Roe v Morgentaler part 2

(Image: Windsor regional hospital metropolitan campus, credit to Blackburn News)

On June 24, 2022, the ruling became official. In a 6-3 decision (Sotomayor, Kagan and Breyer dissented), they ruled in Dobbs v Jackson that the 1973 landmark decision protecting abortion rights across the United States was unconstitutional, and thus the matter was returned to the states. 

The premise of the decision is essential that a) abortion is not mentioned in the constitution, and b) since it’s such a controversial topic, only the people and their elected representatives can decide on it. This decision has simultaneously given the power to the people and taken it away from them. The power of a woman to decide with her doctor has been taken from her and given to public officials and their voters.  In other words, if you wish to terminate a pregnancy, it’s not simply up to you. Your neighbours must approve of it like a tree in your front yard. Your California neighbours are fine with it; your Mississippi neighbours are not.  

In the wake of Dobbs v Jackson, some states have trigger laws that went into effect the very day the decision was made. Abortion clinics either closed down outright or suspended service, pending legal advice. And in Windsor, two pro-choice protests took place on July 8 and 9.  

But this article isn’t really about the Dobbs v Jackson decision. This is about how the decision compares to abortion law in Canada.
 

To summarize, the probability that Canada ever follows the trajectory of the US in this matter is slim to none. Presently, abortion is legal across the country for all three trimesters, and our own Supreme Court decisions related to abortion have a much stronger constitutional basis than Roe v Wade did.  Under the Canada Health Act, abortion is publicly funded as a medical procedure. 

That’s right; abortion is treated as any other medical procedure in Canada. You’ll immediately get the punchline if you know anything about Canada’s medical system.  Practical access differs across regions; funding is a provincial matter and some provinces are more generous than others.  

It started with a man named Henry Morgentaler. A Polish-born Holocaust survivor, Morgentaler immigrated to Canada in 1950. There, he became a physician and opened his first abortion clinic in 1967.  One clinic eventually turned into twenty, even though Abortion was illegal in Canada until 1969.  

As a prominent abortion rights advocate, he brought the matter to the Supreme Court of Canada not once but three times. 

The first time, in 1975, had failed. Abortion had been criminalized to an extent at the federal level at this point, and the Charter of Rights and Freedoms had not yet been written. The court found the relevant law was appropriately passed by parliament.  

The second time, in 1988, was a success and it’s a landmark decision of the SCC. Here, the court ruled that the abortion provision was unconstitutional because it violated women’s rights to the security of the person in section 7 of the Charter of Rights and Freedoms.  

Here is what the section says: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 

That is, the person’s life, liberty and security is not to be deprived by government intervention. Unlike the implicit right to ‘Privacy’ found in the 1973 Roe v Wade decision, ‘security of the person is actually found in the text of the relevant section of the Charter. Since this decision, Federal Parliament has not attempted to pass laws proscribing abortion.  

But the most important decision of all came in 1993, (R v Morgentaler)  when the Supreme Court of Canada struck down Nova Scotia’s provincial regulations of abortion. They had found that the provincial legislation to be criminal law, and thus was a violation of the 1867 Constitution Act. The Constitution Act assigns criminal law to the exclusive jurisdiction of the Federal Parliament; not to the provinces. This is in contrast to the United States, which does delegate substantial legislative authority to the individual states. 

The author considers the 1993 decision to be a much more durable protection of abortion rights than the 1988 one. A future Supreme Court may decide that the 1988 Court had misapplied section 7 in protecting Abortion access, and overturn it, but they’ll never contradict the Constitution Act. As a result, while some American states had enacted ‘trigger laws’ the moment the decision was released, no Canadian province would ever bother with such.  

Let’s take a moment to reflect on Henry Morgentaler himself.  

Henry Morgentaler was a man who fought for women’s reproductive rights for over twenty years, when doing so was difficult.  Henry Morgentaler was an immigrant who took on his adoptive country’s provincial and federal governments in order to change their laws. And as a survivor of the Holocaust, Morgentaler undoubtedly had a greater appreciation for the sanctity of human life than a hundred Republican lawmakers ever could, yet he made it his life’s mission to make it safe and legal for a woman to terminate a pregnancy.  

Now let’s briefly talk about the Canadian Supreme Court.   

