Roe v. Wade leak highlights need to enshrine abortion rights in Canadian law

After a leaked American Supreme Court opinion, the release of which is now being investigated, it appears that a foundational yet controversial decision, colloquially called Roe v. Wade could be overturned. This has not only sent shockwaves through the United States, but also through Canada, where access to abortion is decriminalized, rather than a right.

If the Supreme Court strikes down these federal abortion rights, state abortion laws could determine reproductive care, and based on existing laws and those ready to be passed, called ‘trigger laws’, more than 20 states have laws that could be used to restrict the legal status of abortion. 

The 1973 case, Jane Roe, et al. v. Henry Wade, gave women a federally protected right to have an abortion through the first trimester of pregnancy, following the Supreme Court’s landmark 7-2 ruling. Plaintiff Jane ‘Roe’, who was later identified as Norma McCorvey, was an unmarried pregnant woman who was unable to get an abortion under Texas law, where it was illegal unless to save the life of the mother. 

The decision found that because McCorvey was unable to travel out of the state to obtain an abortion, the Texas law infringed on women’s right to privacy, was overly broad and violated the due process clause in the U.S. Constitution’s Fourteenth Amendment. 

And while the decision only applied to the United States, there is usually a ripple effect through Canada. 

A former political science professor at Laurentian University, Nadia Verrelli, is now a Research Fellow at the Queen’s University’s Institute for Intergovernmental Relations. She told Sudury.com there wasn’t a direct link between the case and legal abortion rights in Canada, but it strengthened the resolve to secure them. 

“There's always been a crossover with social movements so this was encouraging for those fighting for bodily autonomy, reproductive rights and reproductive justice.”

Verrelli, who ran for the NDP in Sudbury in the last federal election, said the case that did have a direct effect on reproductive rights in Canada was the landmark 1988 R. v. Morgentaler ruling. 

Previous to this decision, abortion was illegal under Section 251 of the Criminal Code, which  prohibited abortions for women unless they were able to get approval for the procedure by a committee of doctors. That approval often required a process that was deeply private and sometimes traumatic, and was inconsistent across the country, with different approaches taken in different regions.

In a 5-2 decision, written by Chief Justice Brian Dickson, the court ruled that Section 251 violated Section 7 of the charter, which guarantees the right of life, liberty and the security of the person. 

"Forcing a woman, by threat of criminal sanction, to carry a fetus 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 the security of the person," Dickson wrote.

But the ruling did not protect the right to abortion; it merely decriminalized it. In Canada, said Verrellli, abortion is neither legal nor illegal. 

The right itself has not been challenged since 1991, when former Prime Minister Brian Mulroney’s government introduced a bill that passed the House of Commons, but was defeated in the Senate. Since then, no government has attempted to introduce similar legislation, meaning Canada has no laws governing abortion. 

That means, in theory, any government could attempt to pass a new bill restricting abortion, said Verrelli.

“Canadians have rights to something either recognized by the court or by sections in our charter,” said Verrelli. “And that means that the government has to enable that right.” 

She draws parallels to voting rights, and language rights in Ontario.

“We have the right to be educated in either of the official languages, where numbers warrant, which means governments have to provide the facilities and services to enable us to exercise this right,” said Verrelli. 

Because Canadians don't have the right to abortion, governments don't have to provide facilities for or access to an abortion. 

It is for this reason, however, that reproductive rights were decriminalized — because access to a doctor who would approve an abortion would be easier based on where you live, something many in Northern Ontario are familiar with. 

“It would be safe to say that access to abortion would be easier in Toronto than it would be in Northern Ontario,” said Verrelli. “And if you look at the numbers, it's easier in Ontario than it is in the eastern provinces to access clinics.”

And for as much as Roe v. Wade could have strengthened the fight for women's rights in Canada, it could be the same for those who are anti-abortion, and Verrelli said even social media is showing that many are behind and perhaps emboldened by the overturned decision. “But also, those fighting for access to women's health and access to justice, it puts us on alert,” she said. “This is an indication that, while in Canada it’s decriminalized, access to save abortions is not as easy as, you know, going to your doctor and getting a checkup.”

And while there have been many laws on the books preventing abortion, it has done little to stop the procedure, just make it unsafe. According to the World Health Organization, approximately 45 per cent of all abortions are unsafe, 97 per cent of which take place in developing countries. Worldwide five million women are hospitalized each year for treatment of abortion-related complications such as hemorrhage and sepsis, and abortion-related maternal deaths leave behind approximately 220,000 children. 

Unsafe abortion, done without training or in an unsafe environment, is a leading cause of maternal deaths and morbidities. It can also lead to physical and mental health complications and social and financial burdens for women, communities and health systems.

Verrelli said ensuring equal access to reproductive rights in Canada would require the government to enact legislation. 

“We would need a law,” she said. “As it stands now, there is no law either to prevent or to ensure.”

To her, the reversal of Roe v. Wade was “devastating”.  

“It's a reminder that women's health and women's justice is not free,” she said. “Roe v. Wade showed that a court can simply overturn something women have been fighting for forever.”  

Jenny Lamothe is a reporter with Sudbury.com. She covers the diverse communities of Sudbury, especially the vulnerable or marginalized, including the Black, Indigenous, newcomer and Francophone communities, as well as 2SLGBTQ+ and issues of the downtown core.