Overturning Roe v. Wade: An Enormous Step Backward

The US Supreme Court made international headlines when it recently overturned Roe v. Wade. When the Roe decision was released in 1973, abortion was legalized throughout America. Prior to Roe, abortion had been outlawed in 30 states, without exception. Some states allowed abortions under limited circumstances, for example when it was necessary to save the mother’s life, in cases of rape, incest, or major fetal anomaly. In Roe, the US Supreme Court ruled that the Texas law banning abortion was unconstitutional. The result was that abortion services became legal and much more accessible nationwide. That has been the status of abortion-related law in America for nearly fifty years. Enter the US Supreme Court of 2022, a panel that recently ruled in Dobbs v. Jackson Women’s Health Organization, and overturned the historic decision in Roe v. Wade.

Dissenting Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, noted that the majority opinion in Dobbs meant "young women today will come of age with fewer rights than their mothers and grandmothers." Poignantly, these justices observed, "With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent".

As is all too often the case, these healthcare restrictions will be borne unequally by women of colour and those living in poverty. The impact will be felt most acutely by those who cannot travel for abortion services or obtain medication that could prevent or terminate a pregnancy.

The headlines resulting from this dramatic shift in US law can be anxiety-inducing and you may have questions about the law in Canada and what implications this decision has for Canadians.

In Canada, the leading case is R. v. Morgentaler, when in 1988 the Supreme Court of Canada struck down provisions in the Criminal Code that outlawed abortions except in limited situations. The old law allowed therapeutic abortions only when a committee of doctors certified that continuing a pregnancy would likely endanger the mother’s life or health.

Dr. Henry Morgentaler, the key figure in the seminal case, was a Jewish, polish-born Canadian physician. Morgentaler was a young man during World War II, imprisoned in the Łódź Ghetto, and later at the Dachau concentration camp in Germany. He survived the war and in 1953 graduated with his medical degree from the Université de Montreal.

In 1968, at great professional and personal risk, Dr. Morgentaler opened a private clinic in Quebec where he performed abortions for those who would not qualify according to the law of the time. He made abortion services available to those who had not received certification from the Therapeutic Abortion Committee, as required under the Criminal Code.  Dr. Morgentaler was arrested and tried multiple times. He was jailed in Quebec in 1975. Dr. Morgentaler eventually opened abortion clinics in Ontario, Manitoba, and Nova Scotia. He faced continued legal battles while trying to expand reproductive rights throughout Canada.

In 1988, the Supreme Court of Canada found that the Criminal Code provisions limiting access to abortions were unconstitutional, and violated a person's right to “life, liberty and security of the person” guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms. This ruling meant that the law was struck down and doctors could no longer be charged for providing necessary healthcare services including abortions to pregnant persons. The Supreme Court of Canada relied heavily on the reasoning in Roe in its decision.

In 1991, the PC Government under Prime Minister Brian Mulroney tried unsuccessfully to pass new more restrictive abortion laws. The Bill passed in the House of Commons but failed in the Senate, in a tie vote.

No government since has attempted to revive abortion restrictions meaning that since 1988, Canada has not had any Criminal Code provisions restricting abortion. As legal professionals, we believe it is important to reduce the stigma surrounding abortion and ensure that healthcare rights in Canada remain strong. We support freedom of choice and reproductive rights for all.

We are saddened, angered, and distressed by the recent ruling by the US Supreme Court and agree with the dissenting justices that this decision is an enormous step backward around reproductive rights. The decision directly impacts many US citizens living in states which have already, or plan to, pass laws outlawing abortion for their citizens. Throughout our lives, the US has been seen as a global power and leader in democratic freedoms. This latest move, and what it could mean for the Rule of Law, is frightening. It is an erosion of personal rights which diminishes the US as a bastion of freedom on the global stage. Fortunately, in Canada, reproductive rights and healthcare choice remains. We look to our neighbours to the South with sadness, and as a warning that hard-fought freedoms can never be taken for granted.