Could abortion rights be put at risk in Canada?
Posted May 4, 2022 6:40 pm.
Experts in criminal and constitutional law say Canada is well ahead of where the United States is going to be if the leaked Roe v. Wade draft opinion on abortion becomes final.
In the draft, a majority of U.S. Supreme Court justices argued the constitution makes no reference to the procedure and therefore access should be up to the states.
In Canada, abortion is regulated like any other medical service and already falls under provincial authority. But a University of Ottawa law professor said there is one crucial difference.
RELATED: New round of state battles winding up in U.S. after draft opinion
“The difference in the United States is that criminal law is a state-by-state measure, so not only are the states now going to regulate the health procedure but they can impose a criminal ban,” Daphne Gilbert told CityNews in an interview.
Since criminal laws in Canada are made at the federal level, Gilbert explained no individual province could criminalize abortion. However, what a province could potentially do is put barriers in the way of accessing the procedure. A court challenge is underway over New Brunswick’s refusal to fund abortion clinics.
The Supreme Court of Canada decriminalized the procedure in a landmark decision known as R. v. Morgentaler in 1988, deeming the existing criminal code provision unconstitutional. No government in Canada has enacted legislation to replace it.
But at least one federal Conservative leadership candidate, Leslyn Lewis, pledged to introduce new restrictions on abortion if she were to become prime minister.
RELATED: Doug Ford promises to maintain abortion access while other Ontario leaders pledge to expand it
While this country does not have a Supreme Court decision that formally enshrines abortion as a right, Gilbert said she believes it would be “impossible” now for the top court to uphold any criminal prohibition against the procedure.
She pointed to the 2015 decision to legalize medical assistance in dying, which noted peoples’ own values should dictate how they make fundamental decisions about their body.
“If you replace ‘medical assistance in dying’ with ‘abortion,’ you’d use exactly the same language,” Gilbert said.
