Implications of Roe v Wade in the Canadian Context

By Jonah Secreti and Michael Cheung

 On June 24, 2022, the United States (US) Supreme Court overturned the 1973 decision in Roe v Wade. There have been protests across the US (both in favour and opposed) and demonstrations have spilled into Canada, where there is great concern about its implications for Canada.

Canada and the US, while both common law systems, have taken different approaches to the legality of abortion, and it is important to understand these key distinctions. Another significant difference is that in the US, individual states have jurisdiction to pass criminal laws, whereas in Canada, section 91(27) of the Constitution Act, 1867 grants this authority to the federal government.

In the US (before June 2022)

In 1973, the US Supreme Court (USSC) in Roe v Wade, held “state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights” (at 154). This case originated with the plaintiff, under the pseudonym “Jane Roe”, seeking a declaration that “abortion statutes [in Texas] were unconstitutional” and “an injunction restraining the defendant”, who was the District Attorney of Dallas County in Texas, Henry Wade, from “enforcing the statutes” (at 120).

The USSC held that “the right of personal privacy includes the abortion decision” (at 154).

The USSC found the right of privacy in the due process clause of the Fourteenth Amendment to the US Constitution, which prohibits states from depriving “any person of life, liberty, or property, without due process of law”. 

States were restricted in their abortion regulation as the USSC viewed existing state criminal laws as “sweeping too broadly” and “unable to survive the constitutional attack” (at 164).

Further cases refined Roe v Wade: most notably Planned Parenthood of Southeastern Pennsylvania v Casey (Casey) where the “undue burden standard” was applied by the court to restrictions on individuals seeking an abortion (at 876).

In Casey, the Supreme court affirmed women’s right to abortion established in Roe v Wade recognizing “personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment” (at 851).

Subsequent cases relied on Roe v Wade and Casey.

In Gonzales v Carhart (2006), an abortion procedure banned under the Partial Birth Abortion Ban Act was upheld as the USSC stated: “the Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity” (at 26).

In Whole Woman’s Health v Hellerstedt, Casey was relied on when two provisions of a Texas law regarding admitting privileges were struck down as “a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so” (at 36).

The case in June Medical Services L.L.C. v Russo also relied on Casey to strike down a similar law in Louisiana regarding admitting privileges. The USSC decided that the Louisiana statute was unconstitutional (at 3).

Current US Situation

In the two cases of Roe v Wade and Casey, the USSC had affirmed abortion as a right protected under the US Constitution. This is no longer the case, given the USSC’s recent decision in Dobbs v Jackson Women’s Health Organization, which centered on a Mississippi state law banning early-term abortions. The USSC held (Dobbs, at 1) that “the Constitution does not confer a right to abortion”, thus overturning the precedent established in Roe v Wade and Casey.

With the overturning of Roe v Wade and Casey, numerous trigger laws (laws that are unenforceable but may achieve enforceability if a key change in circumstances occurs) in 13 US states can ban abortion procedures, with many other states considering similar bans or restrictions. These trigger laws criminalize abortion in the absence of Roe v Wade and Casey, allowing states far more power over access to abortion.

This increasing presence of restrictive legislation is likely to result in substantial changes to abortion access varying from state to state.

In Canada

Unlike the US, Canada took a different route regarding abortion. Canadian abortion history begins in 1976 with the case of Morgentaler v The Queen, where the Supreme Court of Canada (SCC) originally overturned Morgentaler’s acquittal. Dr. Morgentaler was charged with a criminal offence because he performed abortion procedures for women in need. At the time of the case, there was a criminal provision in section 251(1) of the Criminal Code, which stated:

(1) Everyone who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.

The SCC held that the abortion provisions were ultimately valid, serving a criminal purpose: protecting the fetus (at 669- 670).

Since the Canadian Charter of Rights and Freedoms (the Charter) would not be enacted for another four years, Morgentaler had to rely on the implied Bill of Rights, which the SCC rejected. Although Morgentaler lost, this case became the beginning of a cornerstone of jurisprudence that now deals with abortion in Canada.

 While the focus in the US was on the right to abortion in Roe v Wade, Canada instead found that the Criminal Code abortion legislation was wholly unconstitutional. Former subsection 251(4) of the Criminal Code specified that only women that were approved by a therapeutic abortion committee (TAC) would be allowed an abortion.

Twelve years later, in 1988, in R v Morgentaler, Dr. Morgentaler was charged under the Criminal Code abortion provision and successfully argued that this violated Charter section 7 because it banned abortion for all women except for those who were “committee-approved” (see former section 251(4) of the Criminal Code). The inconsistencies of the procedures of the therapeutic abortion committees meant that different women across the country would receive varying treatment, scrutiny and differing criteria would be applied, thus engaging and infringing section 7 of the Charter “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”.

 With the infringement and the inability of the government to justify the violation, section 251 of the Criminal Code was struck down. After the decision of R v Morgentaler 1988, abortion became decriminalized. Thus, criminal legislation could not infringe a woman’s ability to seek out the best medical procedures for her own body. This was a victory for women nationwide.

 After the 1988 decision by the SCC, there were some attempts by provincial legislators to limit access to abortion. The Nova Scotia government attempted to pass legislation (Medical Services Act and regulations pursuant to the Hospitals Act), and claimed that the provincial government was fighting the privatization of the health care system to prevent abortions. The SCC ultimately held that these regulations and legislation were outside of provincial legislative jurisdiction. These cases ended in 1993, when the SCC decided to strike down the entire Act and regulation, deciding that the Nova Scotia government was acting outside of their jurisdictional purview (at paras 82-84).  

 These Canadian cases serve as an essential reminder that women’s choices and bodily integrity regarding abortion are subject to the Charter, both provincially and federally. The Canadian courts continued to affirm women’s access to abortion. After 1993, cases like Winnipeg Child and Family Services (Northwest Area) v DFG recognized that:

The court cannot make decisions for the fetus without making decisions for the woman (at para 56).

Current Canadian Situation

After the ruling in Morgentaler, the then Canadian government tried to pass an amendment to the Criminal Code. However, Bill C-43, 1990 was defeated in the Senate. Successive governments have declined to attempt to pass any other abortion legislation. Prime Minister Trudeau recently said he would not pass legislation providing for a right to abortion, concerned that future governments or courts could roll it back. Instead, the current government is focused on ensuring equitable access to abortion.

Currently, as noted by Michael Lee, the country has seen a significant access “crisis,” particularly in rural and Indigenous communities, as well as certain provinces. Further, a 2016 UN Human Rights Commissioner’s report noted a lack of access to abortion in Canada and called on the government to redress inequities, and, waiting lists for almost all services including abortions have become beyond sustainable.

As the discussion continues, we should remember that the fight for access to abortion is not without its own sacrifices. Dr. Morgentaler and similar doctors were forced to face public repercussions fighting for women’s access to abortion. Dr. Morgentaler endured death threats and bombings from the public. Dr. Romalis, a gynecologist who provided women seeking abortion with safe procedures, was a victim of attacks, which cost him his life.

Conclusion

After 1993, in Canada, we continue not to have a constitutional right to abortion. However, Canada follows a different path from the US, with abortion being decriminalized.

 In the US, overturning Wade and Casey has drastically changed the legislative landscape resulting in more power afforded to individual states, many of which have or will make abortion procedures illegal. Canada is in no way perfect in abortion procedure access, though. There are still problems involving wait times and availability of abortion services that are prevalent in Canadian society.