Her Majesty the Queen v. Morgentaler (Morgentaler III)

Dr. Henry Morgentaler (defendant) intended to open an abortion clinic in the Canadian province of Nova Scotia. In response, the local government of Nova Scotia passed the Medical Services Act (the act). The act provided that several medical procedures, including abortion, could only be performed in a hospital. The text of the act was identical in many areas to the federal criminal code outlawing abortion that the Canada Supreme Court had declared invalid several years earlier as violating the Canadian Charter’s guarantee to a woman of the security of her person, even though that criminal code had been a valid exercise of the federal legislature’s criminal powers. The act’s legislative history, furthermore, revealed that Nova Scotia’s objective in passing the law was to stop abortion in Nova Scotia as opposed to just regulating it. Dr. Morgentaler opened his clinic, and the province of Nova Scotia (plaintiff) charged him with violating the act. Dr. Morgentaler argued the act was unconstitutional as being outside the authority of the Nova Scotia legislature because the act fell within an area reserved for the exclusive criminal authority of the federal legislature. Nova Scotia argued that the act was a valid exercise of its power to regulate healthcare. The trial court agreed with Dr. Morgentaler and declared the act invalid. The Nova Scotia Court of Appeal upheld this ruling, and Nova Scotia sought review in the Canada Supreme Court.