Why Canadians should care about the leaked SCOTUS opinion overturning Roe v. Wade

In a very practical way, much of our country has the same lack of access to abortion services that has been accomplished in various U.S. states via criminal law. Here in Canada, we call it provincial jurisdiction over health care, writes Kerri A. Froc.

Can we be so sure that our law is immune to the same reactionary, alt-right influences?

Demonstrators protest outside of the U.S. Supreme Court in Washington on Tuesday, May 3. A draft opinion suggests the court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide. (Alex Brandon/The Associated Press)

This column is an opinion by Kerri A. Froc, an associate professor in the Faculty of Law at the University of New Brunswick. For more information about CBC's Opinion section, please see the FAQ.

The U.S. Supreme Court's draft opinion on Roe v. Wade, written by Justice Samuel Alito, would overturn a women's right to abortion in American law and essentially declare it "open season" for states to make any laws restricting abortion, no matter how draconian.

The decision feels personal. I'm sad; I'm outraged; I don't want the sentiments expressed in that opinion to leak into Canadian law. But to stop that from happening, I need you to care.

I could tell you about being with my friend who had an abortion after her birth control failed and she found herself pregnant by a man who was absolutely no good for her. Her life is better because of it. I could tell you about a female relative who told me about her anxious decision about whether to carry an unwanted pregnancy to term in the 1970s, shortly after contraception itself was decriminalized. I could tell you about my own girlhood traumas that made abortion rights relevant to me, so much so that I scraped together $10 in cash to mail to the Canadian Abortion Rights Action League (they sent the 17-year-old me an exceedingly nice, handwritten letter thanking me).

Justice Alito's draft opinion asserts, "An empirical question that is hard for anyone … to assess …[is] the effect of the abortion right … on the lives of women." Has he ever asked any? 

But to you, the question is: why would you need to hear about the traumas of me and my closest to decide that we deserve equality — an equal right to decide the trajectory of our lives, to participate in public life, and to bodily autonomy. Is there anything about my story, which is not in any way special, or the stories of thousands of other women across Canada that could make you care if you didn't before?

Women will always seek abortions

There's a saying attributed to Stalin: "A single death is a tragedy, a million deaths are a statistic." It might be human nature to focus on individual stories, but you should know about the statistics, too. Because the fact is women will always seek out abortions. 

The Guttmacher Institute in 2019 pronounced, "There is no clear link, even indirectly, from new abortion restrictions to clinic closures to decreases in abortion rates." Even in Texas, which enacted a new law with some of the most limited abortion access the country, the law only had a marginal effect on Texan women's abortion rate — they simply ordered pills or went to neighbouring states for abortions. Once this draft decision is finalized, they will likely have much fewer safe options.

For obvious reasons, it's difficult to find reliable historical statistics on how many Canadian women died from abortions prior to 1969, when abortions in Canada were partially decriminalized as long as women complied with the labyrinthine requirements in what was then Section 251 of the Criminal Code. Anecdotally, women advocates from that time say it's in the hundreds, if not thousands. 

The 1977 Badgley Report stated that between 1962-1966 abortion was the leading cause of maternal deaths in Ontario. So, in a world with more limited options but the same demand for abortions, women become desperate and submit to unsafe means to end their pregnancies. They die. 

This alone should demonstrate that the incessant attempts to roll back women's reproductive rights are not about respect for life or about the "state's interest in the fetus." If it were about these things, women would have guaranteed basic income, pay equity and decent childcare so that they could provide for the children they birth. We would make sure women are protected from abuse by their intimate partners, which often becomes more intense after pregnancy. There would be no subtle or not-so-subtle moralizing that unwanted pregnancy is an appropriate punishment for women's imagined moral transgressions.

I have grave concern for what this draft opinion means for American women. 

A much different history

It's true that our Charter of Rights and Freedoms has a much different history than the American Fourteenth Amendment, under which Roe was decided. There are also important textual differences between our charter and the U.S. Bill of Rights. 

We have what U.S. feminists failed to attain federally, our own "equal rights amendment" in the form of the charter's Section 28. The 1988 decision of R. vs. Morgentaler, in which the Supreme Court of Canada decided that women's reproductive autonomy was protected under Section 7's rights to security of the person and liberty, has only grown in esteem in Canadian law. 

Roe stood for nearly 50 years, but its longevity didn't guarantee immortality. Can we be so sure that our law is immune to the same reactionary, alt-right influences that set the stage for Roe's imminent demise?

While courts seldom admit to being swayed by the popularity of a particular issue or legal outcome, their members are human beings that are part of society. Their membership in our society influences the way they decide whether constitutional arguments "make sense," for the better (e.g., the legal evolution of same-sex marriage) or worse. We seem to have grown increasingly comfortable with toxic political polarization settling in our communities (and in our capital). This constitutes one of the biggest threats to women's rights in Canada. 

But there may be one "silver lining" to the anticipated reversal of Roe. It may shake Canadians out of their complacency and make them recognize the fragility of women's rights and the need for constant vigilance. 

What you can do

In a very practical way, much of our country has the same lack of access to abortion services that has been accomplished in various U.S. states via criminal law. Here in Canada, we call it provincial jurisdiction over health care.

Because of provincial health-care policy and funding decisions, surgical abortions are still practically unavailable in many parts of the country. In fact, litigation spearheaded by the Canadian Civil Liberties Association in my province of New Brunswick is underway as we speak. The case challenges the constitutionality of a regulation blocking funding for abortion services outside hospitals. Only three hospitals in the province provide abortions (two are in Moncton), and with the closing of Clinic 554 in Fredericton, no clinic provides abortion services.

Now that you care, what can you do? 

If you do only one thing, contact the Minister of Health, Jean-Yves Duclos, and tell him to get serious about enforcing the Canada Health Act to ensure accessible and comprehensive reproductive health-care services across Canada. That should happen now, not according to some vague or shifting timeline.

If you want to do two things, call my premier, Blaine Higgs, and tell him to respect women's reproductive rights by providing funding for abortion services outside hospitals. Let them and all of our elected officials know the people of Canada care.

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Kerri A. Froc is an associate professor in the Faculty of Law at the University of New Brunswick. She specializes in constitutional law and women’s rights.