Mélanie Cantin is a staff correspondent for JURIST in Ottawa and 1L at the University of Ottawa. A bill to codify Abortion rights was defeated in the US Senate on Wednesday. This hasty and desperate attempt came in the wake of a leaked US Supreme Court draft decision earlier this month that would overturn the seminal case of Roe v Wade (1973). Roe recognized abortion as a constitutional right in the United States. The leak and the threat of a Roe rollback has sparked demonstrations both for and against the decision around the world, including Canada. As a student fascinated by American law, I can’t help but join in the conversations that compare Canada to its neighbor to the south in this particular regard. The key abortion case in Canada is R v Morgentaler (1988), which was based on very different legal principles from Roe’s and never actually declared a constitutional right to abortion. This often surprises many Canadians, as we tend to see ourselves and our country as more “liberal” or “progressive” than the US. In Morgentaler, the Supreme Court of Canada ruled that criminalizing abortions performed in non-accredited hospitals without the approval of a Therapeutic Abortion Committee was a violation of section 7 of the Canadian Charter of Rights and Freedoms. A 5-2 majority found that the Penal Code provision outlining these rules unreasonably violated the “security of person” aspect of section 7. Four different justices wrote reasons in Morgentaler, three of them in favor of declaring the rules unconstitutional. provisions of the Code. . The most discussed reasons are those written by Chief Justice Brian Dickson and Justice Bertha Wilson. The former wrote the following: “Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations is a profound interference with the body of a woman and, therefore, a violation of security of the person”. (pp. 56-57). Wilson J. went a step further in her reasons and found that the provisions of the Code in question violated the security of person and liberty aspects of section 7. She stated: “[T]The right to freedom contained in art. 7 guarantees each individual a degree of personal autonomy over important decisions that intimately affect his private life. The question then is whether a woman’s decision to terminate her pregnancy falls within this class of protected decisions. I have no doubt that she does.” (p. 171) With such strong words from the majority of the court, it is not surprising that many Canadians mistakenly believe that this decision is similar to Roe. However, Morgentaler repealed the criminal provisions that existed at the time to restrict abortion without recognizing it as a constitutional right. The reason the abortion debate seems perhaps a bit quieter in the Canadian context is not because abortion rights are necessarily broader here than in the US, but because we haven’t passed any criminal law around it. to abortion in many years. The last attempt was in 1991 by the Conservative government of Brian Mulroney, whose proposed legislation to recriminalize abortion unless performed by a doctor or under the direction of a doctor who considered the woman’s life or health to be in danger. Danger failed to pass the Senate. Since then, no criminal laws relating to abortion have been enacted. So for most Canadians, Morgentaler had largely shut down the abortion debate. Parliament was unable to respond after the decision, so abortion began to look like it had become a settled issue. Many politicians still see him that way, even those whom we might consider more likely to disagree with him. For example, in a leadership debate for the federal Conservative Party earlier this week, all but one of the candidates explicitly stated that they themselves were pro-choice and/or that they would not introduce legislation that would “reopen the debate” in Canada if they became Prime Minister. However, it is crucial that Canadians are not lulled into a false sense of security. What will happen in the US if Roe is overturned is not impossible here in Canada. In fact, during the leadership debate, when candidate Leslyn Lewis was the only one to declare herself pro-life, applause rang out in the room where the debate was taking place. No such applause followed previous pro-choice or non-commitment statements by the other candidates. At the provincial level, Ontario MPP Sam Oosterhoff has infamously pledged to make abortion “unthinkable in our lifetime.” I in no way mean to instill fear by pointing these things out, but rather to say that pro-abortion Canadians should remain on high alert. Legislators’ promises can be empty and well-established case law can be overturned. Roe felt solid to many Americans, and yet here we are nearly five decades later, watching it disintegrate despite being affirmed numerous times. In Canada, we would do well to remember that the fact that some politicians see abortion as a “closed issue” does not mean that access to it is not at risk. In fact, the events surrounding Roe have shown that the Canadian public is still thinking about abortion and that many are looking for politicians willing to address the issue. A strong pro-life movement persists in Canada despite the fact that a large majority of the population identifies as pro-choice. I witnessed this firsthand yesterday when I attended the Campaign Life Coalition (CLC) March for Life on Parliament Hill, where pro-life protesters rallied in opposition to abortion. “I’m here to fight for babies, for their rights,” said Caroline, a pro-life protester I interviewed. “I would like to see abortion banned completely [in Canada]. Now, I know people will say ‘what about the rape case?’ Even in a rape case, it is not the child’s fault. They deserve a life.” Finally from #Ottawa this afternoon, @JURISTnews Canada Staff Correspondent Mélanie Cantin of @uocommonlaw interviews a #ProLife supporter on Parliament Hill as Canadian anti-abortion activists rally following what may be pending change from #RoeVWade in the U.S. pic.twitter.com/kcuxK7myXi — JURIST (@JURISTnews) May 12, 2022 However, a major pro-abortion counter-protest gathered across the street with their own signs and even a couple of costumes inspired by the novel “The Handmaid’s Tale” by Margaret Atwood. They eventually made their way up Parliament Hill to a designated area monitored by police. Notably, despite having a microphone and speakers at their disposal, the pro-lifers were largely drowned out by the bilingual “My body, my choice! Mon corps, mon choix!” shouts from nearby pro-choice. The counter-protesters of #ProChoice sing on #Ottawa’s Parliament Hill this afternoon in this video by @uocommonlaw student Mélanie Cantin, covering today’s pro-life and pro-choice rallies on the Hill for @JURISTnews.pic.twitter.com/Y6sJGnDcqs— JURIST (@JURISTnews) May 12, 2022“I got so tired of seeing all the anti-choice lies from the crowd,” a pro-choice counter-protester (who wished to remain anonymous) told me. religion to other people. They are free to hold that belief, but not to impose it on others. […] Accessibility [of abortion services] it’s key.”