Statement from the Women Lawyers Forum on Dobbs decision

  • July 12, 2022

The Women Lawyers Forum of the Canadian Bar Association echoes President Stephen Rotstein’s statement of June 24, 2022, expressing the CBA’s deep concern about Dobbs v Jackson Women’s Health Organization. In Dobbs, the Supreme Court of the United States overruled its previous decisions in Roe v Wade and Planned Parenthood of Southeastern Pa. v Casey, which had established a constitutional right to abortion access in the United States. That constitutional right no longer exists in American law, with devastating impacts that are already being felt.

Here in Canada, abortion was completely decriminalized in 1988, thanks to the Supreme Court of Canada’s decision in R v Morgentaler. The Court found that the remaining Criminal Code restrictions on abortion access infringed the right to liberty and security of the person, as protected under section 7 of the Canadian Charter of Rights and Freedoms. Today, abortion in Canada is fully legal, and generally treated as an insured health service. Robust protections for abortion access, including surgical (procedural) and medication abortion, are baked into our health care system.

But the road has not always been smooth since 1988, as some federal and provincial lawmakers have tried to impose legal restrictions on abortion access. While none of these efforts have succeeded in toppling Morgentaler or re-introducing criminal laws on abortion, there are still barriers to access in many parts of the country. The fight is not over.

President Rotstein concluded his statement by saying it is important to “continue to fight for equality.” We would amplify that call. Abortion access enables people to control their futures, shape their families, and fully participate in society. The dissenting justices in Dobbs recognized this: “The abortion right is also embedded in the lives of women” and others who can become pregnant, “shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality.”

Prof. Joanna Erdman of the Schulich School of Law recently wrote that: “Morgentaler is a good judgment, but if there was to be a Canadian Supreme Court judgment on abortion rights today, it would likely read differently. Charter equality rights would take a more central role: abortion rights as linked to equality and justice in social and economic life.”

We agree, and we urge Canadian lawyers to think and talk about abortion access in this way: as a fundamental issue of equality, protected under section 15 of the Charter as well as section 7.

We would also like to highlight the WLF’s ongoing work, led by the WLF Identities Committee, to make our mandate and projects more inclusive. Conversations about abortion care are a good example. Helpful resources on the importance of using gender-inclusive language when we talk about abortion can be found on the ACLU website and on the Abortion Rights Coalition of Canada website.

To stay up to date on the WLF’s work, please visit our website — and get involved. There is lots of work ahead.