Last night just as I was getting ready for sleep, I found out about the leak of a draft decision from the U.S. Supreme Court in Politico striking down Roe v. Wade, the 1973 decision that made abortion a constitutional right. As you no doubt know by now the decision strikes down one of the best-known U.S. legal decisions saying it was “egregiously wrong from the start” and that abortion is such a controversial issue it should be solved by politicians at the state level. It is impossible to exaggerate the importance of this decision not only to all those with unwanted pregnancies, especially poor, Black and immigrant women, but also potentially to many of the rights we have fought for and won over the last decades.
Roe v. Wade made abortion not only legal but a constitutional right in 1973 when abortion was still criminalized in Canada. The decision has been at the centre of the so-called ‘culture wars’ ever since. In the U.S., defending that right has been the primary issue of the feminist movement for many decades. The powerful anti-choice forces have tried everything from violence against doctors and clinic workers to stacking the Supreme Court with anti-choice judges to end the right to abortion. Now it looks like they have won.
While we long expected this decision after Trump stacked the court with anti-choice justices, it is even worse than we thought. Thirteen states have already passed seriously restrictive abortion laws, including total bans, which come into effect as soon as the Roe v. Wade decision is made. The arguments against abortion as a constitutional right could be used against any right not originally in the constitution thus threatening same sex marriage, civil rights, and even potentially cross racial marriage. While I am not one to rely on the justice system to defend our rights, it is central to democracy that there is an impartial body to judge disputes especially when it comes to human rights. Now that system is threatened in the U.S. in a way it has never been before.
My hope is that an intersectional movement greater than any we have ever seen will rise up in the U.S. against this decision, pressuring the Democrats to do whatever it takes to get codifying abortion rights in the law through legislation. That means ending the filibuster. I am not going to hold my breath on that one, but progressives are a majority in the United States. It is hard to get excited about the do-nothing Biden administration. Now there is a reason to get out the vote.
How will this affect Canada? It is very unlikely anyone of any influence will try and recriminalize abortion in Canada. Canada is much more pro-choice than the U.S. The latest polls show 70 per cent of Canadians find abortion laws acceptable and only 10 per cent find them unacceptable. There is no constitutional right to abortion in Canada but there is a constitutional right to security of the person and the Supreme Court decided that criminalizing abortion was a violation of that right. We’ve been fighting successfully in most provinces to make abortion a medical service like any other. Moreover, criminal law in Canada can only be decided by the federal government. Unlike in the U.S. where states also can pass criminal laws, in Canada that is an exclusive federal jurisdiction. While still a good reason to make sure the Tories never win another federal election, even Stephen Harper, a died in the wool social conservative, didn’t dare to try recriminalizing abortion.
Nevertheless, the anti-choice movement in Canada, which is still strong, will definitely feel the wind in their sails. They just succeeded in financing four of the ten candidates for the CPC leadership. Even though three of their four candidates did not qualify, this show of strength is meant to pressure the successful candidate, most likely Pierre Poilievre, to do whatever he can to limit access to abortion. It is access which is the problem. In Alberta, access to abortion is slowly being eroded. It’s been a recent fight in New Brunswick and P.E.I. While the Ontario PCs are trying hard to dissociate from social conservatives before the election, there is little question that if they are re-elected anti-choice activists will up the pressure to restrict access. The pro-choice movement can take this opportunity to show the power of that pro-choice majority by taking to the streets and to social media to defend Roe v. Wade. Pro-choice groups are also promoting increased access to reproductive justice including universal, free contraception, teaching providers and the public about abortion to normalize it, and working to ensure free abortion care in all provinces, including any travel costs. Education about the history of the pro-choice struggle in Canada is also important. It was one of our most successful social movements and deserves to be celebrated. The first action to defend Roe v. Wade was held the day after the leak at the U.S. consulate in Toronto organized by the Ontario Coalition for Abortion Clinics, the group that led the fight to legalize freestanding clinics in the 1980s.
Canada’s political parties have already begun reacting to the leak on the Roe v. Wade decision. On Tuesday, CTV reported that the Bloc Quebecois intended to force a vote on a unanimous consent motion “that the House reiterate that a woman’s body belongs to her and her alone and recognize her freedom of choice on abortion for any reason.” The CPC for their part has told its members not to comment on the Roe v. Wade decision.
Make no mistake. If the U.S. Supreme Court holds to the position outlined in the leaked document, the political civil war deepened by Trump will get more ferocious than we have ever seen it. The stakes couldn’t be higher. Republican majorities in either the House or the Senate in this year’s election will continue the paralysis that slows or stops the Democrats from making progressive change and if the Republicans win the next Presidency, I fear we will no longer be able to call the U.S. a democratic country and the impact of that is incalculable.
Judy Rebick was the founding publisher of rabble.ca and a leader in the pro-choice movement during the 1980s. She did interview with CBC about the US decision and its impact on Canada. Judy’s book Ten Thousand Roses: The Making of a Feminist Revolution includes two chapters of the pro-choice struggle in Canada.