By now the US Supreme Court’s decision in Dobbs, which overruled Roe, is common knowledge. But what these two decisions actually decided is often misunderstood or misrepresented. And the problems they are trying to address are rarely considered in the fight between  “pro life” and “pro choice”.

A central legal issue underlying both Roe and Dobbs was not whether women should be permitted to have abortions, but who should decide the law governing abortion. Should judges decide or should legislators decide?  As both courts and legislatures are branches of government the unquestioned assumption has been that only one or the other branch of government should decide this.  The questions which have not asked are:

• Why should any branch of government make the decision about who may have abortion?
• What is the problem the abortion law is trying to solve? 
• What is the best way of solving it?

The Endless Debate Over the US Constitution

Contrary to some media accounts. Roe didn’t grant an unlimited right to abortion and Dobbs didn’t say that a woman has no freedom to choose. These two decisions decided who — which branch of the US government — can make that decision: the judiciary or the legislature.  Roe held that judges, through constitutional interpretation, can decide which laws governing abortions are or are not constitutional.  Dobbs held that the proper constitutional interpretation is that there is no US constitutional protection for abortion, hence the state legislatures can legislate. But in either case, abortion is a decision controlled by a branch of government.

The “pro choice” advocates argue that Dobbs took away a woman’s constitutional right to choose what she may do with her body. The “pro life” advocates argue that this constitutional right never existed in the first place, the Roe court merely invented it, and it took 50 years to get it corrected in Dobbs. This endless debate about the intention of the authors of the constitution — when the constitution doesn’t specifically mention abortion —  is not easy to resolve. The abortion law battles have been a costly litigation game with alternating winners and losers. 

More Thought, Less Emotion

The abortion debate has long been sharply polarized in Western countries, particularly in the US, with large, highly emotional protests.  But gut feelings and mass demonstrations do not provide the basis for rational decision-making.  We need less emotion, fewer assumptions and more facts.  To help this process I suggest reviewing the questions below, and then examining the Canadian experience, where there has been no law governing abortion for the past 34 years.

Question 1

Why does this country (or state or province) need a law controlling abortion?  (What would happen without such a law?)

Question 2

If an abortion law is necessary who should make the law? Judges (as done in Roe) or legislators (as decided by Dobbs)?

If judges, why are they qualified to decide such questions?  If legislators, how do politicians know what the right answer is in the many and varied situations in which abortions are sought? Is there even one right answer?

Question 3

If an abortion law is necessary, what restrictions should the law impose, in what situations on (i) women seeking an abortion, and/or (ii) physicians willing to providing an abortion under some circumstances but not others?

The Canadian Experience

The US is not the only country that has had laws dealing with abortion.

We can learn from the laws of other countries with legal systems similar to the US.  Canada used to have an abortion law as part of its Criminal Code, but after the Supreme Court of Canada struck that law down in 1988, Canada has had no abortion for 34 years.  It’s as if Canada had implicitly decided that it does not need a law controlling abortion.  What has been the Canadian experience since 1988? Keep reading.

Before discussing the Canadian situation we need a better understanding of the problems that can be created with the concept of constitutional “rights”. (I have blogged about this in greater detail: In a Conflict of Rights Who Wins?)

The Problem with “Rightstalk”

The central issue is not just rights granted by the constitution, but the problem of “rights” itself, or what has been called “rightstalk”. As soon as we talk about rights, we immediately narrow the range of individual decision-making. That’s because rights are externally based in a law or constitution outside of the person.  But someone’s claimed rights, usually based on general language like “freedom of speech” often collide with the rights claims of others or offend the moral values of others. Then they become the subject of endless litigation, creating unpredictable, unsatisfactory decisions.

If the freedom to do something is based on a constitutional “rights“ claim in a written constitution that doesn’t even mention that right, that claim can become a right if written in by judicial “interpretation”. That is actually a judicial addition, a new right granted by judge-made law. This judicial creativity is not unique to Roe or to the US. It is often seen in other constitutional democracies. And, the older the constitution, the more often it is likely to be done. But a new interpretation by new judges can grant or remove a previous judge-made right, as Dobbs did with Roe.  Unless the US approves a constitutional amendment that grants the right to abortion, with limits specified in clear and unambiguous language, or unless the vast majority of the US electorate agrees to accept the right through referenda or elections, the litigation about the constitutional right will continue.

The result in Dobbs was not unpredictable. Perhaps it was just a matter of time and which administration’s appointees form the majority on the court. But in some circumstances, as seen in Canada, no law may be better than a temporary constitutional interpretation that can be changed at any time, unpredictably, and with no recourse for perhaps decades.  Abortion law in the US has become a pendulum, swinging in half centuries.  The pendulum will keep swinging as long as the country is divided by strong feelings about the issue and uses the courts or the legislatures to impose their feelings. 

