America’s two solitudes are not the same as Canada’s

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America’s two solitudes are at it again. The mother of all culture wars has reared its ugly head after the leak of a draft U.S. Supreme Court decision striking down the 1973 ruling that established a woman’s right to an abortion. What produced shrieks of horror and dystopian warnings right out of The Handmaid’s Tale among some Americans was cheered by others as a long-awaited deliverance. As if the country wasn’t divided enough already.

The leaked draft decision, written in February by archconservative Justice Samuel Alito, may or may not bear a resemblance to the court’s official ruling, which is set to be handed down late next month. The precise wording of most Supreme Court decisions is typically hashed out over the course of many weeks among judges in the majority. Justice Alito’s draft was likely a starting point for those negotiations. On an issue as sensitive as abortion, it should not be the end point.

This moment has been coming for a while. Since the court ruled 49 years ago in Roe v. Wade that state bans on abortion violated privacy rights enshrined in the U.S. Constitution’s 14th Amendment, Republican (and some Democratic) politicians have fought endlessly to overturn the ruling. Failing that, several state legislatures slapped restrictions on abortion access.

Former president Donald Trump’s three Supreme Court nominees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were each confirmed by a bare majority of senators. Their appointments shifted the balance on the top court in ways that most Americans are only beginning to appreciate. But it would be wrong to suggest it’s all or only about politics.

Roe has always been on shaky legal ground. Countless experts, including many who support a woman’s right to choose, have questioned the court’s use of the 14th Amendment – which was adopted in 1868 after the abolition of slavery – to support its decision establishing abortion rights. Legal scholars have poked holes in the judgment for years and provided a clear template for its reversal, which is now reflected in Justice Alito’s draft decision.

That is the difference between Roe and the 1988 ruling by the Supreme Court of Canada that struck down this country’s former abortion law. The top court here ruled that the Criminal Code provision on abortion violated Section 7 of the Charter of Rights and Freedoms, which protects the security of the person. The Charter was only six years old then, so there was no ambiguity about the legal basis for the court’s decision. Roe v. Wade, in contrast, relied on a century-old amendment whose interpretation has long been the subject of dispute.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Justice Alito wrote in his draft.

Still, after standing for almost 50 years, there is a strong case to be made that Roe is settled law. Overturning any precedent that has been on the books that long could be interpreted as judicial activism – or the kind of overreach that conservative judges typically rail against.

It is possible, if not probable, that the U.S. court’s final ruling will turn out to be much narrower in scope than Justice Alito’s draft suggests. The case before the court involves a Mississippi law that bans abortions after 15 weeks of pregnancy; Roe established the right to an abortion for any reason up to the point of the viability of the fetus outside the womb, which is currently around 23 weeks.

During oral arguments in December, Chief Justice John Roberts noted that the 15-week cutoff “is the standard that the vast majority of other countries have.” Indeed, most European countries limit abortions for any reason to the first trimester of pregnancy. In France, a country that considers itself liberal on the issue, the cutoff was recently increased to 14 weeks from 12. Canada, the United States, Great Britain and the Netherlands, which all allow for abortions up to or beyond the second trimester, are outliers in this respect.

In a perfect world, fundamental rights should not be subject to politics and the state should not interfere with a woman’s right to choose. But even in Canada, abortion continues to stir up politics, to the chagrin of centrist Conservatives who fear they are about to have that “stinking albatross” hung around their necks again if the American culture war crosses the border.

Prime Minister Justin Trudeau’s Liberals will try to squeeze political mileage out of the controversy by reminding voters that many Conservative MPs want to restrict access to abortion in this country. That is true, but it is also politics. Abortion rights are more secure in Canada than almost anywhere thanks to the wisdom of our top court and the modernity of our Charter.

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