The implications of the recent overturn of U.S. Supreme Court case Roe v. Wade have become a hot topic of discussion, both in the U.S. and at Queen’s.
Nearly half of the U.S. states are expected to outlaw or severely restrict abortion. Many states enacted trigger laws, which automatically banned abortion in the first and second trimesters of a pregnancy.
To examine the legal process behind the overturning, Queen’s Professor of Law Nick Bala—an expert in Constitutional issues—spoke to The Journal about the US Supreme Courts’ role in this decision.
He noted the changing composition of the Supreme Court was a key element in the decision.
“Now very conservative judges on the Supreme Court [are] appointed for life […] this changing composition of the American Supreme Court is very significant and will have an effect presumed for a very long time,” Bala said.
Due to their lifelong tenure, the Supreme Court justices who made the decision to overturn Roe will sit on the Court until they die or retire, Bala said.
Bala also spoke to questions surrounding the intersection of abortion bans and individual liberty.
“Widely accepted among constitutional scholars, lawyers, and the public, [the right to abortion] would be included within the concept of liberty,” Bala said. “The Dobbs decision illustrates that what the constitution means is determined by the court.”
The majority of the US Supreme Court’s justices use an “originalist” reading of the US Constitution. According to Bala, they get to choose whether the Constitution’s definition of liberty includes abortion.
“If you had a court that had judges who had views—the views that the majority of the USA’s Supreme court has—they could say liberty doesn’t include abortion.”
Bala explained constitutional scholars and lawyers widely accept abortion is included within the concept of liberty. Bala believes the decision shows how the court determines the Constitution’s level of flexibility.
Bala discussed the impact of the overturn for both Americans and Canadians. He said in the United States the ruling plays into a matter of state law—some states can choose to enact restrictive legislation while other states don’t.
“There is a lot of political dialogue and legislative action in some states to restrict access to abortion or guarantee access to abortion,” Bala said.
According to Bala, Americans in need of abortion will have to travel from conservative states with bans on abortion to more liberal states—or even Canada.
“It’s clear that women are coming into Canada. Michigan is a state with very restrictive abortion laws, so women are coming from Detroit and going to Windsor [for abortion access],” Bala said.
Travelling comes with costs and time, which not all pregnant people have. Pregnant people who receive an illegal abortion—in some states—risk prosecution of themselves and providers of the service, according to Bala.
Bala remains hopeful that Canadians will not be impacted similarly.
“I can’t see us limiting access to abortion. The conservative party is in the process of having a leadership race, and the apparent lead in candidate is definitely conservative on many issues, but he has made [it] clear that abortion is not one of [them].”
Bala also said the United States is more polarized and politicized than Canada. He referred to the Trucker’s Convoy, which involved a polarized discourse around COVID-19 and vaccine mandates.
“We largely resolved those issues peacefully in Canada, but it shows our society, democracy, is potentially fragile,” Bala said.
Bala provided contrast between Canada’s political culture and that of the United States.
“Our Supreme Court, our judicial process, is much less politicized than in the United States […] Canadian judges don’t vote in a block or see clear political agendas that we do in the United States.”
“We just have a different culture, and we don’t have lifetime appointments, and we have a much less politicized process of appointment of judges and probably a different view of the legal process—and we are very fortunate for that.”
Tags
Abortion, Canada, Law, Originalism, Roe, United States, Wade
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