Dobbs v. Jackson Women’s Health Organization
On June 24, 2022, the Supreme Court of the United States held in Dobbs v. Jackson Women’s Health Organization that the U.S. Constitution does not confer a right to abortion. In the future, laws regulating abortion should be made by the people through the ordinary democratic process.
In reaching this decision, the court overturned Roe v. Wade, a case decided by the court in 1973, which held that the U.S. Constitution conferred a broad right to obtain an abortion. The court also overturned another decision, Planned Parenthood of Southeaster Pa. v. Casey, which upheld Roe on the basis of stare decisis, which is a legal doctrine that generally requires a court to follow its prior legal decisions.
The majority opinion in Dobbs found that the decision in Roe was “egregiously wrong from the start”. The majority noted the constitution does not make any reference to abortion. While defenders of abortion rights had argued that the constitution implicitly protects the right to abortion, such an implicit right would have to be “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty”, which abortion was not. As for the doctrine of stare decisis, which was pivotal in Casey, the majority observed that the doctrine does not compel unending adherence to the “abuse of judicial authority” manifested in Roe.
Stare Decisis – Should Courts Follow their own Decisions?
Some commentators have criticized the U.S. Supreme Court for not applying the doctrine of stare decisis in the Dobbs decision. This doctrine means that lower courts are bound by the decisions of higher courts. The doctrine also generally means that courts should follow their own prior decisions, but there are exceptions to this rule. In Canadian courts, this rule is most likely to be relaxed in cases where the issue at stake is constitutional and the court is one of final jurisdiction, such as the Supreme Courts of Canada. The reason for this relaxed rule is that there is almost no remedy for an incorrectly-decided constitutional case at the supreme court level because there is no route of appeal from a court of final jurisdiction, and constitutional amendments are impracticable. Indeed, the supreme courts of both Canada and the United States have a history of overturning themselves. In the last ten years, the Supreme Court of Canada has reversed its prior decisions on prostitution and euthanasia. As for the United States Supreme Court, it famously overturned itself in Browne v. Board of Education when it refused to follow precedent authorizing racial segregation in schools and other public places.
Abortion Laws in Canada
There have not been any criminal laws restricting abortion in Canada since R. v. Morgentaler was decided by the Supreme Court of Canada in 1988. In that case, the court struck down criminal laws which limited abortion to procedures performed in an accredited hospital upon review by a committee confirming that the mother’s life or health would be endangered by the continuation of the pregnancy. While there were a number of judicial opinions in Morgentaler, the majority of judges held that the law should be struck for being inconsistent with section 7 of the Charter, which guarantees the right to “life liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The reasoning was that the criminal code requirements unnecessarily posed a risk to a woman's health.
While the court struck certain provisions criminalizing abortion, they did not rule that abortion is a constitutional right or that all restrictions on abortion would be illegal. In fact, all of the judges who ruled in favour of striking the provisions recognized that protection of fetal interests by Parliament was a valid governmental objective. Following this decision, Parliament attempted to pass a bill which would have criminalized abortions where a woman’s health was not at risk. The bill passed in the House of Commons, but it was defeated in the Senate after a tie vote.
While legislators have not made laws restricting abortion since Morgentaler, courts have continued to weigh in on peripheral issues relating to fetuses. In Trembley v. Daigle, the court held that a fetus is not a human being for the purpose of having a “right to life” under the Quebec Charter of Rights and Freedoms. Similarly, the court held in R. v. Sullivan that a fetus is not a person within the meaning of the Criminal Code offence of death by criminal negligence. Conversely, in R. v. Levkovic, the court refused to strike down section 243 of the Criminal Code which makes it an offence to dispose of the “body of a child” for the purpose of concealing delivery, even in cases where the child died before birth. The court held that the phrase “a child that died before birth” was not vague, and agreed with the Ontario Court of Appeal that a fetus becomes a child when it reaches a stage in its development when, but for some external event or other circumstance, it would likely have been born alive. This interpretation for when a fetus becomes a child was restricted to s. 243 of the Criminal Code.
Abortion Issues in Canada
Proponents of abortion rights argue that main issue with abortion in Canada today is barriers to access. Prolife individuals disagree, describing abortion itself as being the main issue, including sex selective and late term abortions.
The debate about access to abortion has implications for other Charter rights, such as freedom of expression and freedom of religion and conscience. In Ontario, for example, the Safe Access to Abortion Services Act, 2017, creates “access zones” around clinics and facilities that perform abortions. A number of activities are prohibited inside these access zones, including the performance any “act of disapproval” concerning issues related to abortion services by any means. Similar legislation restricting free expression exists in Newfoundland, Nova Scotia, Quebec, Alberta and British Columbia.
Municipal bylaws are another way expression is sometimes limited because of the abortion debate. As an example, the City of London, Ontario, passed a bylaw in May 2022 that prohibits the delivery to residential properties of any image which shows or purports to show a fetus unless the image is fully concealed in a sealed envelope or package which contains a warning that the image may be offensive or disturbing to some people. While city councillors have justified their actions by invoking the power to make bylaws that respect the “health, safety and well-being of persons”, the bylaw’s narrow focus on prohibiting images of fetuses, regardless of how benign they might be, suggests that the law is really about limiting expression related to abortion.
The Charter rights to freedom of religion and conscience are also impacted by the abortion debate. In 2015, the College of Physicians and Surgeons of Ontario introduced its “Professional Obligations and Human Rights” policy statement, which required physicians in Ontario to provide effective referrals to other health care providers in cases where they themselves were unwilling to provide care for a patient for reasons of conscience or religion. Some physicians objected that providing an effective referral for abortion was morally equivalent to performing an abortion, which went against their consciences or religious beliefs. A legal application challenging the policy eventually made its way to the Ontario Court of Appeal, where that court decided that the policy did infringe the Charter rights of physicians, but that the infringement was reasonable and necessary given the objective of equitable access to healthcare.
Disagreement over abortion is unlikely to be settled anytime soon. In the United States, laws prohibiting abortion will be left to individual states. In Canada, there are no laws prohibiting abortion and that situation is unlikely to change, but the debate is likely to be litigated on collateral issues where it intersects with criminal law, freedom of expression, religion and conscience.
 Hogg, P. Constitutional Law of Canada, 2015 Student Edition, (Toronto, Thomson Reuters Canada Limited, 2015)