Jackson Doughart
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R v. Wade, Roe v. Morgentaler

Prince Arthur Herald, 04 October 2013

In many compelling ways, Canada and the United States constitute a single cultural community. We laugh at the same jokes, listen to the same music, follow similar educational and career paths, and have various shared social conventions and customs. Even the term Canadian-American, to denote someone with dual citizenship, seems like something of a technicality, contributing to the sense that, in cultural terms, the world’s longest international border is porous like none other.

Yet one would suspect that notwithstanding these similarities, the unique histories and institutions of the two countries would render their political processes and developments quite clearly separable, and in some sense, predictable. In effect, the ongoing discourse about any issue should bear a particular Canadian or American stamp that reflects these historical and institutional discrepancies, making the “political” border more firmly black and white.

But the political debate surrounding the issue of abortion — and especially the question of whether pregnancies can be terminated before the point of viability — suggests that the Canada-United States border is both culturally and politically grey. Consider that despite being a deeply divisive matter in both countries, the paths which Canada and the United States have taken toward and from the current status of legal abortion are indeed distinct, but the opposite of what one might expect.

In the United States, legal abortion was established via judicial fiat. Roe v. Wade [1973] held, rightly or wrongly, that because the constitution protects a “penumbral” right to privacy, and because a legal prohibition of abortion would breach the privacy of a woman and her doctor, there is a constitutional right to abortion. End of story.

In Canada, the Supreme Court case that is sometimes compared to Roe v. Wade – R. v. Morgentaler [1988] – came to none of these conclusions. There is no such thing as a legal, let alone a constitutional, right to abortion in Canada. R. v. Morgentaler merely struck down the existing law, which required women to apply for termination to a therapeutic abortion committee, on the ground that this requirement (which many women, including ones who needed an abortion for medical reasons, could not meet) violated the Charter-protected security of the person. But the Court explicitly did not rule out future legislative restrictions of abortion, and unlike Roe, established no precedent, meaning that the legality of abortion in Canada is entirely within the legislative realm.

These divergent paths would suggest the following outcomes: Given the constitutional entrenchment of abortion rights and deference to stare decisis (the rule of precedent), Americans should be resigned to the legality of abortion, and to the extent that they continue to discuss it, they should make primarily legal, and not moral or political arguments. Canadians, meanwhile, should be arrested by their democratic power to conform the law to their own beliefs, resorting to moral and political argument.

Yet in practice, this has turned out to be the complete reverse of reality. While the matter of contention in the United States is the upholding or overturning of Roe v. Wade, the arguments advanced by either side are chiefly moral and not legal. Americans often behave as if their political campaigning could influence the law, and that their chosen candidate for Congress or the White House could actually make a difference in the legality of abortion. In fact, presidents and congressional representatives have virtually no power to decide this. Only judges do.

In Canada, the issue receives comparatively little public airtime, and when it does, it is chiefly legal, and not moral arguments, which are advanced. Defenders of the status quo unfailingly appeal to the Morgentaler case as a knock-down point, and conservative opponents of abortion sometimes direct their frustration at the Court, when it in fact had little to do with the present state of affairs. And the thorough capacity of Canadians to actually make a law has been met mostly with apathy, while the seeming permanence of Roe has not deterred Americans from remaining engaged with the issue.

So in practice, Canadians behave the way Americans would be expected to behave, and vice versa. Aside from a general confusion about the law among the citizens of both countries, this strange phenomenon seems destined to remain a mystery.

Jackson Doughart jdoughart (at) gmail (dot) com