Washington, June 24: Demonstrators protest outside the Supreme Court on the day its judges decided to overturn 1973's historic Roe v. Wade ruling.Jacquelyn Martin/The Associated Press
The U.S. Supreme Court has overturned its 1973 Roe v. Wade ruling, the foundation of the country’s abortion rights. Pro-choice Americans had feared the judges would do this since May’s leak of a draft majority decision by the court, which also sent anti-abortion legislators in several states racing to organize bans that would take effect soon after a final decision came.
U.S. President Joe Biden – who called the ruling “a sad day for the court and for the country” – has tried (so far without success) to codify Roe’s protections into federal legislation, and elect more pro-choice candidates in Nov. 8′s midterms. Meanwhile, abortion providers and the Americans who rely on their services are worried that not just reproductive rights, but other court-protected freedoms, could soon disappear.
Here’s what Canadians should know about what’s happening south of the border, and how it’s renewed questions about inequities in abortion access here.
What the Supreme Court said in overturning Roe v. Wade
The Contemplation of Justice statue is seen at the U.S. Supreme Court building.Evelyn Hockstein/Reuters
Friday’s ruling, Dobbs v. Jackson Women’s Health Organization, involved a challenge by the state of Mississippi to Roe v. Wade, the 1973 case that legalized abortion in the United States. The Mississippi law at issue bans abortions after 15 weeks of pregnancy, whereas Roe allowed abortions at any point before the fetus became viable outside the womb, around 24 to 28 weeks. The court ruled 6-3 to uphold the Mississippi law, and 5-4 to overturn the precedent set by Roe and a 1992 ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey, that clarified its conclusions. On Friday, the judges equated Roe and Casey with the infamous Plessy v. Ferguson case that, in 1896, protected racial segregation laws:
The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. ... Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion.
... Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side – those who sought to advance the State’s interest in fetal life – could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.
Supreme Court Judge Samuel Alito in 2019.Susan Walsh/The Associated Press
Which judges support overturning Roe v. Wade?
The decision to uphold the Mississippi law was written by Samuel Alito, a judge appointed by former Republican president George W. Bush, and supported by five Republican-appointed judges (Chief Justice John Roberts, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh). Chief Justice Roberts wrote separately that he did not support overturning the Roe precedent, even if he supported Mississippi’s law in specific.
Why we knew this was coming weeks ago
On May 2, the U.S. media outlet Politico published a leaked document, dated February of 2022 and labelled “1st Draft,” outlining the debate among Supreme Court justices about the Mississippi challenge. The court later confirmed that the document was real but didn’t reflect “the final position of any member.”
What’s next for marriage equality, contraception and other sexual freedoms?
While Justice Alito said that Friday’s decision applied only to abortion, others writing for the majority said it was a reason to rethink other decisions about LGBTQ and reproductive rights, such as 2015′s Obergefell v. Hodges (which required all states to recognize same-sex marriages), 2003′s Lawrence v. Texas (which struck down laws criminalizing gay sex) and Griswold v. Connecticut (which upheld married couples’ rights to contraception). LGBTQ advocates expressed alarm that the court could undo decades of hard-won legal rights at a time when high-profile acts of violence against LGBTQ Americans are on the rise.
Which U.S. states are now likely to ban abortion?
Twenty-one states, shown below in purple, had prepared laws or constitutional amendments in advance of the June 24 ruling that indicated bans on abortion as quickly as possible if Roe v. Wade were overturned or weakened.
SOURCE: REUTERS
Twenty-one states, shown below in purple, had prepared laws or constitutional amendments in advance of the June 24 ruling that indicated bans on abortion as quickly as possible if Roe v. Wade were overturned or weakened.
SOURCE: REUTERS
Twenty-one states, shown below in purple, had prepared laws or constitutional amendments in advance of the June 24 ruling that indicated bans on abortion as quickly as possible if Roe v. Wade were overturned or weakened.
Wash.
Maine
Mont.
N.D.
Vt.
Minn.
Ore.
N.H.
Mass.
Idaho
Wis.
N.Y.
S.D.
R.I.
Mich.
Wyo.
Conn.
Pa.
Iowa
N.J.
Neb.
Nev.
Ohio
Del.
Utah
Ind.
Ill.
Md.
Colo.
W.Va.
Va.
Calif.
Kan.
Mo.
Ky.
N.C.
Tenn.
Okla.
Ariz.
Ark.
S.C.
N.M.
Ga.
Ala.
Miss.
Tex.
La.
Fla.
