Roe v Wade, the landmark case which equated reproductive rights with the right to privacy and ensured that people looking for an abortion for any reason are legally entitled to do so, may be overturned. There have been discussions over the possibility since December 2021, discussions that then turned to outcry with the leaking of a draft opinion to POLITICO from the Supreme Court in early February. This draft opinion, written by Justice Alito, is a spirited and methodical dismantling of two cases – Roe v. Wade and the 1992 Planned Parenthood v. Casey, which strongly upheld and relied on the former – and has led to protests and demonstrations across the country, as well as interviews and discussions among political leaders in the states and Canada.
Linda Coffee, the attorney representing “Jane Roe” (a pseudonym for Norma McCorvey) in the now-legendary class action suit, responded to the possibility in an op-ed piece for New Republic, asserting that “the loss of the right to privacy and the ability of American women to make their own decisions about pregnancy signifies a loss of dignity. It is a giant step backward in American history.” For many, this ruling on abortion leveled the playing field in a country that was bent on acknowledging gender. The overturning of the case will immediately lead to multiple states banning abortions; in fact, these states – by and large Republican-led – have put “trigger laws” into place, so that the moment Roe v. Wade is overturned by the Supreme Court, they will be enacted. Some states have already passed legislation that severely restrict when a pregnant person may seek an abortion; for Texas and Idaho, this limit is six weeks, while the current case before the Supreme Court – brought forth by Mississippi – seeks to ban abortions after 15 weeks.
You may be thinking, we live in Canada and are governed by the Supreme Court of Canada – why should this concern us? And, truly, does it? Legally, not really; but, it does in the sense that it was common practice for those in states where abortion is illegal to cross the border into other states or Canada to receive a legal and safe abortion by a competent physician. Since a number of states have been enacting legislation to go into effect following the overturning of Roe v. Wade, it may not be possible for Americans to receive an abortion in neighbouring states, or to cross multiple state borders in order to receive one. Thus, it may be closer and more affordable for some Americans to come to Canada. Families Minister Karina Gould has spoken to this effect frequently following the leak, and PM Trudeau has asserted that Canada supports a person’s right to abortion. That being said, Trudeau’s statement has been called into question – which in turn reflects on the legal situation surrounding abortion in Canada and the states.
Canada had its own landmark case, R. v. Morgentaler, dating back to 1988, which argued that the Criminal Code’s procedure and treatment of abortion – requiring the agreement of a team of doctors before being performed – was fundamentally unconstitutional. Though it was so found, there is still no “right” to abortion in Canada – it is not a protected right under the Charter of Rights and Freedoms. The decision in Roe v. Wade, on the other hand, made abortion a protected right in the US.
(Though abortion is legal across Canada, we do have a restriction – 23 weeks and 6 days, to be precise. Strangely enough, there are states in the US that perform abortions after this cut off, leading to another way Canadians may be affected if Roe v. Wade is overturned – in that Canadians will be unable to receive an abortion after this cut off in the states.)
If Roe v. Wade is overturned, then – legally – the US and Canada will appear to be on a level field in terms of abortion laws/rights. In fact, Justice Alito says as much in the draft opinion – the possible overturning of the decision in Roe v. Wade is not a judgment on a person’s reasons for getting an abortion or a ruling made for the purpose of restricting abortions; instead, the draft opinion is a review of Roe v. Wade’s legal argumentation and its specific reliance on the Constitution. What the draft opinion dismantles is the need for – or even validity of – abortion as being a constitutionally protected right.
Justice Alito in the draft opinion writes that, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This is a chilling statement if one thinks in extremes – as is made clear by the extreme limitations and restrictions already in place in the majority of states – but perhaps what Justice Alito is getting at is what Canada’s approach to abortion already is.
Though this potential decision is deeply upsetting and shocking for Americans across the US as well as Canadians, we must all remember that a draft opinion is just that – a draft opinion. It is not a final decision; we must all wait until June for that. I join you in hoping for the best.