Could abortion be criminalized in Canada?

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This article was published 02/05/2022 (970 days ago), so information in it may no longer be current.

The United States Supreme Court appears set to overturn its landmark decision in Roe v. Wade, which found women have a constitutional right to choose to have an abortion.

That’s according to a draft decision from the Republican-appointed majority of the court obtained by Politico, with the final ruling expected in June.

Should that happen, states — especially those that have already imposed numerous restrictions on abortion access — could pass laws making access even more restrictive, or making the procedure illegal outright.

That leads to questions about the differences between abortion access in Canada and the United States, and whether the procedure could ever be illegal here.

It’s important to understand how criminal laws are made in the United States versus in Canada.

“The single biggest difference” is that criminal law is the purview of each individual state in the United States, whereas in Canada criminal law is the purview of Parliament, said University of Ottawa law Prof. Carissima Mathen.

In order to make abortion illegal in Canada, the federal government would have to introduce a bill to that effect, which would need to pass both Houses of Parliament.

“So there would only ever be one criminal law regarding abortion in Canada, whereas in the States you can have 50,” she said.

Could a Canadian government make abortion illegal?

It’s “maybe a finer question” to ask whether the Canadian Charter of Rights and Freedoms would prohibit all possible restrictions on abortion, Mathen said.

But a law resembling those in some American states that severely restrict access “I think would be manifestly unconstitutional. I don’t think that those kinds of laws would be possible in Canada,” Mathen said.

University of Waterloo law Prof. Emmett Macfarlane agreed, saying upholding such a law would be “a complete rupture” of how the Supreme Court of Canada has approached the rights to life, liberty and security of the person.

“It would take a dramatic overhaul of the personnel on the Supreme Court and a dramatic overhaul of the jurisprudence for any of these vicious anti-abortion laws to be upheld as constitutional,” he said.

“It would be a revolutionary development, and not something that could happen overnight.”

What are the chances a federal government would try anyway?

At least one candidate for leadership of the Conservative Party of Canada, Leslyn Lewis, has promised new restrictions on abortion if she were to become prime minister.

“Without being complacent about it, I think it would take a further shift, a further dramatic rightward shift, for a major party like the Conservatives to suddenly decide they were going to pursue this,” Macfarlane said, noting Lewis is not currently the front-runner in the leadership race.

“It would be a huge in-party fight and I think it would dramatically reduce the viability of a Conservative government.”

Interim Conservative Leader Candice Bergen said Tuesday the party would not introduce legislation on abortion.

The U.S. Supreme Court will be overturning one of its own decisions if it strikes down Roe v. Wade. Couldn’t the Supreme Court of Canada do the same some day?

Canada’s top court struck down the country’s criminal law on abortion — which limited where and under which circumstances the procedure could be performed — in a landmark decision known as R. v. Morgentaler in 1988. Since then, there have been no criminal laws regarding abortion in Canada.

Overturning itself on that decision seems unlikely, Mathen and Macfarlane said. Canada’s court has not been plagued by the same kind of partisanship found on the American court, they noted, where there are often two entrenched camps, with many of the Republican-appointed justices voting against arguments in favour of abortion access and same-sex marriage.

Mathen highlighted the example of Canada’s court ruling unanimously in favour of striking down the criminal prohibition on medical assistance in dying, in a 2015 case called Carter v. Canada. By doing so, the court was overturning itself, departing from a 1993 ruling that had kept the ban in place.

“The Supreme Court is always free to depart from its prior rulings, as it did in the Carter case, but it’s rare for them to overturn themselves and go back on rights,” she said. “Often when it overturns itself, it’s to recognize something as being protected by the Charter.”

The legal profession in Canada is also less polarized than in the United States, meaning it would be a struggle for any prime minister to find a number of hardline social conservatives to appoint to the top bench, Macfarlane said.

“Our court is far less polarized along ideological grounds. It’s explicitly non-partisan, and it has a much healthier and more legitimate culture as a result,” he said.

“The U.S. Supreme Court, in my expert view, is thoroughly delegitimatized. It cannot be regarded as simply a court of law. It is inherently a partisan institution.”

But could access to abortion be further restricted in Canada, even if the procedure remains legal?

Yes. Restrictions already exist in some provinces, as they have jurisdiction over health care. Some of those restrictions are the subject of ongoing court challenges.

“Provinces can put obstacles in place to abortion because they control the framework in which the medical service of abortion is provided,” Mathen said.

“And the courts have generally struck those down, and some provinces haven’t taken that signal, or they’ve made changes around the edges.

“But what provinces absolutely cannot do is they cannot simply prohibit abortion in the way that Parliament could try to do by criminal legislation.”

A regulation enacted by the New Brunswick government limits funding for abortions to three hospitals in two cities — which led the federal government to withhold a small portion of the province’s health-care funding last year. The Canadian Civil Liberties Association is challenging the regulation in court.

The restrictions mean people seeking abortions have to go through the “onerous” process of travelling potentially long distances, taking more time off work, and incurring extra expenses while already dealing with what may be a stressful situation, said Cara Zwibel, the CCLA’s director of the fundamental freedoms program.

“Fundamentally, it’s about access,” she said. “This is health care, and what our challenge is about is why would we treat this health service so differently from other health services?”

Prince Edward Island didn’t perform abortions at all for almost 35 years. During that time, the government would pay for women to have the procedure out of province, but required them to cover their own travel costs.

P.E.I. began offering abortions again in 2017 in the face of a constitutional challenge, but also limits funding to one hospital.

“In the U.S., the fight has been against criminal bans on abortion,” Macfarlane said. “In Canada, the fight has been a right to funding and access as a matter of health care at the provincial level.”

Jacques Gallant is a Toronto-based reporter covering politics for the Star. Follow him on Twitter: @JacquesGallant