How Roe differs from Morgentaler

The extraordinary leaking of a draft decision that suggests the United States Supreme Court is set to overturn Roe v. Wade has prompted questions about whether such a rollback of rights could happen here in Canada. 

But experts say the law on this side of the border is strong enough to withstand an attempt to criminalize abortion again. 

"A lot of what they're addressing in the (draft) decision are things we've addressed and put to bed in Canada," says Kerri Froc, an associate professor of law at the University of New Brunswick and chair of the National Steering Committee for the National Association of Women and the Law. "The constitutional law that would support any challenge to criminalization is quite solid."

Although most people in the field knew this decision was likely coming down, it was still "shocking" to read the judgment, says Joanna Erdman, the MacBain Chair in Health Law and Policy at Dalhousie University. For her, the response worldwide says it all.

"The reaction wasn't just to the coming restrictions on people's access to critical care. The reaction was also to the profound disrespect in the opinion," she says. "The Supreme Court justices show such a lack of respect for people who have and need abortions. The opinion just shows how little the court cares about people."

The draft decision is for a case known as Dobbs v. Jackson Women's Health Organization, which is challenging Mississippi's ban on abortion after 15 weeks. While the draft is authentic, it is not final, but nor is it likely to change. That means the landmark case that legalized abortions in the U.S. will be struck down after nearly 50 years, leading to abortion bans in about half the states.

"Roe was egregiously wrong from the start," Justice Samuel Alito says in the draft, arguing that the right to abortion can't be found anywhere in the text of the U.S. constitution, nor can it be part of the liberty rights protected under the 14th Amendment. 

Justice Alito writes that abortion rights must be "deeply rooted in the Nation's history and traditions" to be fundamental.

"That's U.S. constitutional doctrine," Erdman says. "We have a different doctrine which is the doctrine of the living tree, and we interpret our Charter rights in broad and progressive manner. They are always changing and evolving. We wouldn't look for abortion rights in the text of our constitution." 

The Supreme Court of Canada's landmark decision in R v Morgentaler in 1988 struck down the abortion provision in the Criminal Code for violating a woman's right to security of the person under Section 7 of the Charter. If there were another challenge and the Supreme Court of Canada was to issue an abortion judgment today, Erdman thinks it would be strongly rooted in Charter equality rights under Section 15.

Justice Alito dismisses that abortion is about equality, which he addressed at the beginning of the draft, she says. "But I think it would serve as the foundation of a new Supreme Court judgment here on abortion today because fundamentally, you would recognize the value of that decision – whether to continue or end a pregnancy – in the lives of people, not in the text of the constitution. You'd recognize what it means for someone economically, socially, politically."                                                                                                                         

That's essentially what Justice Bertha Wilson said in her concurring opinion in Morgentaler. She wrote expressly in the name of liberty and asked the fundamental question: Can the state give to another something that the person has the right to decide for themselves? For her, reproductive freedom was at the heart of our democratic political tradition.

"She lined up the right to abortion with the most basic civil and political rights – the right to choose your own religion and philosophy of life, the right to choose how to express yourself, the right to choose where to live, what occupation to pursue," Erdman says. 

"Wilson said if our constitution guarantees us freedom in all those decisions, well, how can it possibly not guarantee this most basic right of reproductive freedom? It was a profound judgment, and even though she didn't write for the majority, in the 30-plus years since, her opinion has come to be the opinion that people cite for Morgentaler."

In his draft, Alito says of Roe and Planned Parenthood v. Casey, a subsequent 1992 decision that upheld the right to abortion, that far from settling the abortion issue, they "enflamed debate and deepened division."

Remarkably, Morgentaler truly did settle the issue, Erdman says.

"We have never had a new abortion law in this country enacted since that time. The right has stood."

If the Supreme Court adopts Alito's decision, the abortion right guaranteed by Roe will be replaced by state power. Again, in contrast, Erdman says Wilson did not return abortion to the state; she returned it to the people as their fundamental right. 

"People who have and need abortions, she said we trust in them. As a consequence, I believe we can trust in that constitutional history and tradition."

Despite this, Froc is concerned about the negative, right-wing cultural influences that have made their way here from the U.S., most recently evident with the occupation of downtown Ottawa, backed by American money. She says this decision will energize people who are hostile to women's rights south of the border, so we will get at least some of that activity here. She expects we'll see more protests, or aggressive behaviour at abortion clinics, or more MPs testing the waters with private member bills in Parliament. 

"Courts aren't supposed to take cultural and social perspectives that much into account, but they do in some circumstances with Charters cases," she says. "So, if there's a cultural change, I do worry about what that might mean, as courts like to never be too far behind or ahead of public opinion."

Erdman, however, is encouraged to see how the leaked decision has galvanized the movement for reproductive rights and justice.

"There's been a move to support the right of every person in Canada to make decisions about their reproductive lives and future," she says. "And probably a stronger articulation and commitment for that guarantee than I have seen in a long time."

She's found it interesting to watch the federal government's reaction and other politicians come and stand behind the firm constitutional foundation in this country. Prime Minister Justin Trudeau has said that access to safe and legal abortions will be protected in Canada, and has asked the health minister and status of women minister to look at the legal framework for abortion services to ensure "that, not just under this government, but under any future government, the rights of women are properly protected." Whether that means new legislation or regulations remains to be seen.

For those who fight for women's rights, the hope is that this might lead to more progressive action towards ensuring the right to accessible and respectful abortion care is the legal standard in Canada.

"I don't worry about legally being able to access abortions in Canada," says Kat Owens, project director for LEAF's Reproductive Justice Project. "What I worry about is factually being able to access abortions in Canada. Access is entirely dependent on where someone lives in the country, as most abortion centres are located in urban areas."

She adds: "What makes me hopeful is that this leaked decision is prompting a conversation in Canada about what access looks like and the need to improve access. It's really important to think about abortion as just one piece of the reproductive puzzle. We want people to be able to have the family that they want to have. That's the direction I'd like to see the conversation move in this country."