Why Roe v. Canada’s Wade did not enshrine abortion as a right

A leaked draft of a U.S. Supreme Court opinion suggesting judges could strike down the landmark abortion case Roe v. Wade urged Prime Minister Justin Trudeau to assure Canadian women that their rights are well protected.

“Every woman in Canada has the right to a safe and legal abortion,” he tweeted on Tuesday, a day after the document was first published. posted by Politics.

And while there is no law prohibiting women in Canada from having an abortion, neither is it considered a right enshrined in the Charter of Rights and Freedoms, as it has been in the US Constitution since the decision of their highest court in 1973.

“That’s going too far,” Bernard Dickens, professor emeritus of health law and policy at the University of Toronto, said of Trudeau’s use of the word “law.”

No constitutional right

That’s because, technically speaking, no Supreme Court in Canada has ever said in a majority decision that a woman has a constitutional right to an abortion, said University of Ottawa law professor Daphne Gilbert. specializing in criminal and constitutional law.

The Abandonment of Roe c. Wade would mean that when it comes to abortion, Canada and the United States would be prima facie similar – in that neither country would have a Supreme Court case enshrining the right to abortion .

But Gilbert said the case law regarding Canada’s charter cases “has evolved so much” over the years, that if the issue of abortion were taken up by the highest court, “it would be impossible for me to imagine that they say there is no right”.

In the landmark decision R. v. Morgentaler, Canada’s highest court has ruled that section 251 of the Criminal Code is unfair and violates section 7 of the Charter, which guarantees the right to life, liberty and security of nobody. The 5-2 ruling was written by Chief Justice Brian Dickson. (Michael Bedford)

Canada’s Leading Abortion Rights Cause Is the 1988 Story Decision R.v. Morgentaler.

But this case was not about whether abortion should be a guaranteed right; rather, it focused on a narrow aspect of the procedure – and that aspect was ruled unconstitutional.

At the time, the Criminal Code of Canada prohibited women from having an abortion unless they were able to obtain approval for the procedure from a committee of physicians.

“Intensive process”

“It was often a very time-consuming process and also quite a painful process. You were sometimes the subject of interviews and questions about why you were having an abortion,” said Roxanne Mykitiuk, professor of human rights. Disabilities and Bioethics at York. University Osgoode Hall.

The approval process at the time was also inconsistent across the country, Gilbert noted, with different approaches taken in different regions.

“You can have a woman in Alberta criminalized and then a woman in Toronto have a free abortion because she just lived in Toronto,” she said.

In a 5-2 decision, written by Chief Justice Brian Dickson, the court ruled that section 251 of the Criminal Code was unfair and violated section 7 of the Charter, which guarantees the right to life. , liberty and security of the person. nobody.

“Forcing a woman, under threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference in a woman’s body. and therefore a breach of security of the person,” Dickson said. wrote.

A concurrent decision, written by Justice Bertha Wilson, found that Section 7, along with other parts of the Charter of Rights and Freedoms, affirms a woman’s right to an abortion. (Michael Bedford)

A concurrent decision, written by Judge Bertha Wilson – the court’s only woman – found that Section 7, along with other parts of the charter, affirmed a woman’s right to an abortion.

But the court as a whole did not rule on whether abortion should be a guaranteed right.

“It didn’t really establish a right to abortion,” Bernard Dickens said. “It just removed the criminal sanction.”

But in his decision, Dickson left open the possibility that another type of law could withstand a Charter challenge, Gilbert said.

Brian Mulroney’s Progressive Conservative government introduced an abortion bill that passed the House of Commons, but was defeated in the Senate in 1991. Since then, no government has attempted to introduce similar legislation, which means that Canada has no laws governing abortion. .

This means, in theory, that a party could try to pass a new bill restricting abortion.

The question certainly arises during federal election campaigns. Liberals promise to protect abortion rights and accuse conservatives of posing a threat, while conservative leaders say the issue will not be reopened.

On Tuesday, for example, Interim Conservative Leader Candice Bergen said “abortion access was unrestricted under Prime Minister Stephen Harper, and the Conservative Party will not introduce legislation or reopen the abortion debate.

But since 1988, subsequent court decisions, unrelated to the abortion issue, have supported the idea that abortion is a guaranteed right, Gilbert said.

“Transpose it to Abortion”

For example, she pointed to the court’s decision on medical assistance in dying: “You could almost transpose it to abortion”.

“The things they talk about – about the importance of decision-making, control, bodily autonomy, your right to choose how you live your life – if the issue had been abortion, it would have been exactly the same,” she said.

So I think section 7 has evolved now to a point where if it was presented to the court, they would say, yes, there is a constitutional right to have an abortion.”

Protesters rallied in support of abortion rights in New York on Tuesday, the day after a draft opinion was leaked suggesting the US Supreme Court may be on the verge of overturning the landmark 1973 Roe v. Wade case that legalized abortion in the United States. (Jason DeCrow/Associated Press)

And any federal government that attempts to regulate abortion through the Criminal Code could face interference from the provinces, which could argue that it is a health care issue that Ottawa does not care about. has no skills.

And, Dickens notes, before 1988, Canadian women living near the US border sometimes traveled to the United States for abortions.

“It could be that if the [U.S.] The Supreme Court consolidates the draft judgment, there will be people coming from the United States to Canada, ”he said.