Thursday, December 08, 2022

What is the legal status of abortion in Canada?

Concerns are growing about access to abortion in Canada, following the leak of a draft document that suggests US Supreme Court justices ruling south of the border in Roe v. Wade plans to reverse abortion rights.

As it stands, there is currently no Canadian law that explicitly guarantees access to abortion.

Whereas in 1988, abortion in Canada was given the landmark R. v. Morgenteller case, in which a federal law was struck down by the Supreme Court of Canada, no law was ever passed to replace it, and the issue remains an ongoing topic. Is. Political conversation in this country.

To protect abortion rights under all future governments, constitutional law expert and University of Ottawa professor Daphne Gilbert told CTV’s Your Morning that the federal government would have to amend the Charter of Rights and Freedoms. However, she said that is not likely to happen.

“They would have to try to amend the charter to have an explicit right to abortion in the Constitution, and I think that’s a very unlikely scenario,” Gilbert said in an interview.

Gilbert said instead it was more likely that liberals would make good on their election promise to strengthen the Canada Health Act to ensure that provinces would adhere to “equality of access to abortion” nationwide.

In their 2021 election campaign, the Liberals promised to establish rules under the Canada Health Act, which regulates access to sexual and reproductive health services, to make it clear that no matter where a person lives, their Have access to sexual and reproductive health services.

The Liberals also pledged $10 million to Health Canada to establish a portal for sexual and reproductive health information, including combating misinformation about abortion, and youth-led programs focused on the reproductive health needs of young people. Providing funds to organizations.

However, these promises have not yet been fulfilled.

If a party introduces legislation to re-criminalize abortion in Canada in the future, Gilbert said it would be “extremely difficult” for such an attempt to face a constitutional challenge.

Gilbert said that the jurisprudence involving Canada’s Charter cases “has evolved so much” that if the Supreme Court did weigh in, “it would be impossible for me to imagine that they say there is no authority.”


However, the right to abortion in Canada does not exist in the same way that it is enshrined in Roe v. Wade.

Morgentler’s decision in 1988 did not include abortion as a right, but focused on the requirement that a woman must obtain approval from a committee of doctors to perform the procedure legally.

The 5-2 decision ruled that aspect of the procedure was unconstitutional, and effectively removed the criminal penalty for women who had an abortion without consultation.

Justice Bertha Wilson, who was the only woman in court, found that Section 7 which deals with life, liberty, and protection of the individual, along with other parts of the Canadian Charter, affirms a woman’s right to an abortion.

But despite this, no bill has ever been passed to ensure access to abortion into law and is not even considered a constitutionally protected right under the Charter of Rights and Freedoms.

Since Morgentler’s decision, Gilbert noted that Canadian courts have made several decisions regarding the importance of autonomy to make decisions regarding Section 7. A number of opinions have been issued at various levels of the legal system which state that Canadians have a right to create. Fundamental decisions about his life and health, most recently the 2015 Carter Decision that legalized medical aid in death (MAiD).

Gilbert said the right to abortion is no different.

“I think it would be unlikely [given Section 7] Any attempt to criminally regulate abortion could face a constitutional challenge,” she said.

abortion in canada

Abortion is regulated in the same way as other health care procedures in all Canadian provinces. Through the Canada Health Act, Canadians have the right to access sexual and reproductive health services, including abortion.

However, it remains difficult to obtain in many provinces.

Abortion can be performed medically through a pill or other medication taken at home, however, if the fetus is more than 12 weeks old, surgical abortion is required.

According to Planned Parenthood Toronto, there are only 11 clinics in Ontario that offer surgical abortion, most of which are located in the southern region of the province. For example, New Brunswick does not have a single clinic offering surgical abortion.

According to a study published in 2019 by Action Canada for Sexual Health and Rights, no provider in Canada provides abortion services beyond 23 weeks and six days into the pregnancy. People who are still in their pregnancy and looking for an abortion often travel to the United States for the procedure, which would be at risk, Roe v. Wade should be reversed.

While politicians here have insisted that Canada’s abortion law is safe, Gilbert said he is concerned about “reopening this conversation.”

“In Canada, our anti-choice groups are heavily funded by American anti-choice groups and so I hope we are going to see a real concerted effort to negotiate this in Canada,” she said.

Since there is currently no Canadian law that explicitly guarantees access to abortion, Gilbert said, there is “no doubt” that provinces can enforce barriers to abortion access as it is a matter of health care. , something that is provincially regulated.

She notes that limits on how late in pregnancy an abortion can be performed are set in Canada at the provincial or territorial level, and are enforced by the medical community, not the courts.

“Over the years we have overcome many of those barriers, such as requiring a doctor referral to have an abortion or refusing to pay for clinic abortions or out-of-province abortions, but some of these things come back as provincial. issues,” she said.

Because of this, Gilbert said the rollback of Roe v. Wade in the US should be put on high alert to activists, officials, and those who may need an abortion in Canada.

“We could see waiting periods, we could see mandatory consultation scripts, and those are things that I think we have to be very cautious about and not get complacent in Canada,” she said.

Released in 1973, the Roe v. Wade legal precedent protects the right to have an abortion across America.

A draft opinion published by Politico on May 2 showed that a majority of the nine US Supreme Court justices were in favor of overturning the decision. Written by Justice Samuel Alito, the decision would allow individual US states to decide whether to restrict access to abortion and the legal rules surrounding the procedure.

The release of the draft will not immediately affect access to abortion in the US, however, if the majority vote as predicted, the decision will be reversed with the formal release of the court’s ruling, which is likely to take place in June. .

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