'It could be disastrous': Calgary law expert looks at impact of Roe v. Wade ruling

·5 min read
Pro-abortion and anti-abortion demonstrators protest Tuesday outside the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year.  (Evelyn Hockstein/Reuters - image credit)
Pro-abortion and anti-abortion demonstrators protest Tuesday outside the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year. (Evelyn Hockstein/Reuters - image credit)

The potential overturning of Roe v. Wade in the United States is sparking conversations across North America on women's rights and access to abortion services.

A leaked document from the U.S. Supreme Court suggests the court's conservative majority could soon strike down the landmark decision, which legalized abortion.

CBC Calgary News at 6 host Rob Brown spoke with Calgary-based lawyer Kathleen Mahoney about the news Tuesday. Mahoney is a professor of law at the University of Calgary with more than 35 years of experience.

She is also the founder of the Women's Legal Education and Action Fund, which was set up to ensure the equal rights of women and girls under the law.

WATCH | How could the Roe v. Wade decision impact abortion access, and body politic, here in Alberta?

The conversation has been edited for clarity and length.

Brown: Kathleen, what did you think of this leak when you heard about it?

Mahoney: Well, it was somewhat disturbing to think that the security of the United States Supreme Court was lax enough that this could happen. Their decisions, of course, are very influential, not only in the U.S., but elsewhere. So this has created quite a kerfuffle, and it's unfortunate that this has happened.

Do you take comfort in the fact that what was leaked was a draft?

I mean, drafts are circulated and judges comment, and often drafts are changed. And so, I'm sure some of the people that are now demonstrating in front of the courthouse in Washington are thinking they might influence the court, but that in itself is not a good thing, either, in terms of the administration of justice.

Justices are supposed to be fair and impartial and decide cases based on the law and the facts and not be influenced by demonstrations. So, if they do change their opinion now, then … the final decision is going to be somewhat attacked, I think, as being influenced by people in the street. So it's a bad situation any way you look at it.

Alex Brandon/The Associated Press
Alex Brandon/The Associated Press

If the final decision knocks down Roe v. Wade, it's overturned, can you just explain what that could mean for women and girls in the U.S.?

It could be disastrous. We know that prior to Roe v. Wade in the U.S. and prior to our decision in Morgentaler in Canada, thousands of women died because they had illegal and unsafe abortions. And we know that when women get pregnant, some people just don't want to be pregnant and can't be for all sorts of reasons, and they will get abortions no matter how available or legal they are. So it's going to put hundreds of thousands of women at-risk, in my view, if this law is struck down.

In the U.S., every state makes their own criminal laws. So I think what will result if Roe v. Wade is struck down is that there's going to be very much a patchwork of states, some allowing abortions, some making them criminal offences, some of them already are.

So it's going to really impact women who probably need the service more than most women do, which are poor women and disadvantaged women to begin with.

Michael A. McCoy/Reuters
Michael A. McCoy/Reuters

On this side of the border, the federal minister of Families and Social Development is saying that Americans who want an abortion, and who can obviously afford to come to Canada, will get one. Can we handle that kind of demand here?

Well, that's going to be interesting to see. I mean, abortion access in Canada isn't equal, isn't equitable.

In British Columbia, there's much more access, for example, than in Alberta. There's access in Calgary and Edmonton, but if you happen to live in rural areas, the access is not there. Ontario has better access than Manitoba, and so it varies across the country because even though we don't criminalize abortion in this country, the Canada Health Act does not mandate provinces to absolutely provide it.

It's up to the provinces' exercise of discretion, the way in which they spend their money, the way in which they permit hospitals to set their own mandates, the way in which doctors can set out standards and so on.

So the issue goes both ways. But I think definitely what we're going to see in Canada is an influx of American women trying to access abortion in this country, and whether or not our facilities can handle it is a very good question.

Sean Kilpatrick/The Canadian Press
Sean Kilpatrick/The Canadian Press

And if the U.S. Supreme Court does overturn the abortion law, do you think it might influence our body politic?

I mean, it's always been a simmering issue in a way in Canada. Ever since the Morgentaler decision, which was in 1988, there have been attempts to restrict abortion ... in fact, there is absolutely no restriction on access to abortion, from a legal perspective.

As I said, access is a different question. And so there's been attempts to put some limits around the permissible situation we have.

So what it could do is generate and give some fuel to the anti-abortion rhetoric and political stance being taken.

Michelle Bellefontaine/CBC
Michelle Bellefontaine/CBC

Do you have any reason to think this could happen in our province?

Well, it's hard to predict politicians and what they will do to gain votes. I think very much this would depend on them taking the temperature of the population.

I think that now in Canada, whenever polls are taken ... the vast majority of Canadians would not like to see abortion restrictions put into place again, certainly not criminalized.

So, anything is possible if people can see political advantage to it.

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