The revelation, via a leaked draft (Gerstein and Ward, Reference Gerstein and Ward2022), that the Supreme Court of the United States was going to overturnFootnote 1 the landmark decision in Roe v. Wade (1973) sparked immediate questions about whether a similar retrenchment of abortion rights could occur in Canada (Gallant, Reference Gallant2022). The constitutional status of a right to abortion under the Charter of Rights and Freedoms is somewhat unclear, at least to the extent that the famed R. v. Morgentaler (1988) case did not establish a right to abortion per se. Only Justice Bertha Wilson, then the lone woman on the Supreme Court of Canada, found a right to abortion within the ambit of section 7's right to life, liberty and security of the person (as well as within freedom of conscience), while the rest of the majority limited their reasons to narrower procedural grounds. Yet the Charter's jurisprudence has evolved considerably since 1988 and in ways that likely serve to make constitutional protections for abortion more robust. Further, a set of important structural and political cultural factors mitigate the forces of American-style judicial polarization on the Canadian Court and lower the odds that partisanship and more overt ideological considerations will swamp the judicial appointments process. In short, the prospect of anything resembling a criminal “ban” on abortion is remote.
Despite this generally optimistic comparative context, the identification of these various protective factors should not instill a complacency that Canada is immune from the erosion of norms that threaten the collapse of US abortion rights. In light of the need to remain vigilant, this short Currents article canvasses these factors as crucial not only to preserving the policy status quo in criminal law (that is, the absence of criminal law abortion regulation in Canada) but also in advancing the scope of abortion rights in the positive sense, since serious barriers to access persist at the provincial level (Erdman, Reference Erdman2007; Johnstone and Macfarlane, Reference Johnstone and Macfarlane2015; Johnstone, Reference Johnstone2017).
The most important legal factors in the protection of abortion rights remain the Charter and the Court itself.Footnote 2 There are reasons to believe that most of the justices of the contemporary Court would now recognize substantive abortion rights within the ambit of the Charter, in line with Wilson's lone 1988 concurrence. Section 7 was subject to an expanding understanding of the principles of fundamental justice that animate the right to life, liberty and security of the person. The Court has since recognized “overbreadth” and “gross disproportionality” as fundamental principles (the law in Morgentaler was found to be “arbitrary”), meaning laws deemed to be overly broad in application or that result in harms so disproportionate to their objectives that they cannot be supported if they conflict with section 7 rights. The Court has employed these various principles to prevent the closure of InSite, Vancouver's safe consumption site (Canada v. PHS Community Services Society, 2011) and to strike down criminal laws indirectly prohibiting prostitution (Canada v. Bedford, 2013) and prohibiting assisted suicide (Carter v. Canada, 2015). The liberty interests connected to bodily autonomy and the harm principle rooted in security of the person and the right to life have been central to these more recent cases.
Section 15's equality rights may also play a fundamental protective role, not only in preventing unreasonable criminal law regulation of abortion but also in reducing discriminatory barriers in the delivery of health care. Canadian courts have always recognized that section 15 protects a substantive, rather than formal, understanding of equality (Andrews v. Law Society of British Columbia, 1989). Recent cases have pushed this substantive understanding of equality further, analyzing not only the purpose of policy but also its effects, even in cases where the overall impact of the impugned policy is already ameliorative in nature (Quebec v. Alliance, 2018; Fraser v. Canada, 2020). Provincial policies—and even provincial inaction—that result in abortion services being targeted for special restrictions or inadequate funding may be recognized as constituting systemic discrimination. In short, section 15 may not permit the unequal provision of an inherently gendered medical service in the broader context of a publicly insured health care system predicated on delivering core medically necessary services (Macfarlane and Johnstone, Reference Macfarlane and Johnstone2021). These provisions of the Charter provide a much stronger textual basis for protecting abortion than the underlying rationale in Roe, which relied on finding a right to privacy implied in the “penumbras” of various numbered amendments.
Yet the broadly worded provisions of the Constitution, including the Charter, remain open to interpretation, and it is well established in political science that interpretative discretion is informed at least in part by the ideology of the justices on the Court (Ostberg and Wetstein, Reference Ostberg and Wetstein2007; Macfarlane, Reference Macfarlane2013). This is especially true in relation to highly salient policy issues and particular constitutional provisions, like equality rights (Sealy-Harrington, Reference Sealy-Harrington2021). Motivated prime ministers, who hold the power of appointment, might attempt to upend established jurisprudence by appointing like-minded justices. Indeed, this is precisely the outcome in the US context, featuring the end product of decades of pitched partisan battles over Supreme Court appointments. The result is a polarized and nakedly partisan institution (Devins and Baum, Reference Devins and Baum2019).
In the Canadian context, the effects of partisanship and ideology on the appointments process are subtle and nuanced. There is some evidence that party of appointment influences the policy-making outcomes of individual Supreme Court justices, but these are “relatively modest” and there is “considerable variation” among justices appointed by the same party (Songer, Reference Songer2008: 196). Overall, “the party of appointing prime minister has a limited or heavily conditional impact on judicial behaviour, at least from a straightforward ideological perspective” (Macfarlane, Reference Macfarlane2018: 6).
