What is the legal status of abortion in Canada?

There are growing concerns about access to abortion in Canada after the leak of a draft document that suggests U.S. Supreme Court justices are planning to overturn the Roe v. Wade abortion rights ruling south of the border.

As it stands, there are currently no Canadian laws that explicitly guarantee access to abortion as a right.

While abortion was decriminalized in Canada in 1988 as a result of the landmark R. v. Morgentaler case in which the Supreme Court of Canada struck down a federal law, no legislation was ever passed to replace it, and the issue remains an ongoing topic of political conversation in this country.

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

"They'd have to try to amend the charter to have an explicit right to abortion in the Constitution, and I think that's a pretty unlikely scenario," Gilbert said in an interview.

Gilbert said it is more likely instead that the Liberals will make good on their election promise to strengthen the Canada Health Act to ensure that provinces have to comply with "equality of access to abortion" across the country.

In their 2021 election campaign, the Liberals promised to establish regulations under the Canada Health Act governing accessibility for sexual and reproductive health services to make clear that no matter where someone lives, they have access to sexual and reproductive health services.

The Liberals also vowed to give Health Canada $10 million to set up a portal for sexual and reproductive health information, including countering misinformation about abortion, and provide funding to youth-led organizations focused on young people's reproductive health needs.

However, these promises have yet to materialize.

If a party were to introduce legislation to re-criminalize abortion in Canada in the future, Gilbert said it would be "extremely difficult" for such an attempt to withstand constitutional challenge.

Gilbert said jurisprudence involving Canada's charter cases "has evolved so much" that if the Supreme Court weighed in, "it would be impossible for me to imagine that they say there's no right."

R. V. MORGENTALER

However, the right to an abortion doesn't exist in Canada in the same way it is enshrined in Roe v. Wade.

The Morgentaler ruling in 1988 didn’t concern abortion as a right, but focused on the requirement that a woman must get approval from a committee of doctors in order for the procedure to be carried out legally.

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

Justice Bertha Wilson, who was the only female on the court, found that Section 7 which deals with life, liberty and security of person, along with other parts of Canada's Charter, did affirm a woman's right to an abortion.

But despite this, no bill has ever been passed to enshrine abortion access into law and it's also not considered a constitutionally-protected right under the Charter of Rights and Freedoms.

Since the Morgentaler decision, Gilbert said Canadian courts have made a number of decisions about the importance of decision-making autonomy in regards to Section 7. There have been several opinions issued at various levels of the legal system that say Canadians have the right to make fundamental decisions about their life and health, the most recent being 2015's Carter decision that legalized medical assistance in dying (MAiD).

Gilbert said the right to an abortion is no different.

"I think it would be unlikely [given Section 7] that any attempt to criminally regulate abortion could withstand constitutional challenge," she said.

ABORTION IN CANADA

Across Canadian provinces, abortions are regulated similarly to other health-care procedures. Through the Canada Health Act, Canadians have a right to access sexual and reproductive health services, which includes abortion.

However, it remains difficult to obtain in many provinces.

Abortions can be done medically via a pill or other medication taken at home, however, if the fetus is over nine weeks old, a 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. New Brunswick, for example, doesn't have a single clinic offering surgical abortion.

According to a study published by Action Canada for Sexual Health and Rights in 2019, no providers in Canada offer abortion services more than 23 weeks and six days into a pregnancy. Those who are this far into their pregnancy and looking for an abortion often travel to the United States for the procedure instead, which would be in jeopardy should Roe v. Wade be overturned.

While politicians here have stressed that Canadas's abortion law is secure, Gilbert said she worries about "opening up this conversation again."

"In Canada, our anti-choice groups are heavily funded by American anti-choice groups and so I expect we're going to be seeing a real concerted effort to make this a conversation in Canada," she said.

Since there are currently no Canadian laws that explicitly guarantee access to abortion as a right, Gilbert said "there is absolutely no doubt" that provinces could implement barriers to abortion access as it is a matter of health care, something that is provincially regulated.

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

"Over the past few years we've dismantled many of those barriers, like needing a doctor referral to get an abortion or refusal to pay for clinic abortions or out-of-province abortions, but some of these things could come back up as provincial issues," she said.

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

"We could see waiting periods, we could see mandatory counselling scripts, and those are things that I think we have to be very watchful for and not be complacent in Canada," she said.

Issued in 1973, the Roe v. Wade legal precedent protects the right to perform abortions across America.

A draft opinion, published by Politico on May 2, revealed that a majority of the U.S. Supreme Court’s nine justices were in favour of striking down the decision. Written by Justice Samuel Alito, the ruling would allow individual U.S. states to decide whether or not to restrict access on abortion and the legal regulations around the procedure.

The release of the draft itself will not immediately affect access to abortions in the U.S. However, if the majority votes as predicted, the decision would be overturned with the formal release of the court’s ruling, which is likely to take place in June.