Mélanie Cantin is a JURIST Staff Correspondent in Ottawa, and a 1L at the University of Ottawa.
A bill to codify abortion rights was defeated Wednesday in the United States Senate. This rushed, desperate attempt came in the aftermath of a draft US Supreme Court decision leaked earlier this month that would overturn the seminal case of Roe v Wade (1973). Roe recognized abortion as a constitutional right in the US. The leak and the threat of a Roe reversal has prompted demonstrations both for and against the decision all over the world, including Canada. As a student fascinated by American law, I can’t help but join in on the conversations comparing Canada to its southern neighbour in this particular respect.
The key abortion case in Canada is R v Morgentaler (1988) which based itself on very different legal principles from Roe and which never actually declared a constitutional right to abortion. This often comes as a surprise to many Canadians, as we have the tendency to see ourselves and our country as being more “liberal” or “progressive” than the US.
In Morgentaler, the Supreme Court of Canada ruled that criminalizing abortions performed at nonaccredited hospitals without the approval of a Therapeutic Abortion Committee constituted a violation of section 7 of the Canadian Charter of Rights and Freedoms. A 5-2 majority found that the provision of the Criminal Code that outlined these rules unjustifiably violated the “security of the person” aspect of section 7. Four different judges penned reasons in Morgentaler, three of them in favor of finding the Code provisions unconstitutional.
The reasons most often discussed are the ones written by Chief Justice Brian Dickson and Justice Bertha Wilson. The former famously wrote the following: “Forcing a woman, by threat of criminal sanction, to carry a foetus 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.” (pp. 56-57).
Wilson J. went a step further in her reasons, finding that the Code provisions in question breached the security of the person and the liberty aspects of section 7. She stated: “[T]he right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives. The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does.” (p. 171)
With such strong words from a majority of the court, it is not surprising that many Canadians erroneously believe this decision to be akin to Roe. However, Morgentaler struck down the criminal provisions that existed at the time to restrict abortion without recognizing it as a constitutional right.
The reason the abortion debate seems perhaps a bit more muted in the Canadian context is not because abortion rights are necessarily more expansive here than in the US, but rather because we have not passed any criminal laws surrounding abortion in many years. The last attempt was in 1991 by the Conservative government of Brian Mulroney, whose proposed legislation to recriminalize abortion unless it was done by or under the direction of a physician who considered that the woman’s life or health threatened failed to get through the Senate. No criminal laws regarding abortion have been passed since.
For most Canadians, then, Morgentaler had largely closed the abortion debate. Parliament was unable to respond in the aftermath of the decision, so abortion began to feel like it had become a settled issue. Many politicians still view it that way, even those whom we might consider most likely to disagree with it. For instance, in a leadership debate for the federal Conservative party earlier this week, all the candidates except one stated explicitly that they were either pro-choice themselves and/or that they would not introduce legislation that would “re-open the debate” in Canada if they became Prime Minister.
However, it is crucial for Canadians not to be lulled into a false sense of security. What will happen in the US if Roe is overturned is not impossible here in Canada. Indeed, during the leadership debate, when candidate Leslyn Lewis was the only one to state that she was pro-life, applause rang out in the room where the debate was being held. No such applause had followed the earlier pro-choice or noncommittal statements of the other candidates. At the provincial level, Ontario MPP Sam Oosterhoff has infamously pledged to make abortion “unthinkable in our lifetime.”
It is in no way my intention to fearmonger by pointing these things out, but rather to say that pro-choice Canadians should remain on high alert. Promises from legislators can be empty and well-established jurisprudence can be overturned. Roe felt solid to many Americans, and yet here we are nearly five decades later, seeing it disintegrate despite having been affirmed numerous times. In Canada, we would do well to remember that just because some politicians see abortion as a “closed issue” does not mean that access to it is not at risk.
Indeed, the events surrounding Roe have shown that the Canadian public is still thinking about abortion and that many are looking for politicians willing to address the issue. A strong pro-life movement persists in Canada despite a vast majority of the population identifying as being pro-choice.
I witnessed this firsthand yesterday when I attended the Campaign Life Coalition’s (CLC) March for Life on Parliament Hill, where pro-life protesters gathered in their opposition to abortion.
“I’m here to fight for babies, for their rights,” said Caroline, a pro-life protester I interviewed. “I would like to see abortion banned completely [in Canada]. Now, I know people will say ‘what about the rape case?’ Even in a rape case, it’s not the child’s fault. They deserve a life.”
Finally from #Ottawa this afternoon, @JURISTnews Canada staff correspondent Mélanie Cantin of @uocommonlaw interviews a #ProLife supporter on Parliament Hill as Canadian anti-abortion activists rally in the wake of what may be a pending reversal of #RoeVWade in the US. pic.twitter.com/kcuxK7myXi
— JURIST (@JURISTnews) May 12, 2022
Nonetheless, a sizeable pro-choice counter-protest gathered across the street with signs of their own and even a couple of costumes inspired by “The Handmaid’s Tale” novel by Margaret Atwood. They eventually made their way onto Parliament Hill itself to a designated area monitored by police. Notably, despite having a microphone and speakers at their disposal, the pro-lifers were largely drowned out by the bilingual “My body, my choice! Mon corps, mon choix!” shouts of the nearby pro-choicers.
#Prochoice counter-protesters chant on #Ottawa's Parliament Hill earlier this afternoon in this clip from @uocommonlaw student Mélanie Cantin, covering today's competing pro-life and pro-choice rallies on the Hill for @JURISTnews. pic.twitter.com/Y6sJGnDcqs
— JURIST (@JURISTnews) May 12, 2022
“I just got so tired of seeing all the lies by the anti-choice crowd,” a pro-choice counter-protester (who wished to remain anonymous) told me. “They impose religion on other people. They’re free to hold that belief, but not to impose it on others. […] Accessibility [of abortion services] is key.”