OTAWA – After the U.S. Supreme Court overturned its 1973 Roe v. Wade ruling on Friday – a ruling that for decades guaranteed a woman’s right to an abortion in the United States – liberal politicians across the border rushed to suggest that Canadians should not take their freedoms for granted. “No country in the world, including Canada, is immune to what is happening in the United States,” said Secretary of State Mélanie Joly, as other ministers and lawmakers issued similar warnings. Prime Minister Justin Trindade has repeatedly said that every woman has the right to an abortion in Canada, promising on Friday to defend those rights. But in a country that does not have a legal framework governing abortion, what does that really mean – and why do abortion rights advocates urge Trinto to avoid enshrining this right in law, once and for all? Here’s what you need to know. What is the legal status of abortion in Canada? Abortion has been legal in Canada since 1988, when the Supreme Court ruled in R. v. Morgentaler that a law criminalizing abortion was unconstitutional. Following a 1969 reform under the liberal government of Pierre Trudeau, Article 251 of the Penal Code narrowly allowed abortions in cases where a committee considered a woman’s health or life to be in danger but continued to punish healthcare providers. and women themselves to participate in other abortions. In a 5-2 decision, the court upheld the acquittal of abortion lawyer Henry Morgentaler and overturned the existing law. “Forcing a woman, with the threat of criminal punishment, to carry an embryo to the end, unless it meets certain criteria that are not related to her own priorities and aspirations, is a deep intervention in a woman’s body and, consequently, a breach of security. of the person”. the opinion of the majority of Supreme Court Justice Brian Dickson. Today, abortion falls under provincial health care systems as a medical procedure, which means that access to the procedure varies considerably from place to place. Why did the Parliament not pass a law? The decision of the Supreme Court left a legal gap, so he threw the ball back to the court of the Parliament to see if some “reasonable limits” should be applied. Under Brian Mulroney’s majority Progressive Conservative government, the House of Commons passed a law in 1990 criminalizing abortion unless a doctor felt that a woman’s life or health might otherwise be threatened. But the bill died in the Senate, where the vote came in a rare tie. No government has since attempted to legislate on the issue. Is anyone talking about introducing an abortion bill today? In Morgentaler, the Supreme Court did not explicitly state that access to abortion is a fundamental right – and no other Canadian court has said so since. When a leaked copy of the decision to oust Roe v. Wade was released in May, reporters asked Trudeau if he would consider putting legislation on the table to secure such a right. He left open the possibility, but said his government wants to prevent a situation where rights will be abolished by future governments or court decisions. “Maybe it’s legislation, maybe it’s not legislation, maybe it leaves it in the hands of the Canadian Medical Association, which has been managing these procedures for a long time,” Trinto said at the time. The only federal abortion legislation introduced in recent years was Conservative private bills that would ban certain types of abortions or criminalize the killing of a fetus during an attack on a pregnant woman. Such bills have not passed. What is the case against the formal guarantee of the right to abortion? Experts and advocacy groups have strongly criticized the idea of creating any kind of stand-alone law on abortion, saying it could lead to a host of side effects. “We do not have specific legislation for hip replacement or other medical procedures, so why do we need one for an abortion?” said Julia Tétrault-Provencher, chair of the National Coordinating Committee of the Working Group on Reproductive Rights of the National Women’s Union and the Law. Even if the law merely established abortion as a right, its publication in the books could open the door to more restrictive amendments by future governments, they argue. “We have seen that the power of very small but vocal groups against elections and conservatives can have a huge impact and we just do not know what the country will be like in the future,” said Jill Doctoroff, executive director. of the National Abortion Federation of Canada. “Once a new law is passed, lawsuits will be filed to test its constitutionality,” said Daphne Gilbert, a law professor at the University of Ottawa. court. Federal legislation could also spark a debate on the distribution of powers and give provinces the bandwidth to talk about regulating or limiting abortions in a bigger way, Gilbert said, which could jeopardize the hard earnings of supporters. “There is absolutely no advantage and a lot of disadvantages.” Are there alternatives to the legislation? While supporters are urging Trinto to keep his dust dry on the legislative front, they still want his government to be proactive in improving access to abortion in Canada. In 2021, the Liberals pledged $ 45 million over three years to improve sexual and reproductive health support, information and services, which Tétrault-Provencher said should become a permanent fund. Under Canada Health Act, Ottawa has the power to revoke provincial health transfers when provinces provide insufficient access to services. The Trinto government has already done it on a small scale, withholding $ 140,000 from New Brunswick because it failed to provide funding for abortions at a Fredericton clinic – but Gilbert said that was not enough. “These are the peanuts in an overall health budget. I think they could boost the carrot and the regulatory stick.” This Canadian Press report was first published on June 27, 2022. – With archives from Adina Bresge in Toronto Marie-Danielle Smith, The Canadian Press
