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Lessons from Roe and Morgentaler

Decades after the two landmark rulings, it can be exhausting still having to defend abortion access. But it’s as necessary as ever.

Pro-choice protest

January is a reflective month for abortion rights. The United States Supreme Court decided Roe v Wade 47 years ago last week. January 28 marks the 32nd anniversary of the Supreme Court of Canada’s decision in R v Morgentaler.

These are not milestone anniversaries, but this year presents a milestone opportunity. As Ylonda Gault wrote last week in the New York Times, remembering Roe is “critical at this moment in history. It is a call for deliberate action to safeguard the most basic and ordinary right of all: to control your own body.”

The decisions in Roe and Morgentaler are rightly celebrated, this year and every year, for treating abortion access as a constitutional right. But frankly, neither one went far enough to safeguard the right to control one’s own body. In both cases, the courts accepted that the state develops a legitimate interest in what happens to a fetus at some point during a pregnancy. This interest could trump the choice of the pregnant person.

Roe and Morgentaler may be necessary parts of the fight against state interference in reproductive autonomy. But the unfortunate leeway left by Roe and Morgentaler has been arming anti-abortion groups and politicians on both sides of the border ever since the cases were decided.

Some of their efforts could come to a head in 2020. After the devastating attacks on abortion rights in the U.S. in 2019, that’s saying a lot.

In March, the U.S. Supreme Court will hear arguments in June Medical Services v Gee, a case about Louisiana’s requirement for physicians who perform surgical abortions to have admitting privileges at a nearby hospital. The court has been explicitly asked to reconsider, and overturn, Roe (Insert image of Justice Brett Kavanaugh and his fellow conservative judges rubbing their hands together in glee.)

We are far luckier in Canada: while troubling barriers to access exist, abortion is free and legal across the country. This includes medication abortion, for which Health Canada removed the ultrasound requirement last year.

And yet, at least once a week, there’s a teachable moment on abortion rights. Maybe a Conservative leadership candidate says there’s a “legal vacuum on abortion in Canada” (there’s not). Or the Alberta Legislature considers a bill protecting the “conscience rights” of anti-abortion health care providers (the case law shows that the Charter requires prioritizing patient rights).

I often feel like a broken record when I post, write, or talk about abortion access. It is a privilege to be able to speak out (and there are others in my network for whom advocacy work is all-consuming). But feeling like a broken record can get exhausting after a while. (Confession: I found myself binge-watching Cheer when I should have been writing this article.)

The exhaustion factors into other advocacy, as well. I recently gave a presentation on the law of marriage equality at my church, as part of our parish’s deliberation on whether to conduct same-sex marriage ceremonies. (This is now a diocese-by-diocese, parish-by-parish decision, after the Anglican Church of Canada’s governing body voted down a change to the marriage canon last summer.) I was frustrated that I had to stand up and state the obvious: we’ve had same-sex civil marriage across Canada since 2005. The Constitution requires it. Love is love. Why is this even up for discussion?

Then my co-presenter, someone with a long history of advocacy in the 2SLGBTQ+ community, got up. I had expected him to share my frustration, maybe even roll his eyes along with me. Instead, he showed remarkable patience and compassion. He reminded me that education is always valuable. The folks you’re engaging — whether at a small-town Anglican church, or across the far reaches of the internet — aren’t necessarily against what you’re saying. They just might need some time to learn something new, or to unlearn something old.

So, while it might feel exhausting to state the obvious (over and over again), it’s a necessary exhaustion.

The same goes for advocacy on abortion rights. As Gault wrote, “This anniversary of Roe v. Wade isn’t golden or even silver, but it should spur us to redouble our efforts to make access to sexual and reproductive health care a reality for everyone.”

This 32nd anniversary of Morgentaler isn’t gold or silver, either. Nor is it an excuse for complacency. We can take a moment to celebrate these decisions of the past, and still remember that we have a future to fight for.