The stunning leak of the draft opinion by Supreme Court Justice Samuel Alito that would endanger women’s right to choose bears reflection by Canadians. The news that the US court might overturn the 1973 Roe v. Wade’s decision establishing the constitutional right to abortion was not surprising. That it leaked more than a month before it was due to be announced was astonishing.
It has already given new adrenalin to the Canadian anti-choice forces. A somewhat panicky interim Conservative party leader, Candice Bergen, anticipated the split in Tory ranks the decision could inflame and told her MPs not to comment on the issue.
The leak shines a spotlight on how divisive this issue is in the US, even within the highest court. Someone working for a Supreme Court justice decided to take the matter into their own hands. According to Gallup, four out of five Americans have told pollsters for years that they are opposed to a complete ban on abortion. In an America divided almost evenly between the two parties, this means that more than one in three Republican voters are likely pro-choice. The decision, if confirmed, will hand the Democrats a powerful weapon in this year’s midterm elections.
But there is a more disturbing element to this partisan court’s probable decision. English common law is grounded in precedent. Courts are typically very leary at overturning a predecessor’s decision, unless major aspects of the issue have changed in the ensuring years. When rulings are all on one side—as is the case with Roe v. Wade — most courts would simply refuse to consider an issue again. It would have the status of “settled law.”
We may expect that the minority justices’ opinion on this reversal of settled American law will be scathing. One of the frightening prospects of breaking this previously secure boundary is what other past rulings this court will challenge — gay rights, race, election law?
The rage at the possible ruling has already revved up debate on breaking the Senate filibuster. The Republicans may regret getting what they wished for, as the campaign to save reproductive rights now includes at least two of their senators. Democrats will no doubt target the millions of pro-choice Republican and independent women voters from now until the November mid-terms.
In Canada, we feel secure about the right to choose, despite the increasing vitriol of a small minority of anti-abortion activists. Every prime minister since Brian Mulroney has made it clear that banning abortion is an absolute no-go. However, the anti-abortionists are now very well-funded, have growing influence in the Conservative party and receive many times the media coverage they merit.
They might force a Conservative leadership front-runner to agree to legislate against abortion in return for their second ballot support. The bizarre and somewhat undemocratic leadership voting rules the Conservatives have adopted mean that even a second-tier candidate like Leslyn Lewis can win. She is the anti-choice hardliner.
Our Supreme Court has never ruled on abortion as a Charter right, and the consensus is that they would never even attempt to limit reproductive rights. Well, perhaps. No American in 1973 would ever have envisaged a court with a 5-4 tilt toward hardline social conservatism. Our justice appointment process, until now, has been almost entirely free of partisanship. There is no guarantee that will forever be true.
Another somewhat horrifying prospect: Our 2025 election once again delivers a minority, this time a Conservative one. What if a group of Tory MPs say they will not support their own government unless it promises a free vote on prohibiting abortion?
As a prime minister leading a thin Tory minority government, Pierre Poilievre would face a nightmare. Would he be tempted to put the issue to a Supreme Court reference? Such a choice would probably split Canadian conservatives into two angry camps once again. It is hard to predict how many hard anti-abortion Tory MPs would be in the next caucus, but two dozen seem a safe minimum bet. They could doom Canadian conservatism for many more years in purgatory, and the debate would roll on to a new generation.
Robin V. Sears was an NDP strategist for 20 years and later served as a communications adviser to businesses and governments on three continents. He is a freelance contributing columnist for the Star. Follow him on Twitter: @robinvsears