Alaska
Hawaii
SOURCE: REUTERS
Undoing Roe doesn’t immediately make abortion illegal nationwide; it will leave each state to decide its own path. Some Democrat-governed states, including Colorado, Maryland and Vermont, have strengthened protections for providers and those seeking their services. But Republican states have done the opposite: According to the Guttmacher Institute, a reproductive rights advocacy group, 13 states already have “trigger laws” designed to take effect as soon as Roe is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
One place where we can already see the possible effects of such laws is Texas, whose Heartbeat Act has already made most abortions illegal since September of 2021. Services that financially support Texans seeking out-of-state abortions told The Globe and Mail that Black, Indigenous and other racialized people make up most of those seeking their services, and those groups could be disproportionately hurt by new restrictions.
The right-wing long game on Roe v. Wade
Norma McCorvey, left, alias Jane Roe, stands with her attorney, Gloria Allred, outside the Supreme Court in 1989.GREG GIBSON/AFP via Getty Images
What is Roe v. Wade about?
The 1973 case centred on a pregnant Texan woman, Norma McCorvey, known in the court proceedings as Jane Roe. Texas law at the time forbade abortion except if the mother’s life was in danger. Her lawyers argued that a woman’s right to choose is a form of privacy protected by the Constitution’s 14th amendment, which has to do with due process, and that the Texas law was so broad that it infringed on those rights. Seven of nine judges, including five nominated by Republicans, ruled in her favour.
Originalism, Trump and the pushback to abortion
Over the decades, Roe’s opponents would embrace a school of legal thought called originalism, which argues that laws should be narrowly interpreted based on what the people who wrote them believed at the time. One originalist argument – which Judge Alito’s opinion draws on – is that, since the U.S. Constitution doesn’t mention abortion rights directly, courts should not infer that they exist. The opposite school – sometimes known in the United States as living constitutionalism, and in Commonwealth realms such as Canada as the “living tree” doctrine – posits that, as societies evolve, the interpretation of laws should be broad enough to account for those changes.
Through groups such as the conservative Federalist Society, originalists, including anti-abortionists, have spent more than 30 years trying to influence judicial appointments so that their school prevails at the highest levels of the U.S. court system. They found a willing ally in president Donald Trump, who appointed three of the judges now opposing Roe – Mr. Gorsuch, Mr. Kavanaugh and Ms. Barrett – and said overturning Roe was a possible outcome of this. Mr. Trump also blocked federal funding for groups such as Planned Parenthood, which the Biden administration later tried to undo.
Scottlynn Ballard attends an abortion-rights rally on May 14 at Kiener Plaza in downtown St. Louis. "Now is the time to rally and to continue the fight over body autonomy," said Ms. Ballard.Laurie Skrivan/St. Louis Post-Dispatch via AP
What can Joe Biden and Congress do?
When the draft decision was leaked, President Joe Biden called it a “fundamental shift in American jurisprudence” that would endanger not just abortion rights but many other American freedoms. He’s said he would take steps to enshrine Roe’s protections in legislation, but there are barriers to doing that in the current Congress – and with midterm elections coming up on Nov. 8, it’s not clear whether the next Congress would have an easier or harder time passing such a law. Here are two main arenas where the Democrats can continue the fight.
- Congressional: The House of Representatives, which the Democrats currently control, voted last year to pass the Women’s Health Protection Act, which would make Roe’s principles part of federal law. It got stalled in the Senate, where the two parties are evenly matched. Democrats tried again the week after the Supreme Court leak; again, Senate Republicans said no. Such stalemates are likely to continue without changes to a Senate procedure called the filibuster, but neither Mr. Biden nor Democratic leaders in the Senate have said they would pursue that. They have said it’s important for pro-choice candidates to be elected in the midterms so the balance in Congress shifts.
- State: Devolving responsibility for abortion law to the states will dramatically heat up the races for state governorships and legislatures this fall. From now into the summer, many of these races are in the primary stage, in which state parties decide who their candidates will be.
How do abortion rights work in Canada?
Abortion is legal across Canada, at any stage of pregnancy and for any reason. That’s the result of 1988′s R. v Morgentaler ruling, in which Canada’s Supreme Court struck down a law that forbade abortions except in cases where the mother’s life was threatened. Because Canada has only one Criminal Code in federal jurisdiction – unlike the United States, which has 50, one for each state – there can never be a situation where some provinces deem abortion illegal but not others.
Access to abortion is another matter. While abortion is covered under the Canada Health Act, that only means provinces can’t make patients pay for the procedure; it doesn’t obligate provinces to provide it. From 1982 to 2017, Prince Edward Island didn’t offer abortions locally, and it took a Charter of Rights and Freedoms challenge to change the provincial government’s mind on the issue.
Abortion clinic accessibility
across Canada (as of July, 2019)
Abortion clinics are mainly located in large urban centres, meaning women who live outside those areas must travel long distances and pay out-of-pocket expenses to access the service. This map illustrates driving times to abortion clinics from cities across Canada.
