Like many other things in Canada, our justice system is influenced by what happens in the United States given their proximity and influence.

The United States Supreme Court recently released a landmark decision in Dobbs v. Jackson Women’s Health Organization (“Dobbs“) which declared that abortions were no longer a constitutionally protected right across the country. Thus, the decades old decision in Roe v Wade (“Roe“) granting women across the country the right to access abortions was overturned. For Canadians, the burning question is whether this will affect abortions in Canada?

The History of Abortions in the United States

Before looking at abortions in Canada, it is important to look at the history of abortions in the United States. Prior to 1973, the issue of whether abortions were legal in the United States was left up to individual states – most states either prohibited abortions without exception or allowed it only in special circumstances (i.e. rape).

The landmark United States Supreme Court decision in Roe in 1973 changed all of this. In Roe the Court recognized that access to abortions was a constitutionally protected right. This meant that the right of individual states to decide the legality of abortion was taken away.

Abortion remained legal across the United States for many decades because of Roe. Yet, Roe did not stop the debate on whether the right to access abortion should remain legal. In fact, anti-abortion movements did not just stop at debates as many pro-life states (i.e. Alabama) implemented what are called “post-Roe” trigger laws. Such laws by states like Alabama wrote into law abortion restrictions and/or bans. However, because Roe remained the law of the land the laws were written such that they would only go into effect or be “triggered” Roe was one day overturned by the United States Supreme Court.

Understanding Dobbs

That day came on June 24, 2022. In the United States Supreme Court decision in Dobbs, the Court decided to overturn Roe. Specifically, the Court held that abortion was not constitutionally guaranteed. In practice, this meant that there was no longer a blanket right to abortion across the entire country. Rather, individual states would have the right to determine the legality of abortion.

This fundamental reverse to how the justice system in the United States views abortion has triggered riots and rallies (both in opposition and in favour of the decision) across the across the country and across the world.

Questions about what was next for abortion laws in many other countries have been asked. Canada was no exception. So, what does this mean for abortion access in Canada? Are we headed the way of the United States in limiting abortion rights?

Abortions in Canada  

Abortions in Canada have been legal since the 1993 Supreme Court of Canada decision in R v Morgentaler. Prior to the ruling, section 251(4) of Canada’s Criminal Code only allowed for abortions to be performed at accredited hospitals with proper certification of approval from the hospital’s Therapeutic Abortion Committee. In short, if a woman wanted an abortion they would need to vetted first.

The Court in Morgentaler undid all of this by finding that section 251(4) was unconstitutional for violating a women’s right to security of person under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”).

This meant that abortions were no longer considered a criminal act under Canadian law. In practice, the decision allowed for unrestricted access to abortions. Yet, the Court in Morgentaler did not make abortion a constitutionally-protected right. This is the important takeaway as unlike for Americans under Roe, there is no ironclad constitutional protection of abortion rights for Canadians. In fact, abortion is considered a medical procedure in Canada. This means that abortion falls under the jurisdiction of individual provinces. As such, access to abortion varies across our provinces and territories. Things have largely remained unchanged since Morgentaler.

Hypothetically the federal government could try to implement a new law that restricts abortions in Canada. The only way to permanently protect abortion rights is to make it a constitutional right and make an amendment to the Charter. This would be very difficult given how difficult it is to amend the Charter.  

It seems that, for now, access to abortions in Canada remains precarious. Will the decision in Dobbs make things worse?

The Future of Abortions in Canada

In reviewing some of the Canadian media coverage (including here and here) on the recent events in the United States, it is clear that many are convinced that abortion rights in Canada are threatened by the overturning of Roe. We don’t think this is the case for several reasons. First, it does not appear that Canadian courts want to ban abortion. Consider that subsequent Supreme Court cases to Morgentaler like in Winnipeg Child and Family Services v. DFG (1997) and in Dobson v Dobson (1999) have upheld the Charter rights of pregnant women over the rights of the unborn / fetuses.

Second, the critical difference between the United States and Canada is that criminal law in Canada is federally-regulated whereas in the United States each state makes its own criminal laws. For abortion to become illegal, a bill to amend the Criminal Code to make abortions illegal would need to pass both Houses of Parliament in Canada. Thus, a broad spectrum of political support would be required. This is highly unlikely especially given a 56 per cent majority of Canadians support abortion access.

This leads us to our third and final reason. Given that the majority of Canadians support abortions, there simply is no political appetite to change the status quo. Specifically, even the Conservative Party of Canada, which is the most likely party to limit abortion access, has remained quiet on the issue.  

In short, while Canadians do not have a ironclad constitutional right to abortions, it also does not appear like abortions will be taken away or limited any time soon as there is no support to change this from our courts, from our politicians, nor from the majority of Canadians.

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