Why abortion rights are not under threat in Canada

What if the same thing happened here? After all, abortion rights in Canada, like the United States, are based on a Supreme Court decision. In Ottawa, as in Washington, a new court can refute old precedents.

Posted at 6:00 am

Incidentally, the Americans are 15 years ahead of Canada in this respect. Until 1988, before the Morgentaler ruling, abortion was a crime in Canada and no longer in the United States. Since 1973, the US Supreme Court had ruled Roe v. Wade, which recognizes an absolute right to abortion in the first trimester of pregnancy and limits restrictions on the other two.

Nonetheless, and while we shouldn’t take anything for granted, the risks of such a reversal occurring here are, in my opinion, very small.

The main reason is obviously political. Here, as in the United States, a strong majority supports women’s right to abortion. This majority generally exceeds 75% in Canada, compared to rates that vary from 60% to nearly 70% in the United States. It is therefore practically impossible to win a federal election here in which abortion would be an issue, even a secondary one. Ask former Conservative leader Andrew Scheer. The religious lobby exists, but it’s nowhere near the power it has in the United States, and the subject is taboo even for conservatives.

That means any government is unlikely to put abortion on its legislative agenda. Or even try to “wrap” the Supreme Court so Morgentaler is revisited. Let’s not forget that Stephen Harper appointed seven of the Supreme Court’s nine justices at the same time. It hasn’t changed anything.

Apart from political considerations, the legal context is very different. In the United States, the states have jurisdiction over criminal law. Each of the 50 states has its own criminal code. Some provide for the death penalty, others have abolished it, and still others are content not to use it. Some have decriminalized certain drugs. Others provide for severe penalties in this regard.

The same applies to abortion. In the Mississippi case heard last fall, 26 out of 50 states asked the Supreme Court to rule Roe v. Wade.

If it hadn’t been Mississippi, it would have been Texas. Or Alabama. Etc. In short, there is always a state where the conservative political majority can pass an anti-abortion law that will go all the way to the Supreme Court.

In Canada, even if Saskatchewan has tried hard (say) it has no criminal jurisdiction and therefore cannot fight a new constitutional battle. It can only come from the federal government.

However, for the reasons explained above, no government has felt like it for 34 years.

But suppose a hypothetical Conservative government (both Poilievre and Charest are pro-choice) decides to criminalize abortion again in Canada. What Would the Supreme Court Do?

Here we come to another big difference. The constitution of the two countries. And the legal theory to interpret it.

It is remarkable to see how Roe v. Wade is based on historical evidence. Most of 1973 strives to demonstrate that at the beginning of the XIXand In the 19th century, abortion in the first few months (prior to any noticeable movement of the fetus) was not a criminal offense. It was only after action by the American Medical Association that massive legislation was enacted to ban it entirely in the second half of the 19th century.and Century.

The court at the time concluded that dating back to the dawn of time, abortion was a practice considered benign by the Founding Fathers. A total ban, as happened in almost all US states in 1973, would therefore be a violation of privacy, liberty and equality before the law.

Without anyone commenting on the subject, the US Supreme Court rules that states do not have the right to ban abortion for the first three months; for the second trimester, they can limit it to protect the mother’s health; and once the fetus is “viable,” states can regulate or even ban abortion.

Even then, even pro-choicers criticized some approximate aspects of that decision.

Conservative judge Samuel Alito arrives to settle accounts with the “progressive” judges of 1973 after his opinion leaked Thursday. And he’s having fun. It begins with Roe v. Wade has “poisoned the political culture for 50 years” – which is not entirely untrue…

I stress that Alito’s “judgment” is not final. It is a version for internal use but looks like a definitive text with its extensive annotations and citations. It should be noted that in the Court’s two hundred year history, no Opinion had ever been leaked. This is extremely serious and an investigation is open into the author of this leak – probably someone inside who wants to create an effect of political protest…

But let’s assume it will be the majority verdict because he’s appointed to write the court’s verdict and we know the conservative majority is solid – five or six judges.

Alito therefore qualifies Roe v. Wade of “disgustingly flawed” and “extraordinarily weak” judgment. This will justify this exception, which obliges the Court to follow its own precedents to ensure the stability of the law.

Then Alito rewrites the legal history of abortion in his own way. It shows that while early abortion was not always criminalized, it was not necessarily “allowed”. And the 14and Constitutional amendment guaranteeing equality before the law and on which this “right” to abortion was to be based, passed 1868; At that time, the states had criminalized abortion. It can hardly be said, therefore, that this “right” is written between the lines when the amendment has been adopted by pro-abortion states. This right therefore never existed, not even implicitly, he concludes.

In Supreme Court case, Mississippi bans abortion after 15 weeks.

Judge Alito’s conclusion for the majority: That’s up to the elected officials, as long as the restrictions are reasonable. For him, 15 weeks seems like a reasonable limit. Let each state make its own laws, like all criminal subjects. It’s not about women’s rights, he says, it’s certainly a medical procedure that only applies to women, but nothing can be done about that. He adds that women are free to vote, and they are not deprived of it: they are proportionally more numerous on the electoral rolls.

The 1988 Canadian ruling is very different. He disregards historical developments to find the hidden intent in the Bill of Rights – which was then… six years old.

In essence, the crime of abortion violates a woman’s right to liberty and security, says Judge Bertha Wilson. This crime subjects Canadian women’s reproductive ability to government-imposed rules. He imposes on them a philosophical if not even a religious view. It is therefore also a violation of their freedom of conscience. And that’s why this crime was debunked.

This does not mean that all legislation on the subject is prohibited. The court left open the possibility of limiting that right in the final stages of fetal development — something Ottawa carefully avoided, relying on medical ethics.

Be that as it may, the Morgentaler judgment is more legally sound than Roe v. Wade – although theoretically a government could suspend portions of the Bill of Rights with the clause notwithstanding.

We would be very upset if we were to appoint anti-abortion judges in the current court, such is the issue under the Canadian radar.

Of course, access to local abortion is not easy everywhere in Canada. Here, too, religious groups are politically and socially active.

But there is nothing on the horizon that gives rise to serious fears of an American-style reversal to the right.

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