In the previous article, I compared two distinct judicial philosophies on the US Supreme Court: Originalism and Living Constitutionalism. Republicans prefer originalist judges and Democrats prefer Living Constitutionalists. Roe v. Wade was overturned last week because the Republicans had finally appointed and confirmed enough originalists onto the SCOTUS bench to overturn the decision at the first opportunity. The media will readily tell you which justices are conservative and which ones are liberal, and CBC published an analysis about the SCOTUS conservative majority, titled ‘’How a conservative bloc, unrestrained by public opinion, is leading the U.S. Supreme Court’’. 

Absolutely none of this is true with our own Supreme Court.  Our confirmations are fairly quiet, dull affairs. Although all nine of our current justices are either Harper or Trudeau appointees, none of them have a reputation for being either judicially conservative or liberal. In my previous article, I said that none of the current SCOTUS justices would be on the bench had the other party been in power at the time of their nomination. I cannot say the same about our justices. In fact, our current Chief Justice, Richard Wagner, was appointed to the bench by Harper and then elevated to Chief Justice by Trudeau.  

 An academic analysis may look beneath the surface to find something substantial, but the media pays little attention. When CBC does cover them, it’s usually just reporting about a decision they made or a new appointment. If they talk about the court itself, they address the entire institution. The individual justices are talked about very little, and there’s certainly no comparing a particular Bloc within the SCC to a runaway freight train. There is no evidence of lobby groups teaming up with political parties to influence the makeup of the Supreme Court of Canada to influence judicial outcomes. And it’s not like the SCC is any less consequential to us than the SCOTUS is to the United States. In the last ten years alone, they’ve affirmed the right to assisted dying, ruled consecutive life sentences to be ‘cruel and unusual’, overrode provincial challenges to Trudeau’s carbon tax plan, and are currently deliberating on a case that will redefine consent.  

We don’t have to worry about abortion being criminalized. Currently, anti-abortions is not something federal Conservatives feel confident running on. Contrast that with just about every Republican presidential candidate professing to protect ‘the sanctity of life’ since Reagan. Again, this goes to the division of power between federal and provincial jurisdictions. Both in Canada and the US, the general population favored keeping Roe intact and protecting abortion rights, but in states like Texas and Kentucky, the anti-abortion voting bloc attains a local majority at the ballot box and the legislature. At the federal level, Democrats and Republicans are kept at a stalemate by the filibuster.  

In Canada by contrast, any regulation of abortion would have to be at the federal level, which means that a Conservative Candidate would first have to win a majority government in a federal election (the opposition would simply block a pro-life Conservative minority government).  In doing so, they would have to overcome a Liberal/NDP effort to mobilize the pro-choice vote, especially in the swing districts like the GTA. According to polls, 70-80% of Canadians surveyed in the last month either favor maintaining the status quo or protecting abortion rights through legislation. Candice Malcolm, the editor of the conservative news outlet ‘True North Center’, actually declared that the pro-life movement has failed  in Canada. 

 Part of the reason US Republicans run on opposing abortion is that they depend on votes from the Evangelical voting bloc to help win elections; there’s no such political profitability for Canadian conservatives to do the same. 

So the probability of a pro-life candidate successfully winning a federal election is pretty low.  

So much for legislation; what about access? Does freedom from government intervention readily translate to access to government services? 

Like with many medical services, access is uneven across Canada. There are more clinics in the urbanized southern Ontario than in the rural northern part of the province. Funding is a provincial jurisdiction, and some provinces fund abortion access better than others. In part, this may suggest that some provincial governments, while constrained from criminalizing abortion, are reluctant to actively provide the resources to facilitate abortion access.  

To be fair, access problems go beyond abortion; the entire country experiences a disparity in access to medical resources; our medical system was strained even before covid.   Now, in the wake of Dobbs v. Jackson, Americans may travel from the Red States to the Blue States and even Canada to get their abortions. All while rural Canadians still struggle to travel to Toronto or Saskatoon to get their own abortions. Some are concerned our system could subsequently be overwhelmed as the lines get longer.  

Presently, there are more ‘crisis pregnancy centers’ than abortion clinics, and at first glance, it can be hard to tell the difference. One way to tell is by the name; if it says ‘pregnancy center’ or has the word ‘pregnancy’ in the title, it’s not an abortion clinic. A real abortion clinic will say so in its name or close enough. Look the clinic up online; if it’s a real abortion clinic, you’ll find out soon enough.

Presently, there are no freestanding abortion clinics in Windsor; we just have the Metropolitan campus Windsor Regional Hospital.