Why Canada's Roe v. Wade didn't enshrine abortion as a right
Experts say landmark 1988 ruling — R. v. Morgentaler — did not establish abortion as a charter right
A leaked draft of a U.S. Supreme Court opinion suggesting that the justices might overturn the landmark Roe v. Wade abortion case prompted Prime Minister Justin Trudeau to assure Canadian women that their rights are well protected.
"Every woman in Canada has a right to a safe and legal abortion," he tweeted Tuesday, a day after the document was first published by Politico.
And while there are no laws barring women in Canada from having an abortion, it's also not considered a constitutionally protected right under the Charter of Rights and Freedoms, as it has been in the U.S. since their top court's 1973 ruling.
"That's going too far," Bernard Dickens, a professor emeritus of health law and policy at the University of Toronto, said about Trudeau's use of the word "right."
No constitutional right
That's because, technically speaking, no Supreme Court in Canada has ever said in a majority decision that a woman has the constitutional right to an abortion, said Daphne Gilbert, a University of Ottawa law professor who specializes in criminal and constitutional law.
Scrapping Roe v. Wade would mean that, in regards to abortion, Canada and the U.S. would on the surface be similar — in that neither country would have a Supreme Court case enshrining the right to abortion.
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But Gilbert said jurisprudence involving Canada's charter cases "has evolved so much" over the years, that if the question of abortion was taken up by the top court, "it would be impossible for me to imagine that they say there's no right."
Canada's own top abortion rights case is the landmark 1988 R. v. Morgentaler ruling.
But that case was not about whether abortion should be a guaranteed right; it instead focused on a narrow aspect of the procedure — and that aspect was found to be unconstitutional.
Back then, the Criminal Code of Canada banned abortion for women, unless they were able to get approval for the procedure by a committee of doctors.
"It was often a pretty time-intensive process and also a pretty harrowing process. You were subject, sometimes, to interviews and questions about the reason why you were having an abortion," explained Roxanne Mykitiuk, a disability and bioethics law professor at York University's Osgoode Hall.
The approval process at the time was also inconsistent across the country, noted Gilbert, with different approaches taken in different regions.
"You can have a woman criminalized in Alberta, and then a woman in Toronto freely getting an abortion because she just happened to live 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 that it violated Section 7 of the charter, which guarantees the right of life, liberty and the security of the person.
"Forcing a woman, by 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 with a woman's body and thus a violation of security of the person," Dickson wrote.
A concurrent ruling, written by Justice Bertha Wilson — the only female on the court — found that Section 7, along with other parts of the charter, did affirm 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 an abortion right," Bernard Dickens said. "It simply took away the criminal penalty."
But in his decision, Dickson did leave open the possibility that a different kind of law could withstand a charter challenge, Gilbert said.
The Progressive Conservative government of Brian Mulroney introduced a bill taking aim at abortion that passed the House of Commons, but it was defeated in the Senate in 1991. Since then, no government has attempted to introduce similar legislation, meaning Canada has no laws governing abortion.
That means, in theory, a party could attempt to pass a new bill restricting abortion.
The issue certainly comes up during federal election campaigns. The Liberals promise to protect abortion rights and accuse the Conservatives of posing a threat, while Conservative leadership says the issue will not be reopened.
On Tuesday, for example, interim Conservative Leader Candice Bergen stated that "access to abortion was not restricted under Prime Minister Stephen Harper, and the Conservative Party will not introduce legislation or reopen the abortion debate."
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But since 1988, subsequent rulings by the court, not related to the abortion issue, have backed up the idea that abortion is a guaranteed right, Gilbert said.
'Transpose it to abortion'
For example, she pointed to the court's decision about medically assisted dying: "You could almost transpose it to abortion."
"The things that they talk about — about the importance of decision-making, control, bodily autonomy, your right to choose how you live your life — if the question had been abortion, it would have been exactly the same," she said.
"So I think that Section 7 has evolved now to a point where if it was presented to the court, they would say, yes, there's a constitutional right to have an abortion."
And any federal government that tried to regulate abortion through the Criminal Code could run into interference from the provinces, who could argue it's a health-care issue that Ottawa has no jurisdiction over.
And, Dickens notes, before 1988, Canadian women living close to the U.S. border would sometimes travel to the States to have abortions.
"It could be that if the [U.S.] Supreme Court consolidates the draft judgment, it will have people coming from the U.S. to Canada," he said.
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