Institutional and political cultural factors have prevented the Canadian Supreme Court appointments process from becoming politicized or partisan. First, there is no legislative confirmation process for executive appointments. Opposition parties have adhered to a strong norm against criticizing or objecting to the selection made by the prime minister. Even the relatively recent adoption of having appointees appear before a parliamentary committee to answer questions has generally avoided overt partisanship. Andrea Lawlor and Erin Crandall (Reference Lawlor and Crandall2015) find that MPs do not ask questions about the policy preferences or personal beliefs of appointees. Questions about past or potential cases are verboten. The only evidence of partisanship seeping into committee appearances are opposition attempts to broach topics that may be embarrassing to the appointing government (such as questions to appointee Michael Moldaver concerning his lack of bilingualism).
Second, the introduction of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments in 2016, which submits a short list of names for the prime minister's consideration, further shields appointments from overt partisan or ideological considerations. Under the previous, long-standing system, lists of candidates were developed by political staff in the Prime Minister's Office or under the direction of the minister of justice. The new process mitigates partisan considerations by having the full short list developed by the advisory board, a majority of whose members are appointed by nonpartisan bodies such as the Canadian Bar Association and Canadian Judicial Council. Since the new process was established, the prime minister has consistently made appointments from the advisory board's list.
Third, a broader cultural factor is the relative lack of polarization within the Canadian legal community and within law schools. The progressive “living tree” approach to Charter interpretation is virtually monolithic among Canadian jurists, and only a handful scholars adopt an originalist understanding of the Constitution, something often affiliated with (incorrectly, according to some) a view to rolling back rights (Oliphant and Sirota, Reference Oliphant and Sirota2016; Froc, Reference Froc2015). An entrenched, organized conservative legal movement in the United States, via organizations like the Federalist Society, “has undertaken a concerted effort to engage with and transform American legal culture directly within law schools against what is regarded as a dominant liberalism” (Macfarlane, Reference Macfarlane2018: 16; see also Teles, Reference Teles2010). There is no equivalent movement in Canada.Footnote 3 Nonetheless, the recent controversy in the Law Society of Ontario (LSO) over the adoption of a statement of principles (SOP) that would have required lawyers and paralegals to acknowledge “their obligation to promote equality, diversity, and inclusion” resulted in a conservative backlash, including a Stop SOP movement as part of the LSO benchers’ election. While one incident does not entrench ideological polarization within the legal community, it does indicate its potential.
However, the best empirical evidence available for assessing the supply of judicial candidates who would adopt a considerably different judicial posture to the Charter, let alone roll back existing jurisprudential supports for abortion rights, are outcomes among appointees of the most recent Conservative prime minister, Stephen Harper, who was widely regarded as desirous of conservative appointments. Studies demonstrate the difficulty Harper had appointing like-minded justices, as his government achieved an impressive losing record before the Supreme Court in highly salient cases even after appointing a majority of its members (Macfarlane, Reference Macfarlane2018; Hennigar, Reference Hennigar2017).
Finally, what factors might inhibit the erosion of political norms that would lead to attempts to criminalize abortion in Canada or to reduce delivery of abortion services at the provincial level? Public opinion on abortion is one important context. Comparative polling shows much stronger support for abortion access in Canada than the United States. For example, one Abacus survey shows that 69 per cent of Canadians view abortion as morally acceptable, compared with 43 per cent of Americans (Anderson and Coletto, Reference Anderson and Coletto2016). More recent data from 2020 show that nearly 90 per cent of Canadians agree or strongly agree that abortion is a health issue, not a moral one, with only 1 per cent strongly disagreeing (Thomas, Reference Thomas2022). In the last three years, support for abortion in Canada has only increased, and a March 2022 poll shows that 56 per cent of Conservative Party voters prefer that the next leader support abortion rights (Fournier, Reference Fournier2022). Canadians are far less divided than Americans over abortion policy.
It also remains the case that major parties in Canada wishing to form government must seek relatively wide appeal and avoid adopting an overly narrow ideological posture. This does not mean that Canada is not susceptible to a push toward a more extreme right-wing politics. The rise of the far-right Peoples’ Party of Canada and the support among some prominent Conservative Party members for the recent convoy protests opposing pandemic measures are illustrative of that threat. Yet electoral incentives are a key reason the Conservative Party has consistently maintained that it would not seek to upend the status quo on abortion policy, a promise that interim leader Candice Bergen repeated the day after the US Court's leak (Walsh, Reference Walsh2022). And while abortion service delivery is spotty at best in many provinces, there is no evidence of recent attempts to curtail access; in fact, important barriers in New Brunswick were lifted in recent years (Macfarlane and Johnstone, Reference Macfarlane and Johnstone2021), and service finally came to Prince Edward Island in 2017.
Where the fight in the United States is over outright bans on abortion, the fight in Canada has been about improving funding and access, and these respective rights battles have been moving in opposite directions. Yet to preserve and enhance abortion rights in Canada, vigilance is needed to protect the nonpartisan structures and culture surrounding Supreme Court appointments. A more challenging task will be to combat the forces of far-right politics that seem to be emerging within the party system and society. Abortion rights are relatively well protected in the Canadian context. The Charter is not the Bill of Rights, and the Canadian Court is not the American Court. Nonetheless, it is important to remember that rights are neither static nor self-enforcing; they are subject to political and cultural shifts and rely on institutional and normative safeguards.
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