In the wake of the US Supreme Court leak, Canada’s own abortion policy isn’t as safe as people think
Earlier this month, a leaked draft opinion letter from the U.S. Supreme Court declared its intention to overturn Roe v. Wade – the landmark 1973 Supreme Court decision that ruled that abortion rights were constitutionally protected.
The letter declared the opinion of the majority of the Supreme Court that it is “time to respect the Constitution and refer the question of abortion to the elected representatives of the people”.
Criminal law in the United States is shared between the federal and state governments, which means that laws regulating abortion can be passed at the federal and state levels. Currently, nine states have unenforced abortion bans that predate the 1973 Roe decision, and thirteen states have legislated abortion bans intended to take effect if Roe is overturned.
As such, it seems increasingly likely that following the Supreme Court’s final ruling, the United States will become a patchwork of very different abortion policies. “heartbeat bills.
As Canadians, it is too easy for us to make fun of the political events of our neighbors to the south, when we should be thinking about our own policies.
Unlike the United States, our criminal law falls solely within the jurisdiction of the federal government, which means that abortion in Canada cannot be legal in one province and prohibited in another. Any law restricting abortion should be passed nationwide.
The decision R v. Morgentaler of 1988, often described as the Canadian case of Roe v. Wade, concluded that abortion restrictions violate section 7 of our Charter rights – our right to personal liberty and security of the person. Although the Morgentaler decision struck down laws prohibiting abortion, it also did not enshrine the right to abortion in Canadian law.
Following the Morgentaler decision, Brian Mulroney’s Progressive Conservative government attempted to pass a restrictive abortion policy in the form of Bill C-43, which would have banned abortions except in cases where the mother’s health was in danger. Bill C-43 passed the House of Commons, but was defeated in the Senate – in part due to a presentation given by then-director of ethics, UVic’s Dr. Eike Henner-Kluge and Legal Affairs of the Canadian Medical Association.
Since then, no government has seriously attempted to reconsider the issue of legislating abortion.
There are very clear advantages to not having an abortion policy. By having no politics, we ensure that our government does not interfere with women’s bodily autonomy. Many have rightly argued that by not legislating on the issue, we are ensuring that abortion is treated as it should be – purely a health issue.
However, the absence of legislative policy on abortion also means that we leave the door open to future attempts by legislators to restrict reproductive rights.
The Conservative Party of Canada is currently in the process of electing a new party leader, and the issue of abortion was raised during the May 11 debate. All but one of the candidates – Dr. Leslyn Lewis, MP for Ontario – described themselves as pro-choice or otherwise said they would not reopen the issue of abortion.
Lewis, meanwhile, described herself as pro-life during the debate, to immediate applause from the audience.
While potential leaders apart from Lewis have declared their lack of intention to reopen the issue, the same cannot be said for the Conservative party as a whole. Last year alone, a private member’s bill to ban sex-selective abortions received 81 votes, just over two-thirds from the Conservative caucus.
More recently, a motion was tabled in the House of Commons by Bloc Québécois MP Christine Normandin to recognize women’s freedom of choice, but was blocked by several “no” votes from other MPs.
It is clear that, if the leadership of the Conservative Party does not seem willing to reopen the question of abortion, this feeling is not shared by all the elected members of the Party.
Prime Minister Justin Trudeau, meanwhile, reaffirmed his belief in a woman’s freedom of choice, while saying his government is reviewing the legality of reproductive rights to “move forward if necessary to ensure that no only under this government, but under any future government, women’s rights are properly protected.
Since 1990, we have relied on the Conservatives’ refusal to reopen the debate to ensure that abortion rights are not violated. Not having an active threat to these rights, however, is not the same as protecting them.
By not enshrining the legal right to abortion, we place too much faith in future governments to respect reproductive rights. It is high time we ensured that reproductive rights are legally protected for all future generations of Canadians, especially as our American neighbors see their own protections overturned.