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Could a ban on abortion happen in Canada? 'There's no way for it to get to the Supreme Court,' expert says

·6-min read

Action and reaction in America has been swift in response to a leaked draft of a document suggesting that the U.S. Supreme Court will vote to overturn Roe v. Wade, the 1973 landmark court case that legalized abortion in the country. On Tuesday, Chief Justice John Roberts confirmed the report’s authenticity and ordered an investigation, while President Joe Binder called the overturning of access to abortion a “fundamental shift in American jurisprudence.”

Meanwhile, social media was ablaze on both sides of the issue, with people opposing and encouraging such a decision.

When it comes to abortion in Canada, it’s a different landscape than the U.S. Here, abortion is a federal issue rather than a provincial or territorial one, whereas if the U.S. Supreme Court were to reverse the constitutional protection of abortion in that country, it becomes a matter for each individual state.

Canada's history with abortion laws

Canada’s present position on abortion came to in 1988, after the Supreme Court declared the criminal punishment of abortion to be unconstitutional, because it violates women's “security of the person”, according to Section 7 of the Charter of Rights. The question before then wasn’t whether abortion was constitutional, but rather whether our criminal law regarding abortion was being unfairly applied across the country.

Prior to that decision, there was a ban on abortion in the criminal code, but with one exception. A physician could provide an abortion if permission was received from a therapeutic abortion committee that was established at a hospital. In the years after that exception came into the criminal code, there were no requirements that all hospitals had to have such a committee, so many didn’t. There were also no criteria as to what basis permission was to be granted, so some committees would approve all abortions, while others had specific criteria like gestational limits or whether the person’s life was in danger.

The Supreme Court recognized that the federal criminal law had an exception that was uneven across the country. They determined that the right to have an abortion shouldn’t depend on where you live and whether a therapeutic abortion committee is friendly or not.

“It was the unfairness of the process that led them to say this criminal law has to be struck down as unconstitutional,” Daphne Gilbert, a law professor at the University of Ottawa, tells Yahoo Canada News.

Following the Supreme Court’s decision, legislation was proposed by Conservatives for a gestational limit on abortion, in which the House of Commons approved, though it eventually died at the Senate.

That was the last time there’s been any serious effort to re-criminalize abortion, though there’s since been private members bills and side door efforts. As a result, Canada is the only country in the world that doesn’t have criminal regulation of abortion.

Since 1988, there’s been a lot of changes to how the courts consider this section of the charter. Gilbert says it’s gotten to the point where she can’t imagine an argument that would allow for a ban on abortion in Canada.

They would have to go back on so many things that they’ve said since (the 1988 decision). Not about abortion, because we don’t have a law, so there’s no way for it to get to the Supreme Court to be challenged.Daphne Gilbert, Law professor, University of Ottawa

Bernard Dickens, co-author of the book Reproductive Health and Human Rights: Integrating Medicine, Ethics, and Law says it would take a total sea change in government to get to the point of criminalizing abortion.

There’s no legal right to abortion in Canada but politically it’s such a hot issue that no political party of any point of the political spectrum wants to deal with it. If there were a sudden rush of blood to the head and an extreme far right group wanted to enact criminal penalties, then they could.Bernard Dickens, co-author of the book Reproductive Health and Human Rights: Integrating Medicine, Ethics, and Law

Access to abortion in Canada is still a massive issue

Despite Canada’s constitutional position on abortion, many activists and legal experts stress that Canadians who believe in democracy shouldn’t get complacent, especially when it comes to access.

For example, New Brunswick currently only funds abortions done in hospitals, but not clinics, a restriction that’s being challenged by the Canadian Civil Liberties Association. In the past, the province required two doctor referrals to access abortion.

Meghan Doherty is director of global policy with Action Canada for Sexual Health and Rights. She says when it comes to abortion, people with the least access to resources are the ones who suffer the most, regardless of where they might live.

“While we have a much different context in Canada than the U.S., access to abortion remains an issue, particularly for people with low incomes, those who are undocumented, or they have less access to health care services to begin with,” she says.

Doherty points out that of the current sitting Members of Parliament, about 25 per cent of them have voted in favour of some type of abortion restriction.

“The important thing to remember is that we can’t be complacent and the focus needs to be on improving access,” she says. “We must be aware of the groups that are trying to restrict our bodily autonomy.”

Doherty says Canadian anti-abortion groups are sometimes part of a broader movement and receive donations and resources from U.S. based organizations.

Access to abortion is about democracy and human rights and racial justice,” she says. “They’re all interconnected. We need to be focusing on strengthening those pathways to the realization to our rights to abortion and also connected to economic justice and the right to health for all.Meghan Doherty, Director of Global Policy, Action Canada for Sexual Health and Rights

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