Alito

 source: La Presse

author: YVES BOISVERT

translation: GoogleTranslate/doxa-louise

Why the right to abortion is not threatened in Canada

Could it happen here, as well? After all, in Canada as in the United States, the right to have an abortion is based on a decision of the Supreme Court. In Ottawa as in Washington, a new court can repudiate old precedents.

By the way,  Americans are 15 years ahead of Canada in this regard. Until 1988, before the Morgentaler judgment, abortion was a crime in Canada and not in the United States. It was in 1973 that the American Supreme Court had rendered Roe v. Wade, which recognized an absolute right to abortion in the first trimester of pregnancy, and limited restrictions for the other two.

Despite this, and although we should never take anything for granted, the risks of seeing such a reversal happen here are very slim, in my opinion.

The main reason is obviously political. Here, as in the United States, a strong majority supports the right of a woman to have an abortion. This majority generally exceeds 75% in Canada, compared to rates ranging from 60% to almost 70% in the United States. It is therefore practically impossible to win here a federal election where abortion would become an issue, even a secondary one. Ask former Conservative leader Andrew Scheer. The religious lobby exists, but it does not have the same strength as in the United States, far from it, and the subject is taboo even for conservatives.

This means that we are unlikely to see a government put abortion on its legislative agenda. Or even try to "package" the Supreme Court to have Morgentaler revisited. Let's not forget that Stephen Harper had seven of the nine Supreme Court justices appointed at one point. It didn't change anything.

Political considerations aside, the legal context is very different. In the United States, the states have jurisdiction over criminal law. Each of the 50 states has its own penal code. Some provide for the death penalty, others have abolished it, and still others are content not to apply it. Some have decriminalized certain drugs. Others provide for severe penalties in this regard.

Same thing for abortion. In the Mississippi case heard last fall, 26 of 50 states asked the Supreme Court to overturn Roe v. Wade.

If it hadn't been Mississippi, it would have been Texas. Or Alabama. Etc. In short, there is always a state where the conservative political majority can pass an anti-abortion law that will be tested up to the Supreme Court.

In Canada, even if Saskatchewan (say) tried very hard, it has no jurisdiction in criminal law, and therefore cannot undertake a new constitutional battle. This can only come from the federal government.

However, for the reasons I explained above, no government for 34 years has had the appetite for this.

But suppose a hypothetical Conservative government (both Poilievre and Charest are pro-choice) decides to recriminalize abortion in Canada. What would the Supreme Court do?

Here we come to another major difference. The Constitution of the two countries. And the legal theory to interpret it.

It is striking to see how Roe v. Wade is based on historical evidence. The majority of 1973 endeavors to demonstrate that at the beginning of the 19th century, abortion in the first months (before the perceptible movements of the fetus) was not a criminal act . It was only after steps by the American Medical Association that laws were massively adopted to completely ban it, in the second half of the 19th century  .

The Court at the time drew the conclusion that abortion, which dates back to the dawn of time, was a practice deemed benign by the Founding Fathers. To ban it altogether, as nearly every US state did in 1973, would therefore be a violation of privacy, liberty and equality before the law.

Without anyone having pleaded on this subject, the American Supreme Court decrees that for the first three months, the States do not have the right to prohibit abortion; for the second trimester, they can restrict it to protect the health of the mother; and from the moment the fetus is “viable”, States can regulate or even prohibit abortion.

Already at the time, even pro-choicers criticized several approximate aspects of this decision.

The conservative judge Samuel Alito, in his opinion which leaked Thursday, comes to settle accounts with the “progressive” judges of 1973. And he is having fun. It begins by saying that Roe v. Wade has “poisoned political culture for 50 years” – which is not entirely untrue…

I emphasize that the Alito “judgment” is not final. It is a version for internal consumption, but it looks like a final text, with its detailed notes and quotations. It should be noted that never in the two-hundred-year history of the Court had an opinion been leaked. This is extremely serious, and an investigation is open on the author of this leak – probably someone from theinside wanting to create an effect of political protest…

But let's take for granted that it will be the majority judgment, because he is appointed to write the judgment of the Court, and we know that the conservative majority is solid – five or six judges.

Alito, therefore, qualifies Roe v. Wade as “odiously flawed” and “exceptionally weak” judgment. This will justify this exception requiring the Court to follow its own precedents, for the stability of the law.

Then, Alito text remakes the legal history of abortion in his own way. It demonstrates that if early abortion was not always criminalized, it was not necessarily “permitted”. And the 14th constitutional amendment, which guarantees equality before the law, and  on which this "right" to abortion would be based, was adopted in 1868; at that time, states had criminalized abortion. It can therefore hardly be claimed that this “right” is implicit, if the amendment has been adopted by States prohibiting abortion. This right has therefore never existed, even implicitly, he concludes.

In the Supreme Court case, Mississippi bans abortion after 15 weeks.

Conclusion of Judge Alito for the majority: this is a matter for elected officials, as long as the restrictions are rational. For him, 15 weeks seems a reasonable threshold. Let each state make its own laws, as with all criminal subjects. It is not a question of women's rights, he says: it is certainly a medical procedure applying only to women, but there is nothing we can do about it. He adds that women are free to vote, moreover they do not deprive themselves of this right: they are more numerous  proportionally on the electoral lists.

The 1988 Canadian judgment is very different. It doesn't bother with historical developments to find the hidden intent in the Bill of Rights – which was then… six years old.

Essentially, the 'crime' of abortion violates a woman's right to liberty and security, says Judge Bertha Wilson. This crime subjects the reproductive capacity of Canadian women to state-enacted rules. It imposes on them a philosophical, if not religious, conception. It is therefore also a violation of their freedom of conscience. And that is why it was invalidated.

This does not mean that all legislation on the subject is prohibited. The Court left open the possibility of restricting this right in the final stages of fetal development – ​​something Ottawa carefully avoided doing, relying on medical ethics.

But be that as it may, the Morgentaler judgment is more firmly established legally than Roe v. Wade – although, theoretically, with the notwithstanding clause, a government can suspend sections of the Bill of Rights.

We would be hard put to identify anti-abortion judges in the current court, so much the subject is under the  radar in Canada.

True, in practice, access to abortion is not easy everywhere in Canada. Also true, religious groups here are politically and socially active.

But nothing on the horizon here allows us to seriously fear an American-style legal reversal.