A leaked document published on May 2 by the website Politico shows that the US Supreme Court may be ready to overturn Roe v. Wade — the 1973 Supreme Court decision that made abortion legal in the United States.
We spoke with Allard Law Professors Erez Aloni and Isabel Grant about what this could mean for reproductive rights in the United States and about just how secure women’s access to abortion is in Canada.
What will happen if the US Supreme Court overturns Roe v. Wade?
Erez: There are 25 or 26 states that are likely to ban abortion — around half of states. In some states this may mean criminalizing performing an abortion. Others might restrict abortion so significantly that it’s basically unavailable. For example, by enacting a ban on abortions after six weeks, before a fetus is viable and before many women would even find out that they're pregnant.
Some of these states already have abortions bans on the books that currently aren’t enforced because of Roe v. Wade. They could be revived easily.
How will this impact women in the United States?
Erez: During the pandemic there was a temporary ban on abortions in Texas, providing a view into what happens when abortions are banned. The number of out-of-state abortions increased dramatically during that short period, so we know that one of the consequences will be an increase in pregnant people travelling to states that do allow abortions. It’s likely clinics in those states will soon begin to have an overcapacity problem.
The other thing we saw is that this led to delays in treatment, which meant a huge increase in second-trimester abortions.
Finally, restricting or banning abortion will harm mostly women with low income and racialized people — they’re the most likely to be unable to travel out of state, and they’re at the greatest risk during pregnancy. Black and Indigenous women in the US are three times more likely than white women to die due to pregnancy complications. The burden will be disproportionately borne by people of colour.
Isabel: Overturning Roe will not eliminate abortions. What it will do is reduce access to safe abortions in a large number of states.
This is a cruel and devastating blow for the health and well-being of American women, and as Erez has noted, will harm disproportionately racialized and poor women who don’t have the resources to travel to Canada or out of state. There is no doubt that women will die if Roe is overturned
How likely is it that Roe v. Wade will be overturned?
Isabel: I think it’s very likely. The Chief Justice has now confirmed the leak, and we see five judges on that majority judgment — five judges being all that’s needed. And now that the names of the majority have been leaked, it becomes harder to persuade anyone to jump over to the dissent, which otherwise can happen as judgments evolve from a first draft to the final product and sometimes even from a majority to a minority.
Erez: The Chief Justice could potentially convince at least one member of the five majority justices to modify their position — perhaps upholding the Mississippi law that bars abortion after 15 weeks on a narrower ground without overturning Roe v. Wade. But now that the draft has been published, it’s difficult to see one of the justices changing their minds. That might even have been the purpose of this leak. The timing suggests that may have been the goal.
If Roe v. Wade is overturned, what could be done to strengthen the protection of women's reproductive rights in the United States?
Erez: There are several things that can be done — and that are being done. There’s now an attempt to pass a federal law that will guarantee access to abortion to every pregnant person. This proposed statute may go beyond a negative right to abortion to repeal the Hyde Amendment that bars the use of Medicaid to fund abortion. The other thing to mention is that at least 11 states have constitutional protections for this right, and certainly more states can do the same.
Repealing Roe will be a turning point. As Carol Sanger from Columbia Law School has noted, in some ways, Roe v. Wade was the best thing that happened to the conservative anti-abortion rights groups — because it energized and mobilized them.
By the same token, if Roe v. Wade is in fact overturned, it might ultimately have a positive effect. Since 2001 there have been over 500 abortion restrictions across the US. In some places, access to safe abortion was already so reduced, that in effect it didn't exist. Overturning Roe v. Wade might galvanize activism to protect reproductive health (and perhaps energize some to vote for democrats in midterm elections).
How likely is it that something similar could happen in Canada?
Isabel: Women’s access to abortion is not as secure as we think in Canada. Prior to the Morgentaler decision in 1988, procuring an abortion, except with the permission of a therapeutic abortion committee in a hospital, was a crime — and a serious one. A doctor who performed an abortion could be punished by up to life in prison and women could face a maximum two years’ incarceration, although as far as I know no woman was ever prosecuted.
The Morgentaler decision did limit the extent to which the state could criminalize abortion, but the majority decision is quite narrow and does not guarantee a constitutional right to abortion or guarantee access to abortions. And even though abortion is not criminal in Canada, that doesn’t prevent a future government from trying to make it so, nor does it mean that provinces actually provide access to abortion services across the country.
What are the main threats to abortion rights for Canadian women?
Isabel: The main threat is access. Where do you have to go, how far do you have to travel, and how much money do you need to obtain an abortion in a timely way? Time is of the essence when women are seeking abortions. Most provinces and territories have gestational limits on when women can obtain an abortion. In parts of Canada, New Brunswick and PEI, for example, or in the north or in rural or remote areas, access is much more limited and women are much more likely to have to travel to a major city with all the stresses, delays and costs that entails.
So while Morgentaler struck down the criminal prohibition, there is no constitutional right to abortion in Canada, nor a right to have it provided in your community. Abortion access is not something Canadian women can take for granted.