No right to health, no right to abortion: the Charter gaps undermining abortion access in Canada

Abstract

Abortion is widely recognized under international human rights law as essential to rights to life, liberty, security, health, autonomy, equality, and freedom from discrimination. Despite its legal status in Canada following the Supreme Court’s decision in R. v. Morgentaler, no constitutional right guarantees access to abortion services, leaving accessibility contingent on provincial policy, local health systems, and political will. This legal gap produces uneven access that disproportionately affects marginalized populations, including Indigenous women, disabled women, migrants, low-income individuals, and those living in rural, remote, or northern regions. Drawing on Supreme Court jurisprudence, including Morgentaler, Gosselin v. Quebec, Chaoulli v. Quebec, and Eldridge v. British Columbia, this paper demonstrates that the Canadian Charter of Rights and Freedoms primarily protects abortion as a negative liberty, shielding individuals from state interference without imposing affirmative obligations on governments to provide equitable access. The analysis examines the structural, geographic, and systemic barriers created by provincial discretion, provider limitations, institutional refusals, and stigma, situating Canada within international human rights frameworks articulated by treaty bodies such as CEDAW and CESCR, which emphasize positive state obligations to ensure availability, accessibility, acceptability, and quality of reproductive health services. The central argument contends that Canada’s negative-rights framework leaves abortion precarious, legally permissible but inconsistently realized in practice, and vulnerable to political or administrative shifts. The paper concludes that operationalizing a rights-based approach, through the reinterpretation of sections 7 and 15 of the Charter, federal legislation, and provincial policy reforms, could address systemic inequities, expand access, regulate conscientious objection, and mitigate barriers for marginalized populations. Aligning domestic law with international human rights standards would enhance reproductive autonomy, promote substantive equality, and ensure that abortion is recognized not merely as a permitted service but as a fundamental, actionable human right.