As January draws to a close, it’s worth noting that twenty years ago this month, the Supreme Court of Canada released R. v. Morgentaler, its landmark decision decriminalizing abortion. By coincidence, it was exactly 35 years ago this month that the U.S. Supreme Court decided Roe v. Wade, that country’s landmark abortion case.
There’s a difference between the two decisions that may explain why the debate over abortion has been somewhat less politicized on the northern side of the border. In the United States, it seems as if all candidates for office and judicial appointees must declare their views on abortion as a matter of course.
In Canada, the debate is no less contentious, but it doesn’t seem to dominate political discourse nearly as much as in the U.S.
Maybe that’s because R. v. Morgentaler came 15 years after Roe v. Wade.
At a recent lecture at the University of Ottawa, law professor Daphne Gilbert explained that the Canadian court made its decision to declare unconstitutional the old law governing abortion “on a minimal basis, probably learning a lesson from the politicization of Roe v. Wade.”
Where the American decision explicitly made reference to a woman’s right to choose to have an abortion, the majority decision in the Morgentaler case struck down the old law on the very narrow definition that the law endangered the health of the pregnant woman. It did not make any reference to a woman’s personal autonomy.
Except in Justice Bertha Wilson’s concurring opinion, where she wrote:
“The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience. I do not think there is or can be any dispute about that. The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe… that in a free and democratic society it must be the conscience of the individual.”
Bertha Wilson’s argument did not win the day and the decision did not enshrine the principle of choice in Canadian law. But by striking down the old law, the court created a de facto legalization of abortion. In fact, in the last twenty years, Canadian politicians have been unwilling or unable to pass a new law governing the procedure.
Pro-choice advocates say that is a good thing: A new law is not needed to govern a medical procedure. But they also argue that choice in Canada is limited by a lack of access to safe abortions in many places across the country.
Many of those opposed to abortion would like to see a new law, and the 1988 Supreme Court decision certainly left the door open for one. Indeed, the minimalist decision “could, at first, have seemed like a boon to the anti-abortion movement,” said professor Gilbert.
“But that political movement has not benefited from it in 20 years.”
Two decades later, the debate goes on, mostly outside of the Parliament of Canada.
In fact, I produced a televised debate on this topic just a few days ago. You can watch it online here.