LEGEND
Population centres*
by driving distance to
an abortion clinic
Areas within
driving range to
an abortion clinic
2-hour drive
Longer than 2-hours
6-hour drive
Longer than 6-hours
*With 30,000 people or more
WESTERN CANADA
Yukon
NWT
Nunavut
B.C.
Prince
George
Grande
Prairie
Alta.
Fort McMurray
Campbell
River
Sask.
Lloydminster
Man.
Courtenay
Lethbridge
Medicine Hat
EASTERN CANADA
Nunavut
N.L.
Que.
Ont.
PEI
Thunder
Bay
N.S.
N.B.
Kingston
Sault Ste.
Marie
North Bay
Sudbury
Leamington
Windsor
Note: Travel estimates use historic traffic data provided by HERE Technologies. Actual travel times may vary.
MURAT YÜKSELIR / THE GLOBE AND MAIL, SOURCE:
HERE TECHNOLOGIES; STATISTICS CANADA
Abortion clinic accessibility
across Canada (as of July, 2019)
Abortion clinics are mainly located in large urban centres, meaning women who live outside those areas must travel long distances and pay out-of-pocket expenses to access the service. This map illustrates driving times to abortion clinics from cities across Canada.
LEGEND
Population centres*
by driving distance to
an abortion clinic
Areas within
driving range to
an abortion clinic
2-hour drive
Longer than 2-hours
6-hour drive
Longer than 6-hours
*With 30,000 people or more
WESTERN CANADA
Yukon
NWT
Nunavut
B.C.
Prince
George
Grande
Prairie
Alta.
Fort McMurray
Campbell
River
Sask.
Lloydminster
Man.
Ont.
Courtenay
Lethbridge
Medicine Hat
EASTERN CANADA
Nunavut
N.L.
Que.
Ont.
PEI
Thunder
Bay
N.S.
N.B.
Kingston
Sault Ste.
Marie
North Bay
Sudbury
Leamington
Windsor
Note: Travel estimates use historic traffic data provided by HERE Technologies. Actual travel times may vary.
MURAT YÜKSELIR / THE GLOBE AND MAIL, SOURCE:
HERE TECHNOLOGIES; STATISTICS CANADA
Abortion clinic accessibility across Canada (as of July, 2019)
LEGEND
Abortion clinics are mainly located in large urban centres, meaning women who live outside those areas must travel long distances and pay out-of-pocket expenses to access the service. This map illustrates driving times to abortion clinics from cities across Canada
Areas within driving range
to an abortion clinic
2-hour drive
6-hour drive
Population centres* by driving
distance to an abortion clinic
Longer than 2-hours
Longer than 6-hours
Yukon
*With 30,000 people or more
NWT
Nunavut
B.C.
Grande
Prairie
Prince
George
Alta.
Fort McMurray
Campbell
River
Sask.
N.L.
Lloydminster
Man.
Que.
Ont.
Courtenay
PEI
Lethbridge
N.S.
Medicine Hat
Thunder Bay
N.B.
Sault Ste. Marie
Kingston
Sudbury
North Bay
Leamington
Windsor
Note: Travel estimates use historic traffic data provided by HERE Technologies. Actual travel times may vary.
MURAT YÜKSELIR / THE GLOBE AND MAIL SOURCE: HERE TECHNOLOGIES; STATISTICS CANADA
Where in the world is abortion legal or illegal?
Pro-choice protesters chant at a group of religious proselytizers in Mexico City in 2019.Rebecca Blackwell/The Associated Press
Abortion is practiced in every country, whether its government bans the procedure or not: The difference is whether the abortions are done safely and by accredited professionals, or secretly and unsafely.
Worldwide, there are about 73 million abortions every year, the World Health Organization estimates, of which 45 per cent can be considered unsafe. Most developed countries allow abortion without restriction, but developing countries in Latin America, Africa and Asia generally do not; as a result, the developing world accounts for 97 per cent of unsafe abortions, the WHO says. Without Roe, the situation in the United States more closely resembles Mexico’s, where most of the 32 states have anti-abortion statutes (despite a recent decision by its top court saying it was unconstitutional to criminally prosecute people for getting abortions).
More reading
From our U.S. correspondents
As thousands across U.S. march to defend abortion rights, activists call for a ‘summer of rage’
If Roe v. Wade is overturned, U.S. jurisprudence may shift to the right for decades to come
Texas’s abortion law gives preview of how bans will affect racialized communities
Opinion
Elizabeth Renzetti: The looming reversal of Roe v. Wade is unjust – but it should be no surprise
Doug Saunders: Even more disturbing than Washington’s looming abortion-rights reversal is Beijing’s
Rosemary Westwood: The abortion debate will cleave the U.S. in two
Abortion rights in Canada
Jessica Leeder: I wanted an abortion in Nova Scotia, but all around, barriers still remained
André Picard: Canada’s history with the abortion pill is shameful
Compiled by Globe staff
With reports from Reuters and The Associated Press
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