Regulation of access to contraception or abortion by minors has been a major issue in many jurisdictions over the past decade. This article will investigate the current law in Canada and will enable comparisons to be drawn with the situation in other jurisdictions, particularly those in the United States in light of the United States Supreme Court's recent decision upholding the Hyde Amendment which restricts the use of federal funds for abortions.

Some of the legal issues present are common to both contraception and abortion. However, because abortion is expressly regulated by the Criminal Code of Canada, there are also significant differences. The two major issues are the legality of the procedures themselves and consent. These questions are both separate and related: they are separate because the legality of a medical intervention must be looked at apart from consent, and related because consent is one of the factors upon which legality depends.

In response to the alleged medical malpractice crisis of the mid-1970s, many states enacted remedial legislation requiring that medical malpractice cases be filed and heard by some type of screening mechanism prior to being filed in the trial court. Several challenges to the constitutionality of those statutes were raised, but generally speaking, they were unsuccessful.

The most common challenge was that the statutes impermissibly discriminated against malpractice plaintiffs by requiring them to endure the expense and the time involved in such proceedings, as well as depriving them of their right to jury trial. The appellate courts considering these challenges generally upheld the legislation as an attempt by the legislatures to remedy a perceived crisis. Absent a showing of infringement upon a “fundamental right” or “suspect classification,” the legislation was held to be constitutional as it was reasonably related to the task sought to be accomplished. Such a response was predictable since, in most jurisdictions, there had been a marked increase in the number of malpractice actions filed as well as a marked increase in physicians’ malpractice insurance premiums.

In the “Brother Fox case,” the Appellate Division of the Supreme Court of New York for the Second Department, in a thoughtful and exhaustive opinion, announced several rulings of significance affecting the treatment of the terminally ill. The decision dealt with both competent and incompetent patients, but is especially relevant to more complex problems associated with the incompetent patient.

The court held that a competent terminally ill patient was entitled to refuse medical treatment and, that a competent person might lawfully direct that treatment be withheld should he later become terminally ill and incompetent. The court then declared that these rights were of constitutional dimension, embodied in the constitutional right of privacy, and not based on a mere common law “bodily right of self determination.”

Since the Massachusetts Supreme Judicial Court's opinion in Saikewicz, a great deal of controversy has existed over going to court prior to discontinuing or deciding not to commence medical care for the benefit of an incompetent person; the use of do not resuscitate (DNR) orders; the role of the family in making such decisions; the recognition of “brain death;” and the use of the incompetent's “quality of life” as a basis for making such determinations. Both the legal and medical communities waited expectantly while the Supreme Judicial Court considered the case of Earle N. Spring, with the hope that the court would resolve at least some of these issues. The opinion did clarify a number of important issues, but either did not deal with, or confused, others.