the individual. The law was struck down as unconstitutional and Morgentaler's conviction was overturned. An attempt to pass a new abortion law was defeated in the Senate on a tie vote, leaving Canada without legislation governing abortion. Succeeding governments have avoided the controversial issue. External links
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