By Daria Berstell
Reproductive rights, especially abortion policies, are highly contested issues around the world. However, perhaps nowhere is the debate over abortion as divisive, and occasionally violent, as it is in United States, where abortion, while legal, is subject to intense regulations. In Canada, on the other hand, abortion is not as much of an issue on the political stage and in the media, as one of the only countries without legal restrictions on abortion. The divergence in abortion policy in the United States and Canada can be traced to the respective U.S. and Canadian Supreme Court cases of Roe v. Wade and Morgentaler v. the Queen. These cases helped foster different legacies of abortion policy in both nations regarding abortion as a constitutional right, abortion as a medical issue, political party permeability, and legislative inactivity. The nature of these cases was progressive for its time, but resulted in the stagnation of abortion rights’ dialogue in Canada for many years to come. Today, the issue is rarely broached.
Abortion Rights in Canada
Until the 1800s, abortion was only against the law in Canada after quickening, the stage of a pregnancy when the fetus’ movements can be felt. This was derived from English common law, as many of the regulations and laws of Canada were. It wasn’t until 1803 that abortion after quickening was made a capital offense. Then, in 1837, quickening was dropped as the distinguishing stage of pregnancy and abortion in general was made illegal. Despite its criminalization , the laws were unenforceable and both safe and unsafe abortions continued.
Within the Canadian legal code, there was an exception that allowed for abortions to preserve the life of the mother. Abortion was allowed if the pregnancy “would make the woman a physical or mental wreck.” This legal ambiguity allowed some freedom for doctors to perform abortions. In the 1960s public opinion about abortion laws began to change with increased publication on new research and inquiries into abortion deaths. In 1969, the Canadian Criminal Code was amended to make abortion legal if signed off on by a three-doctor committee.Thus while some abortions were legal, others were not and abortion remained as part of the Criminal Code.
However, in 1988 the Canadian Supreme Court ruling of Morgentaler v. the Queen in Canada nullified the 1969 Criminal Code ruling on abortion. In this ruling, the Supreme Court declared all of Canada’s abortion laws to be unconstitutional. The Court decided that forcing a woman to carry a fetus to term if she did not meet certain requirements for an abortion subjected her reproductive capacity to the government and was a “breach of the woman’s right to security of the person.” This right was guaranteed in Canada’s Charter of Rights and Freedoms which had been passed in 1982. Interestingly though, thirteen years earlier, the Canadian Supreme Court had refused to intervene in an abortion controversy, developing a policy of judicial restraint regarding abortion on the part of the Canadian Supreme Court.
Abortion Rights in the U.S.
Abortion was not prohibited or regulated in the United States, except for after quickening, before 1821 when Connecticut was the first state to create legislation that made it harder to obtain an abortion with restrictions placed on drugs needed to perform abortions. Also in 1821, New York made abortion after quickening a felony and pre-quickening a misdemeanor while retaining exceptions for when a pregnancy endangered the life of the mother. Between 1830 and 1900 there was steady progress towards making abortion illegal, with forty-one states passing anti-abortion legislation. By 1900, abortion was a felony in every state. Despite the establishment of these anti-abortion policies, the laws were not enforced until the 1960s, when the prevalence of illegal abortions became public knowledge. While many states had followed New York’s example and put in places exceptions for preserving the woman’s life, many states did not. In those states, abortion was completely illegal under any circumstances which resulted in a significant amount of illegal abortions.
In 1973, Roe v. Wade legalized abortion in the United States on the basis of a right to privacy. The ruling stated that criminal abortion laws that do not take into account the stage of the pregnancy and the interests of the woman are unconstitutional because they violate the Due Process Clause of the 14th amendment where the right to privacy, which protects personal decisions from government interference, was established. Though the Due Process clause does not explicitly state this right to privacy, recognizing that no person shall be “deprived of life, liberty, or property without due process of law,” which was established in previous court decisions, notably Griswold v. Connecticut created this precedent. Griswold made clear that while the Constitution does not mention privacy, the court had recognized it as a right. It would seem from these two stories of judicial legalization of abortion in certain circumstances that the issue in both countries developed on similar trajectories. However, closer reading reveals immense differences.
Differences in Interpretation
The greatest difference between Roe v. Wade and Morgentaler v. the Queen is that while the U.S. created a constitutional right to abortion by guaranteeing the right to abortion as part of the constitution of the United States, Canada asserted that its old abortion law violated Canada’s Charter of Rights, which eliminated all anti-abortion legislation and essentially legalized abortion. Thus, while the U.S’s legalization of abortion created and protected the right to abortion, Canada’s legalization resulted in no legislation on abortion, thus neither protecting the right to abortion nor banning abortion.
As such, the debates and lack thereof over abortion the United States and Canada, respectively, can be connected to these two decisions. In the United States, the two sides of the abortion debate are each connected to greater movements, and unlike in Canada, an ongoing battle continues. The pro-choice (pro-access to abortion) group is fundamentally tied to the feminist movement, while the pro-life group (anti-abortion) are connected but not tied to Christian groups and to the Republican Party. Pro-life groups are free to advocate and fight for their issue as single-issue groups do; while pro-choice groups must deal with being one part of the greater women’s movement. For pro-choice groups, this means they must advocate for their cause to remain a priority within the women’s movement while also advocating for their cause against the opposition. While pro-choice activists must fight on two fronts, pro-life group’s place in the Republican party allows activists a significant amount of room to influence legislation that attempted to restrict or repeal Roe.  In addition, the increasingly conservative court in the late 1970s made it much harder for pro-choice groups to use judicial appeals as their method of doing away with legislation that restricted abortion. The anti-abortion movement becoming a plank of the Republican Party has allowed it to exert a significant amount of influence in politics. This relationship has resulted in anti-abortion ideals having more success than pro-choice groups in legislative and judicial politics since 1973. Yet while the issue is hotly debated due to the nature of the “invented right” of abortion, the concrete legalization of abortion under the Canadian constitution has made the issue a silent one in Canada.
After the Morgentaler decision of 1988 Canadian abortion groups did not gain much traction in bringing their issue to the forefront of legislative or judicial agendas, unlike in the United States where abortion remained a public and legislative issue after Roe and does until this day. One factor in this may be that the morality of abortion does not seem to be a major question in Canada; rather, abortion is seen more as a medical issue.  Additionally, the Canadian government has a history of shying away from definitive responses, especially on social policies.  After Morgentaler, the Canadian Supreme Court showed a consistent desire for abortion to be a legislative issue with decisions in two other important cases where the Supreme Court refused to rule about a fetus’ right to life or a woman’s right to abortion.  This has resulted in abortion policy in Canada remaining at a standstill since 1988. This has continued the legacy of lack of action on abortion in Canada, while in the U.S., abortion policy legacy remains one of attempted policy and judicial changes. Abortion has not played a central role in Canadian politics for the past 20 years, while new legislation on abortion and especially regulation of abortion services is brought up nearly every year in the American legislature. While the American right to abortion remains a constitutional right, there is a legacy of attempting to repeal, change, and influence that right, while Canadian abortion policy has remained consistent and stagnant, resulting in abortion becoming relatively ignored in that country.