To put a spin on an oft-used phrase, an apt retort to the current legal developments of our southern neighbours ought to be: “the courts gave and the courts have taken away.” That encapsulates the demise of Roe v Wade. A seven justice majority granted the American people the constitutional right to obtain a pre-viability abortion in 1973 and nearly 50 years later, the very same Supreme Court overruled that grant in Dobbs v Jackson Women’s Health Organization.
There was a time in Canada that abortion was a criminal offence unless a hospital-affiliated “therapeutic abortion committee” had granted approval for the procedure. It was only in 1988 that the Supreme Court of Canada invalidated that provision in R V Morgentaler, stating that it violated Section 7 of the Charter of Rights and Freedoms. However, that decision did not state that a right to abortion existed in the Canadian constitution.
Given this, and recent events south of the border, it is important to understand the extent to which abortion rights in Canada are safe from legislative curtailments. The answer is that they never are.
The Canadian constitution confers no right to an abortion. Moreover, a properly crafted abortion law could survive constitutional scrutiny under Section 7. This makes it even more imperative that the pro-choice movement continues to press and defend the rights in Canada today.
The first reason for the insecurity of abortion rights is that the Charter does not confer the right to obtain an abortion. We in Canada have the unique benefit of only having to go to 1982 to understand what the constitution was supposed to mean. The evidence is clear; abortion is mentioned nowhere in the Charter.
Moreover, the framers of the Charter testified before a parliamentary committee that Section 7 — which guarantees that no one’s “life, liberty, or security of the person” will be deprived “unless in accordance with the principles of fundamental justice” — was meant to only protect procedural guarantees, not substantive rights, as the right to abortion would be. Substantive rights are essentially basic human rights, whereas procedural guarantees are merely guarantees that ensure that the law is administered fairly. In that sense, the Charter doesn’t ensure the right to an abortion.
Further, the language of Section 7 was precisely chosen. The language was meant to narrow the scope of the provision so as to ensure it did not attain the broad application of the American constitution’s Due Process Clause, on which Roe v Wade was founded.
Given that anyone who interprets the Charter must begin with the purpose of the provision, it is clear that the purpose of Section 7 was a narrow procedural guarantee. Abortion falls outside that mandate.
While it is true that Canadian courts have expanded the scope of Section 7 far beyond its original meaning, this does not alter the fact that, in my opinion, the charter does not grant the right to an abortion.
Even if one were to disagree with my above assertion, the fact still remains that the charter grants governments the ability to reasonably limit one’s rights. Generally, a law must have a “pressing and substantial objective,” be “rationally connected” to that objective, be minimally impairing of the right, and be proportionate in its effects in order to limit someone’s rights. A properly tailored abortion regulation could be justified as a reasonable limit.
Assuming that the protection of viable fetal life is an adequate government interest, an anti-abortion law would merely need to outlaw post-viability abortions with exception for rape, incest, or the health of the mother. Such a law would clearly rationally relate to the interest in protecting post-viable fetal life. Further, there is a strong case that such a regulation is minimally impairing.
Indeed, post-viable abortions represented approximately only 4.4 per cent of all Canadian hospital abortions in 2020, excluding in Quebec. The existence of numerous exceptions also indicates that the regulation would be minimally impairing.
Finally, it would be a proportionate impairment. Most women know they are pregnant around six weeks after conception and most fetuses become viable at 23 weeks. Hence, the viability line affords women a “reasonable opportunity to choose.” This, coupled with the existence of numerous exceptions, is strong support that such a regulation would be a proportionate measure.
In short, a properly constructed abortion regulation, regardless of the existence of a constitutional right to an abortion, could survive scrutiny.
The preceding discussion of the weaknesses of the Canadian abortion landscape should not be construed as an endorsement of the aforementioned avenues to restrict abortion access, but rather a warning. Abortion rights are never safe. It is important that the Canadian pro-choice movement, myself included, not repeat the mistakes made by our American counterparts.
The American pro-life movement never ceased fighting for the reversal of Roe v Wade. While the pro-choice side focused on national races, the pro-life side focused on state legislature races, chipping away at abortion rights at the state level. Trump appointed only one less appeals court justice in his one term of presidency than Obama did in two. Those opposed to abortion rights were tenacious in their pursuit of the cause. It is imperative that the pro-choice movement act the same.
We cannot, and should not, rely on unelected judges to protect the current state of abortion rights in Canada. We cannot be complacent. We cannot be lazy. We should not demonize the other side. It is our duty to convince our fellow citizens. It is our duty to vote. It is our duty to continue to push for gains in abortion access.
If the Canadian pro-choice movement is to have any hope of staving off a possible push to limit abortion rights, it is through the political process, not the legal one, where we will succeed.
Nicholas Heinrich is a 2L student at the University of Toronto Faculty of Law.