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| Oksana Romanov |
The recent leak of the U.S. Supreme Court’s draft decision aiming to overturn Roe v. Wade 410 US 113 (1973) regarding abortion rights for American women is a focus of many articles and editorials. It raises several important sociocultural and legal issues in the U.S. and Canada. The focus of this article is not the leak itself. Instead, my goal is to argue why Canadian women's rights to safe and legal abortion are rooted in our culture and legal tradition and are here to stay.
Moreover, the federal government is currently looking at ousting the uncertainty about these rights through amendments to the Canada Health Act to ensure that women's rights to safe and legal abortion are permanently protected. The primary objective of the Act reflects Canadian health-care policy — “to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.” Therefore, codifying abortion rights would successfully address a threat of evolutionary uncertainty regarding developments in the common law.
I do not need to tell fellow Canadians and their values and attitudes are different from those of their southern neighbours. Canada and the U.S. are two distinct societies which are diverging. Arguably, generalizing broadly and leaving aside the discussion of the Freedom Convoy trucker and the Rolling Thunder biker protests, Canada is based on consensus and co-operation rather than competition. Moreover, Canadian women’s attitudes towards authority, religion, the primacy of the family, fertility and abortion rights are significantly divergent from their peers living in America. In his book Fire and Ice: The United States, Canada and The Myth of Converging Values, Michael Adams relies on proprietary quantitative research and census data to argue that Canadian women are twice more likely to delay marriage and child-bearing than their American sisters. Although Adams notes that the fertility rate in both countries fell below replacement in the 1970s and ’80s, it got back up in the United States in the early 1980s and 1990s but kept on falling in Canada up until 2001 (a date which is close to the 2003 publication date of his book). According to Adams, increased Canadian secularism contrasted with the religious observance in the United States can at least partially account for this difference. Fire and Ice highlighted that only 18 per cent of Canadian women of a child-bearing age practise religion weekly in the early 2000s.
According to the Pew Research Center’s data, American adults are sharply divided on whether abortion should be legal or illegal in all or most cases. For example, in some of the most conservative states of Alabama, Kentucky, and Texas, between 57 per cent to 59 per cent of adults say that abortion should be illegal. At the same time, the number of adults voicing their opinions against abortion in Massachusetts, New York and California is drastically lower and constitutes between 22 per cent, 32 per cent and 38 per cent, respectively. Strikingly, the COVID-19 pandemic highlighted some warning signs when it comes to accessing abortion in the U.S. As Greer Donley et al. (2020) highlight, the availability and legality of abortion, including late-term abortion, varied across the state lines due to the enforcement of the cessation of non-essential health-care orders. As the legal scholars and researchers put it, “many conservative states have sought to capitalize on those orders to halt abortion care,” which should be considered essential health care.
Now, let’s reflect on the situation in Canada when it comes to abortion rights.
Prior to the Canadian Charter of Rights and Freedoms, abortion activist Dr. Henry Morgentaler defied the law by opening his first abortion clinic outside the provincial health-care and federal criminal law regimes in 1969 and paved the way for Canadian women to have their autonomy and rights respected, marking significant historical moments in the abortion rights movement in Canada. Section 7 of the Charter protects a right to “life, liberty and security of person.” Section 7 has been interpreted to encompass a right to abortion as well as a “primordial right to privacy” as dignity (R v. Morgentaler [1988] 1 S.C.R. 30 at 230; Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326 at 1362).
In Morgentaler, the Supreme Court of Canada struck down Canada’s abortion law as unconstitutional. Morgentaler and two colleagues established and operated an abortion clinic in Toronto in contravention of the then-in-place provisions of the Criminal Code. There was a narrow exception for abortions approved by the therapeutic abortion committee in writing and performed in an accredited hospital if a woman’s pregnancy would or be likely to endanger her life or health. The abortion was performed by a qualified medical practitioner and not a committee member. Morgentaler’s clinic did not qualify for this exemption. Morgentaler and his two colleagues were charged with conspiring to commit an offence under former s. 251(4), Criminal Code. Morgentaler successfully argued that the Code provision violated s. 7 of the Charter. As for the s. 7’s liberty interest, Justice Bertha Wilson stated that “an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state.”
Notably, Morgentaler is analogous to the landmark privacy decisions of the U.S. Supreme Court in Griswold v. Connecticut 381 U.S. 479 (1965) and Roe v. Wade, an abortion rights case. Griswold, a case about the right of a married couple to use contraception, reflects the Fourth Amendment jurisprudence, wherein the U.S. Supreme Court located a constitutional right to privacy — the right to be left alone and be free from the interference of the state — within the Bill of Rights.
In 1989, Chantal Daigle asserted her s. 7 Charter right and overcame a Quebec-based interlocutory injunction initiated by her ex-common law spouse trying to prevent her from getting an abortion. This act of defying to submit to men’s rules and demands is captured in Tremblay v. Daigle [1989] S.C.J. No. 79.
Fast-forward to today, and it took other cases and many years of litigation for Canadian women to gain control of their bodily and decisional autonomy and have their abortion rights respected socially and legally. Let’s keep it that way. Canadian women “need to be active, vigilant and speak out” to safeguard their right to abortion.
Oksana Romanov is a 3L law student at the Lincoln Alexander School of Law in Toronto at Toronto Metropolitan University. She is an aspiring employment law lawyer and a summer legal student at Workly Law. To learn more about the author, you can visit her LinkedIn profile.
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