Is there a workable alternative that isn’t rights-based? Instead of arguing for a “constitutional right” to abortion we might pull back and ask: what it is that a country is trying to accomplish with a law on abortion? What social problem is that society trying to solve? Is constitutional rights litigation the only solution? 

What is the Role of the State in Abortion?

In 1967, Justice Minister Pierre Trudeau introduced a bill in Parliament which included an amendment to the provision of the Criminal Code which prohibited abortions. The bill, known as the Criminal Law Amendment Act, 1968–69, continued the basic prohibition on abortions, with the potential life sentence if convicted, but made an exception for abortions performed in a hospital with the approval of that hospital’s three-doctor therapeutic abortion committee. The bill became law in 1969.

The impetus for this reform is explained in Wikipedia. The movement to liberalize Canada’s abortion laws began in the 1960s, led by Ontario’s former Chief Coroner, the late Morton Shulman. Many abortions at that time were performed by amateurs, pumping Lysol into the woman’s womb. The mortality rate was high and the infection rate over 50%. Shulman said:

By the time I became Chief Coroner, I had had the unpleasant experience of seeing the bodies of some dozens of young women who had died as a result of these amateur abortions.

Shulman instructed his coroners to call a public inquest into each abortion death. He described one case that he believed was the turning point, that of a 34-year-old mother of three children, who died of a massive infection after an illegal abortion. At the inquest, the jury recommended that the laws about therapeutic abortion be revised. Newspapers published editorials also recommending reform. The eventual amendment closely followed the recommendations of the coroners’ juries.

Canada’s leading abortion case, decided by the Supreme Court of Canada in 1988, was R. v Morgentaler. The challenged law, then numbered section 251 of Canada’s Criminal Code, was the same 1969 law requiring the approval of a committee of three doctors. As the availability of abortion rested on the opinions of the doctors, in effect, the doctors were the law.  And there were few such committees, making access to abortion difficult or impossible in many parts of the country.

Seven of the nine judges agreed to strike down section 251, two dissented. The judges wrote several separate judgments. I have chosen to quote, below, parts of the two judgments (one by the majority and one by the dissent) that I found most relevant to the US debate in Roe and Dobbs.

 Justice Bertha Wilson, the first woman to be appointed to the Supreme Court of Canada, concurring with the majority, wrote:

Section 251 [of the Criminal Code] is more deeply flawed than just subjecting women to considerable emotional stress and unnecessary physical risk. It asserts that the woman’s capacity to reproduce is to be subject, not to her own control, but to that of the state. This is a direct interference with the woman’s physical “person”. ….

The situation respecting a woman’s right to control her own person becomes more complex when she becomes pregnant, and some statutory control may be appropriate. Section 1 of the Charter authorizes reasonable limits to be put upon the woman’s right having regard to the fact of the developing foetus within her body.

…. The precise point in the development of the foetus at which the state’s interest in its protection becomes “compelling” should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines.

Justices William McIntyre and Gérard La Forest, (dissenting), wrote, in language somewhat similar to the US Supreme Court majority decision in Dobbs:

…… The courts must confine themselves to such democratic values as are clearly expressed in the Charter and refrain from imposing or creating rights with no identifiable base in the Charter. The Court is not entitled to define a right in a manner unrelated to the interest that the right in question was meant to protect.

The proposition that women enjoy a constitutional right to have an abortion is devoid of support in either the language, structure or history of the constitutional text, in constitutional tradition, or in the history, traditions or underlying philosophies of our society.

Consider the issue Justice Wilson raised about at what stage during the pregnancy the state’s interest in the fetus trumps that of the woman. Justice Wilson was right to decide that the stage at which abortions should stop is not a decision that the judicial branch of government should make. But then, like the US court in Dobbs, she tossed the problem back to the legislature, which is another branch of government.  

Contrary to popular misconception, Morgentaler didn’t decide that women had a right to abortion, but merely that the three-doctor committee structure was an unconstitutional barrier. Canada has enacted no new abortion law since that case was decided in 1988.

If we agree with Justice Wilson, and with the US Supreme Court in Dobbs, that judges shouldn’t decide the matter, it does not necessarily follow that the decision must reside in another branch of government rather than in the individual. That remains a decision that a society can make, as Canada has done.

The Legislative Mandate?

In Canadian constitutional theory the legislature is supreme because the legislature is democratically elected, while judges are merely appointed.  But let’s not push the legislative supremacy theory too far.

