On June 24, 2022, the Supreme Court of the United States ruled 6-3 to uphold a Mississippi law against abortion beyond 15 weeks after conception except in cases of medical emergencies or severe fetal abnormalities.[1] The case is Dobbs v.Jackson Women’s Health Organization. In upholding the law, the court overruled the famous 1973 precedent of Roe v Wade, in which the Supreme Court had ruled that a constitutional right to privacy protected a woman’s right to have an abortion. Federal laws and the laws of several states concerning abortion were repealed after that decision. Now, this recent Supreme Court decision has left many Canadians speculating what repercussions if any might arise for Canada.
However, concerns over an impact on Canadian law may be premature and without basis in the long run, certainly from within a legal context. For one thing, Canada is a sovereign nation with its own legal system that is distinct from the American and indeed any other legal system in the world. So, a decision of the U.S. Supreme Court has no precedential value here and thus no legal significance. Furthermore, there is no law in Canada impacting in any way a woman’s access to the medically induced termination of her pregnancy. A section of Canada’s Criminal Code that constrained access in limited circumstances was removed after it was declared unconstitutional by the Supreme Court of Canada in 1988. However, the Dobbs decision could gain traction in public opinion and perception, as the decision revisits a debate over abortion, an issue that raises questions of morality, female autonomy, and the limits of governmental power to regulate a fundamental choice that is unique to women.
Before examining the Dobbs case and whether it may influence Canadian law and policy regarding abortion, it is useful to compare and contrast the American and Canadian political and constitutional systems. This is important because not only is there a difference between how responsibility for enacting criminal law is divided between levels of government. The abortion issue has also been discussed and decisions made within different constitutional and philosophical traditions.
Within the American political framework, the individual 50 states that comprise the United States each retains sovereignty to enact criminal laws. In contrast, it is the federal level in Canada with the sole authority to enact criminal laws for the land, although the provinces have the authority over how justice is administered and services provided, to anyone residing within their borders.
Access to abortion in Canada was profoundly changed when the Supreme Court of Canada struck down a section of Canada’s Criminal Code in 1988 with its ruling in R v Morgentaler.[2] The now defunct section, section 251, had required that a woman seeking an abortion first obtain a certificate from a therapeutic abortion approval committee at an accredited or approved hospital. Dr. Henry Morgentaler and two medical colleagues believed that women had an unfettered right to abortions and were performing abortions at their private clinic on women who had not obtained abortion certificates as required by section 251. The doctors had been acquitted at trial, an appeal court allowed the appeal and ordered a new trial, and the Supreme Court of Canada by a majority decision restored the acquittal.
The Supreme Court found that section 251 was unconstitutional. Their analysis involved applying section 7 of the relatively new Charter of Rights and Freedoms; section 7 guarantees “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The court recognized that the physical and bodily integrity of a woman was seriously compromised by forcing her, under threat of criminal sanction, to carry a fetus to term unless she met criteria unrelated to her own priorities and aspirations. Any infringement of the right to life, liberty and security of the person must be in accordance with the principles of fundamental justice. A majority of the court found that the procedures and restrictions stipulated in section 251 failed to comply with such principles.
In contrast, the American legal tradition has seen fit to frame the abortion issue as a privacy matter, rather than an act of autonomy. This was the approach the U.S. Supreme Court took in Roe v Wade. The comparable provision in Roe was a section of the Texas Criminal Code that banned procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life. For the American Supreme Court, their analytical framework was not the threat to the bodily integrity and autonomy of a woman but rather the infringement of a woman’s right to privacy. The 14th Amendment to the United States Constitution may contain language that is quite similar to Canada’s Charter section 7, i.e.,“…nor shall any state deprive any person of life, liberty, or property, without due process of law….” However, the American approach framed a woman’s access to abortion in terms of a right to privacy rather than a concern over her bodily integrity, freedom to choose and thus by logical implication, her autonomy.
Whether by deliberate choice or in accordance with American legal tradition or a combination of the two, the U.S. Supreme Court in Dobbs refrained from considering access to abortion in terms of an act of female autonomy. Indeed, in overturning Roe v Wade, the court expressly said that the American Constitution does not confer any right to abortion and went to great lengths to distance the issue from any broader right of autonomy. Consequently, this current U.S. Supreme Court has clearly signaled that it accords to abortion the revocable status of privilege rather than of right and is content to leave the matter of its regulation, let alone access, to individual states. This invites speculation there will be a motley array of legal regimes south of the Can-Am border, some more liberal regarding access to abortion but most presumably far less so.
This commentary would be incomplete without mentioning how access to abortion varies across Canada. In a post-Morgentaler Canada, Canadian women and girls have a right to access medically induced termination of pregnancy at all stages of pregnancy regardless of the reason. Moreover, this is a publicly funded procedure through the combined workings of the Canada Health Act and the provincial health-care systems. However, for example, females living in isolated, rural areas and northern regions face the practical challenge of travelling to larger urban centres to access services. Then there is the exigent demand of wait times. Another challenge to equitable access could arise were a provincial government, whether because of budgetary challenges or ideological reasons or a combination thereof, restrict provision of services. However, further discussion is beyond the scope of the present commentary and will form the subject matter of a future commentary.
[1] Dobbs v. Jackson Women’s Health Organization, 597 U.S. (2022) https://supreme.justia.com/cases/federal/us/597/19-1392/
[2] R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, <https://canlii.ca/t/1ftjt