On May 2, a draft decision from the U.S. Supreme Court was leaked to the press. The 98-page document overturns the landmark 1973 decision Roe v. Wade, which protects the right to an abortion in the United States. The draft, delivered by Justice Samuel Alito, undoes 49 years of precedent, rolling back federal protections for women’s reproductive rights and sending the issue back to the states, many of which have restrictions that would go into effect as soon as Roe is reversed. The leak caused an immediate backlash in the U.S., but the impact of Roe’s repeal reverberated north of the border as well, worrying many Canadians about a possible backsliding of their own reproductive freedoms. So what the hell is going on with reproductive rights?
Now I know what you’re thinking: “please, middle-aged white man with no children — tell us what you think about all this,” and that’s fair. I think women should have agency over their own bodies; beyond that, I don’t really have an opinion on abortion — but I have lots of opinions on politics. First, there are important differences between the legal protections surrounding reproductive rights in Canada and the U.S. that are important to consider when evaluating the strength of those protections. To oversimplify, the Supreme Court of the United States (SCOTUS) bases its rulings on the justices’ interpretations of the U.S. Constitution; some take a more “originalist” view, while others see it as a “living document” that evolves over time. Think of the Constitution like the Bible: some see it as literal truth, while for others, it’s a moral guide. That interpretation of constitutionality forms the basis for the SCOTUS decision. The draft overturning Roe now does so on the grounds that “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision….”
Conversely, Canada’s legal protection of a woman’s right to choose is more firmly grounded. Rather than being written with a quill in the shade of a tricorn hat, the Canadian Charter of Rights and Freedoms was signed into law in 1982, making it younger than I am. Canada’s Supreme Court struck down its own anti-abortion laws in 1988 based on Section 7 of the Charter because it infringed upon a woman’s right to “life, liberty, and security of person.” This makes it easier to claim that abortion is a fundamentally protected right in Canada.
There are additional factors at play. For instance, U.S. states have more autonomy than Canadian provinces. Much has been made of “states’ rights” and their unique freedoms from federal legislation — they had a whole war about it — and many have been methodically chipping away at Roe for decades, testing the limits of its protection in an attempt to undermine it. In contrast, Canadian provinces have generally expanded abortion access, and federally, there hasn’t been any serious challenge to the ruling since the Mulroney era.
The presumed SCOTUS ruling has nonetheless thrust the abortion conversation into the Canadian political spotlight. As a country, Canadians are generally pro-choice, and disagreements tend to circulate around what constitutes reasonable restrictions and access, rather than the fundamental right to choose. In a 2020 IPSOS poll, 59 per cent of Canadian respondents submitted that a woman should be able to receive an abortion whenever she wants one, whereas only 35 per cent of Americans felt the same way. There are many reasons why this drastic distinction exists, but one would be remiss not to point out the cultural makeup: America is the more religious country. The evangelical Christian and Hispanic Catholic communities combined account for approximately a third of the total US population, and at the risk of making generalizations, lean pro-life. Many, including myself, argue that the current character of the SCOTUS is a direct result of decades of systematic political activism and maneuvering.
It’s hard to imagine an issue that Canada’s Conservative Party wants less in the public discourse right now. As the party selects new leadership, any strong stance risks disenfranchising a sizeable faction of its voters; nonetheless, people are asking. Canada’s lack of federal legislation on the issue is often invoked to gin up fears of an epidemic of late-term abortions despite provinces and territories having their own regulations. Additionally, nearly 90 per cent of pregnancies are terminated in the first twelve weeks, and only an estimated 1.29 per cent of abortions occur beyond 21 weeks. This tiny subset of outlier cases is indicative of personal tragedy, not poor family planning.
None of this is to say that Canadians should become complacent on the issue of reproductive freedoms. The road to some semblance of women’s equality was a long, arduous slog through centuries of misogyny, but progress never follows a straight path. Pushback to progress can be swift and brutal, but sometimes it’s slow and methodical. The end of Roe represents the latter. What we are witnessing is the culmination of 50 years of focused effort in the face of liberal apathy and disunity. The result? Women in America may have lived to see the height of their bodily autonomy.
Long ago, when DeLoreans roamed the earth, Brad was born. In accordance with the times, he was raised in the wild every afternoon and weekend until dusk, never becoming so feral that he neglected to rewind his VHS rentals. His historical focus has assured him that civilization peaked with The Simpsons in the mid 90s. When not disappointing his parents, Brad spends his time with his dogs, regretting he didn’t learn typing in high school.
