The recent leak of a draft decision by the United States Supreme Court that overrules the iconic abortion rights case Roe v. Wade has reignited the abortion conversation in Canada. If the draft of Dobbs v. Jackson Women’s Health Organization becomes the final decision, it will be a devastating blow to women in large swaths of the US—and it casts an ominous shadow here in Canada. It is vital for us to focus on the legal, political and societal differences between our two countries and be vigilant to not only preserve but enhance access to reproductive services.
Canada’s Roe v. Wade is the 1988 decision by our Supreme Court in R v. Morgentaler. By performing abortions in his clinic, Dr. Henry Morgentaler provoked his prosecution under Section 251 of the Criminal Code which prohibited abortions unless they were performed in a hospital with the approval of a therapeutic abortion committee. Dr. Morgentaler argued Section 251 was a violation of Section 7 of the Charter. In particular, he emphasized that women had a security of the person interest in making fundamental decisions based on their own values and life circumstances.
The crux of the case revolved around the rules that governed the exception to a ban on abortion. The Criminal Code did not require hospitals to establish therapeutic abortion committees and many did not, leaving pregnant women in many parts of Canada with no one to ask permission of. The Code did not spell out the criteria for granting permission and it varied greatly. Some committees imposed gestational limits, some only considered life-threatening pregnancies and others were more forgiving.
The inequality in accessing what was essentially a defence to a criminal offence was unacceptable in a country with a national Criminal Code. The court in Morgentaler struck down Section 251, leaving us with no criminal law regulation of abortion. Despite one subsequent unsuccessful attempt to recriminalize abortion by the Conservative government of Brian Mulroney, abortion is treated as a medical service and administered by the provinces under their constitutional health care authority. We are the only country in the world with no criminal law regulation of abortion.
In the years since Morgentaler, access to abortion remains a challenge in many parts of Canada. Until 2016, women in Prince Edward Island had to leave home and travel to another province for an abortion. Only seven years ago New Brunswick finally stopped requiring referrals by two doctors before a woman could receive an abortion. Many provinces have refused over the years to pay for abortions outside of a hospital.
New Brunswick is currently the subject of a court challenge by the Canadian Civil Liberties Association for not complying with the Canada Health Act and only funding hospital abortions. New Brunswick’s only clinic requires payment out of pocket. As one might expect in a country with its population overwhelming huddled in the south, along the border of the United States, access in rural, remote and northern communities is patchy. It is also difficult to find services for “late-term” abortions—those that happen after 24 weeks gestational age. Those abortions are often the most heartbreaking and poignant as they follow a diagnosis of severe fetal anomalies incompatible with life or life-threatening complications for the pregnant woman.
The dearth of available family physicians means many Canadians do not have a primary health care provider. This can mean that women do not have accurate (or any) information on contraception, may not know they are pregnant until after their first trimester, or have inadequate prenatal care that fails to identify early risks. Only some provinces have “bubble zone” legislation that forbids protests within a certain range of abortion clinics or staff homes. Conservative members of various governments regularly introduce criminal law measures that could lead to further restrictions on abortion by a “back door.” Failed efforts to define when life begins, criminalize an attack on a pregnant woman with a separate offence for injuring or killing her fetus, bans on “sex selective” abortion and other measures were all aimed at granting independent legal status to a fetus—a precursor to regulating abortion.
Abortion continues to be stigmatized and abortion providers face both reputational and security risks. The stigma around abortion is exacerbated by physicians and institutions who claim a Charter-protected right to object to providing services on religious or conscience grounds. Provincial responsibility for the delivery of health care has produced a patchwork of options to accommodate religious and conscientious objectors. In Manitoba, for example, objecting physicians are permitted to refuse to refer a patient to a non-objecting colleague. In Alberta and Québec, a “self-referral” model prevails where patients can contact a centralized referral service if their own physician refuses. Ontario has the most robust system, requiring an “effective referral.” Policy 2-15 states:
Where physicians are unwilling to provide certain elements of care for reasons of conscience or religion, an effective referral to another health care provider must be provided to the patient. An effective referral means a referral made in good faith, to a non-objecting, available, and accessible physician or other health-care professional, or agency. The referral must be made in a timely manner to allow patients to access care. Patients must not be exposed to adverse clinical outcomes due to a delayed referral. Physicians must not impede access to care for existing patients, or those seeking to become patients.
In 2019, a legal challenge to this policy was unanimously rejected by the Ontario Court of Appeal. The challenge by a group of physician advocacy organizations and individual doctors listed several objectionable services including medical assistance in dying (MAiD), abortion, contraception (including emergency contraception, tubal ligation, and vasectomies), infertility treatment for heterosexual and homosexual patients, prescription of erectile dysfunction medication, and gender re-assignment surgery. The court accepted that these issues are difficult for patients to raise and discuss and noted that it “is impossible to conceive of more private, emotional or challenging issues for any patient.” Abortion …“carr[ies] the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.”
When one considers all of the barriers to abortion access in Canada, it is safe to say that while it is legal, it is an elusive right for thousands of women every year. The greatest impact that the American reversal on abortion rights might have here is in the propaganda war that is sure to ramp up. Anti-abortion groups will feel rightly empowered by the overturning of Roe v. Wade and the Canadian offshoots will no doubt bring the campaign home. There are three ways that pro-choice advocates can combat the coming wave of publicity.
First, we must firmly centre the abortion rights discussion as one that is legally settled in Canada. Abortion is a medically necessary service, regulated by the provinces as health care and constitutionally protected not only by the decision in Morgentaler but by the language of subsequent Supreme Court case law on Section 7 of the Charter. In the 2015 decision in Carter v. Attorney General of Canada, which legalized MAiD, the court describes a constitutional right to make fundamental life choices without interference from the state. The word “abortion” could be transposed for “MAiD” and the argument would remain the same. It is inconceivable that were a government to criminalize abortion now it could survive a Charter challenge.
Second, the increasing reliance on medical abortion (abortion by way of medication taken orally) places control over abortion directly in the hands of women. Medical abortions make up around 40 percent of all abortions in Canada. While they are only available to women whose pregnancies are at less than 11 weeks gestational age, the privacy of taking pills in one’s own home and the fact that visits to clinics are unnecessary greatly improves access in places where surgical abortion services are precarious. We must ensure that family physicians are aware of medical abortion as an option and that pharmacies stock the medication.
Finally, we must shift the paradigm on abortion access from focusing solely on decision-making to seeing it as an equality issue for women. Morgentaler was decided on the basis of Section 7, without reference to Section 15 of the Charter which protects against discrimination on the basis of sex. Canada long ago decided that pregnancy discrimination is sex discrimination. Denying access to abortion is sex discrimination, too. Describing it that way allows us to broaden the conversation to how we can alleviate the burden that pregnancy and child-rearing places on women. We could discuss sex education, contraception, infertility treatments, pregnancy, childbirth, child care, family supports and abortion, all with an equality lens that ensures women do not bear the full weight of their biology.
The long shadow cast by the US Supreme Court need not envelop Canadians. We must not be complacent about our rights but instead ensure robust protections for access to abortion and other reproductive services. It is a matter of justice and equality for women.
Daphne Gilbert is a Professor of Law at the University of Ottawa. She teaches criminal and constitutional law and her research focuses on reproductive health and justice and MAiD. She serves on the Boards of two international reproductive rights organizations, Women Help Women and Fòs Feminista Canada. She is also on the national board of Dying With Dignity Canada. Follow her on Twitter @daphnegilbert.