In Canada’s 2021 federal election, for example, only 62.6 percent of eligible voters actually voted. The party that formed the government received only 32.6 percent of the votes, less than 1/3. So 2/3 of voters did not vote for the governing party.   62.6 % x 32.6 % = 20.4%. Why is it that the 20.4 percent popular government is legitimately mandated to make that decision for the 7.3 million women of child bearing age, about 1/2 of the adult female population? And how does this branch of government know what the right answer is in a broad range of individual circumstances?  Is there even a single right answer for everyone in every circumstance?   

In the US, presidential elections have a high turnout. There was an exceptional 66.9 percent of eligible voters (62 percent of the voting age population) voting in the last presidential election.  President Biden received 51.3 percent of the votes, or approximately 34 percent of the votes of eligible voters.  But in midterm elections the turnout typically drops to around 40 percent, meaning that the elected representatives are typically elected by some 20-25 percent of the adult population. However, both the President and the U.S. Congress have very limited authority over the criminal laws enacted by US state legislatures, which are the principal legislators of abortion law.  Voter turnout statistics in state elections are difficult to find online, and turnout varies widely across individual states.  Nevertheless, even in a two-party system the percentage of the adult population choosing the state legislators is well below 50 percent, and probably half that. 

The result is that most of the population didn’t vote for the winners.  This result is not undemocratic in the electoral sense, but it somewhat undermines the force of the argument that just because a minority voted for them, “elected representatives” have a clear mandate to impose such laws whereas unelected judges do not.

What Would Happen Without An Abortion Law?

Some anti-abortion advocates argue that all abortion is murder because from the moment of conception there is a human life to be protected, hence all abortion must be criminalized. But that appears to be a minority view. The more common opinion, like that of Justice Wilson, is that there is a need to control and limit abortion as the pregnancy develops and that at a certain unspecified stage, it must be prohibited in most cases.

While Justice Wilson held that the state had a legitimate interest in controlling the availability of abortion in the later stages of pregnancy, that assumes that without government control there would be too many late stage abortions.  It was not unreasonable for her to have made that assumption in the absence of any empirical evidence about whether, without government control, numerous abortions might be performed in the later stages of pregnancy.  But that evidence in now available, here in Canada, a country with no abortion law.  And, like other medical procedures in Canada, abortions are publicly financed through Canada’s medicare system. Thus, Canada’s abortion statistics are highly accurate.

Consider Australia. Abortion in Australia is legal. It has been fully decriminalized in all states, starting with Western Australia in 1998 and last, in 2022, in South Australia.

In New Zealand a woman who is not more than 20 weeks pregnant may seek abortion from a health practitioner. Past 20 weeks she must obtain approval from a health practitioner, who decides whether the procedure is “clinically appropriate” and consults with at least one other qualified practitioner.

UK law proves a number of grounds for permitting abortion, but the primary one is risk of injury to the physical or mental health of the pregnant woman or any existing children of her family (up to a limit of 24 weeks). This ground is typically interpreted liberally with regards to mental health to create a de facto state of abortion on demand, and nearly all abortions—98% in 2019 and 2020—are performed to protect the woman’s mental health. Again, the determination of mental health is made by the doctor, after interviewing the patient, so the application of the law has been effectively delegated to individual doctors.

Do women, in consultation with their doctors, generally make morally acceptable decisions in balancing their individual and family needs with the protection of the fetus? The lengthy Canadian experience serves as a laboratory test.  Canada has allowed the decision to be made by the pregnant woman in consultation with her doctor, who is subject to the medical profession’s ethics. 

Abortion Statistics in Canada

Canada Abortion Statistics are from March 28, 2022:

As summarized above, despite some annual fluctuations, the long term trend in the number of abortions has declined by some 30 percent over the last 15 years. More than 86 percent of abortions have been within the first 12 weeks and almost none are done after 22-24 weeks. If you recall the Mississippi law in issue in Dobbs, its prohibition was after 15 weeks, which is similar to the 12 weeks in Canada. Thus, if Mississippi had had no law, and the doctors in that state had applied their ethics, the result may have been quite similar to Canada.  But then it would be the result of individual moral choices freely made rather than a top-down government command that is then subjected to litigation.

The decline in the number of abortions performed may be explained by a number of factors, including both better methods of birth control and better education about using them.

Given the decades long acrimonious debate in the US I doubt that the Canadian solution (or those of Australia, New Zealand or the UK) would be adopted under the law of many US states today. Nevertheless, some US states  might find the experience of these countries useful in setting boundaries.

Conclusion

I will let readers draw their own conclusions, having regard to the following questions:

Should a woman need permission from any branch of government to have an abortion? Why, or why not?

If yes, should that be under judge-made law (as in Roe) or law enacted by legislators (as decided by Dobbs)?

If yes, what restrictions on abortion should the law impose?

Readers may provide their comments on these questions, or on any other issues they consider relevant to this post. Please keep your comments civil and respectful.