An abortion rights protester holds a sign as she demonstrates after the U.S. Supreme Court ruled in the Dobbs v Women’s Health Organization abortion case, overturning the landmark Roe v Wade abortion decision in Miami on June 24.MARCO BELLO/Reuters
Each year, Canadians know less and less about their own history, and how it is something more than just the American version, writ small. Watch enough CNN, or Hollywood productions shot in a Toronto masquerading as Chicago or Vancouver cast as Portland, and you start to forget that Canada is its own thing. Oh, but it is. God keep our land, glorious and distinct.
A one-two punch of United States Supreme Court rulings is a reminder of how we do things differently, by virtue of our different past, and an unfolding present of different democratic choices.
On Thursday, the U.S. Supreme Court ruled that Americans have a constitutional right to carry firearms. On Friday, it said the opposite with regard to abortion. In both instances, it upended decades of jurisprudence and practice.
The first decision limits the power of states and the federal government to restrict the carrying of weapons; the second does the reverse for abortion, by erasing earlier Supreme Court rulings and ending a constitutional protection that has stood since 1973, and which prevented legal limitations on abortion during all but the later stages of a pregnancy.
It means that an American who wants to pack a pistol on the streets of New York – the subject of the first case – enjoys constitutional protections, while an American seeking to end a pregnancy does not.
The right to possess and bear arms is not unlimited, said the court, but it is now more than ever a fully fledged U.S. constitutional right, on the same plane as the right to vote or free speech. As for abortion, it is no longer a constitutional right at all. It is entirely up to legislatures to decide when to allow it, where to restrict it, or whether to make it outright illegal.
And Canada? That’s not Canada.
Start with guns. Canada has the second-highest level of gun ownership in the developed world (after the U.S.), with an estimated one firearm for every three people. Guns are hardly unknown here. Millions of law-abiding Canadians own them, and safely use them for activities such as hunting.
But consider these words from Thursday’s U.S. Supreme Court ruling striking down a New York law that made it difficult to get a permit to carry a weapon: “New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm … prevents law-abiding citizens with ordinary self-defence needs from exercising their Second Amendment right to keep and bear arms.”
Almost none of that applies, or even makes sense, in Canada. It doesn’t align with our Constitution or our history, or the wishes of Canadians.
The U.S. Supreme Court, leaning on U.S. second amendment and the “self-defence needs” of citizens, says that the state cannot unduly restrict someone’s right to carry a handgun. But in Canada, there is no constitutional right to bear arms. A permit to carry a concealed firearm is virtually impossible to get, and as legal gun owners know well, carrying a loaded weapon in anticipation of perhaps needing it for self defence is illegal. Here, guns are dangerous tools that when not in use for legit purposes such as hunting must be kept unloaded and locked up.
Why is that? Because it’s what Canadians chose, democratically.
On abortion, the U.S. Supreme Court has veered from activist judges on the left creating a constitutional right to abortion in 1973 to, a half-century later, activist judges on the right instantly demolishing the edifice of practice and precedent.
Canada’s different journey to abortion rights was largely democratic. In the late 1960s, Parliament ended a blanket prohibition on abortion and replaced it with a system allowing abortions deemed “medically necessary.” However, the system proved unworkable and unequal in application, and the Supreme Court struck the law down in 1988.
But unlike Roe v. Wade in the U.S., the Canadian Supreme Court decided the 1988 case of R. v. Morgentaler on narrow grounds. Parliament was left with considerable leeway to legislate on abortion. After long debate, Parliament did not. To this day, it never has. Politics, and Canada, moved on.
A generation later, our Supreme Court would likely define abortion rights more broadly, if such a case were to come before it – but that won’t be happening any time soon. There is currently zero prospect of Parliament restricting abortion. It’s not what most Canadians want.
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