The Overturn of Roe v Wade: Reflecting on R v Morgentaler & The Impact of US Jurisprudence & Canadian Law

The US Supreme Court draft decision to overturn Roe v Wade was leaked to the public last month, sparking public discourse surrounding its validity. Now nearly a month later, the decision which extended abortion protections to women has been officially overturned.

In Canada, R v Morgentaler is a comparative foundational case to Roe v Wade. The decision legalized abortions across the country by connecting it to the constitutional section 7 Charter right to life, liberty, and security of the person. Before this judgment, the Criminal Code banned abortions conducted outside of accredited hospitals. In this case, Henry Morgentaler, a doctor that openly conducted abortions out of eight Montreal clinics, was criminally charged under this provision. The Supreme Court held that the denial of legal abortions violated women’s section 7 rights and placed them in a position that threatened their security of the person.[1]

Roe v Wade has been met with some criticism in Canadian circles. Former Supreme Court Justice Rosalie Abella and Prime Minster Justin Trudeau publicly criticized the decision and noted its departure from Canadian human rights law and values.[2] Families Minister Karina Gould also noted the social impact this will have on Canadian society, as US women will be crossing our border to obtain abortions in Canada. Public Safety Minister, Marco Mendicino, has restructured the border to allow US women seeking abortions free passage in response.[3]

The overturn of Roe v Wade is a significant development in US jurisprudence and law. The extent that the decision will impact Canada remains unknown, but further developments will be followed and updated on the LESA blog here.

[1] R v Morgentaler, [1988] 1 SCR 30.

[2] Sean Fine, “Roe v. Wade’s fall sets a ‘frightening precedent,’ retired Canadian Supreme Court justice says” online: CBC News (24 June 2022)  [https://www.theglobeandmail.com/world/article-roe-v-wade-supreme-court-ruling/].

[3] John Paul Tasker, “Trudeau calls U.S. court decision overturning Roe v. Wade ‘horrific'” online: CBC News (24 Jun 2022) [https://www.cbc.ca/news/politics/trudeau-horrific-us-court-abortion-1.6500475].

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