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A leaked draft of a Supreme Court decision has left pro-choice Americans fearful of what happens if Roe v Wade is overturned and conservative states get to keep restrictive laws. Here’s what you need to know

Abortion-rights demonstrators hold up letters outside the Supreme Court in Washington on May 14.Jacquelyn Martin/The Associated Press

The U.S. Supreme Court hasn’t yet overturned its 1973 Roe v. Wade ruling, the foundation of modern American abortion rights – but a draft majority decision leaked on May 2 suggests the judges are headed that way.

Some states are organizing bans that could take effect soon after a final decision comes out; Democrats have tried (so far without success) to codify Roe’s protections into federal legislation, and elect more pro-choice candidates in Nov. 8′s midterms. Meanwhile, abortion providers and the Americans who rely on their services are worried that not just reproductive rights, but other court-protected freedoms, could soon disappear.

Here’s what Canadians should know about what’s happening south of the border, and how it’s renewed questions about inequities in abortion access here.


Politico’s Supreme Court leak: The basics

The Contemplation of Justice statue is seen at the U.S. Supreme Court building.Evelyn Hockstein/Reuters

What the Supreme Court’s draft decision says

On May 2, the U.S. media outlet Politico published a leaked document, dated February of 2022 and labelled “1st Draft,” outlining the debate among Supreme Court justices about a challenge by the state of Mississippi to Roe v. Wade, the 1973 case that legalized abortion in the United States. The court later confirmed that the document was real but didn’t reflect “the final position of any member.”

The draft calls for the rejection of Roe v. Wade and a 1992 ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey, that clarified its conclusions:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.
... Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

Supreme Court Judge Samuel Alito in 2019.Susan Walsh/The Associated Press

Which judges support overturning Roe v. Wade?

The decision was signed by Samuel Alito, a judge appointed by former Republican president George W. Bush. Politico reported that four other Republican-appointed judges voted with Mr. Alito: Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh.

Will this draft become official at some point?

The court had been expected to give a final word on the Mississippi case before its term ends in late June or early July, but it’s hard to say whether the February draft is their definitive take. Judges’ deliberations are supposed to be secret, and their opinions can often change in the drafting process. It’s rare for them to be leaked in advance in this way.

Which U.S. states are likely to ban abortion?

Twenty-one states, shown below in purple, have laws or constitutional amendments in place that show an inclination to ban abortion as quickly as possible if Roe v. Wade is overturned or significantly weakened by the U.S. Supreme Court.

SOURCE: REUTERS

Twenty-one states, shown below in purple, have laws or constitutional amendments in place that show an inclination to ban abortion as quickly as possible if Roe v. Wade is overturned or significantly weakened by the U.S. Supreme Court.

SOURCE: REUTERS

Twenty-one states, shown below in purple, have laws or constitutional amendments in place that show an inclination to ban abortion as quickly as possible if Roe v. Wade is overturned or significantly weakened by the U.S. Supreme Court.

Wash.

Maine

Mont.

N.D.

Vt.

Minn.

Ore.

N.H.

Mass.

Idaho

Wis.

N.Y.

S.D.

R.I.

Mich.

Wyo.

Conn.

Pa.

Iowa

N.J.

Neb.

Nev.

Ohio

Del.

Utah

Ind.

Ill.

Md.

Colo.

W.Va.

Va.

Calif.

Kan.

Mo.

Ky.

N.C.

Tenn.

Okla.

Ariz.

Ark.

S.C.

N.M.

Ga.

Ala.

Miss.

Tex.

La.

Fla.

Alaska

Hawaii

SOURCE: REUTERS

Undoing Roe won’t immediately make abortion illegal nationwide; it will leave each state to decide its own path. Some Democrat-governed states, including Colorado, Maryland and Vermont, have strengthened protections for providers and those seeking their services. But Republican states have done the opposite: According to the Guttmacher Institute, a reproductive rights advocacy group, 13 states already have “trigger laws” designed to take effect as soon as Roe is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.

One place where we can already see the possible effects of such laws is Texas, whose Heartbeat Act has already made most abortions illegal since September of 2021. Services that financially support Texans seeking out-of-state abortions told The Globe and Mail that Black, Indigenous and other racialized people make up most of those seeking their services, and those groups could be disproportionately hurt by new restrictions.

The right-wing long game on Roe v. Wade

Norma McCorvey, left, alias Jane Roe, stands with her attorney, Gloria Allred, outside the Supreme Court in 1989.GREG GIBSON/AFP via Getty Images

What is Roe v. Wade about?

The 1973 case centred on a pregnant Texan woman, Norma McCorvey, known in the court proceedings as Jane Roe. Texas law at the time forbade abortion except if the mother’s life was in danger. Her lawyers argued that a woman’s right to choose is a form of privacy protected by the Constitution’s 14th amendment, which has to do with due process, and that the Texas law was so broad that it infringed on those rights. Seven of nine judges, including five nominated by Republicans, ruled in her favour.

Originalism, Trump and the pushback to abortion

Over the decades, Roe’s opponents would embrace a school of legal thought called originalism, which argues that laws should be narrowly interpreted based on what the people who wrote them believed at the time. One originalist argument – which Judge Alito’s opinion draws on – is that, since the U.S. Constitution doesn’t mention abortion rights directly, courts should not infer that they exist. The opposite school – sometimes known in the United States as living constitutionalism, and in Commonwealth realms such as Canada as the “living tree” doctrine – posits that, as societies evolve, the interpretation of laws should be broad enough to account for those changes.

Through groups such as the conservative Federalist Society, originalists, including anti-abortionists, have spent more than 30 years trying to influence judicial appointments so that their school prevails at the highest levels of the U.S. court system. They found a willing ally in president Donald Trump, who appointed three of the judges now opposing Roe – Mr. Gorsuch, Mr. Kavanaugh and Ms. Barrett – and said overturning Roe was a possible outcome of this. Mr. Trump also blocked federal funding for groups such as Planned Parenthood, which the Biden administration later tried to undo.

Scottlynn Ballard attends an abortion-rights rally on May 14 at Kiener Plaza in downtown St. Louis. "Now is the time to rally and to continue the fight over body autonomy," said Ms. Ballard.Laurie Skrivan/St. Louis Post-Dispatch via AP

What can Joe Biden and Congress do if Roe v. Wade is overturned?

President Joe Biden called the draft decision a “fundamental shift in American jurisprudence” that, if made official, would endanger not just abortion rights but many other American freedoms. He’s said he would take steps to enshrine Roe’s protections in legislation, but there are barriers to doing that in the current Congress – and with midterm elections coming up on Nov. 8, it’s not clear whether the next Congress would have an easier or harder time passing such a law. Here are two main arenas where the Democrats can continue the fight.

  • Congressional: The House of Representatives, which the Democrats currently control, voted last year to pass the Women’s Health Protection Act, which would make Roe’s principles part of federal law. It got stalled in the Senate, where the two parties are evenly matched. Democrats tried again the week after the Supreme Court leak; again, Senate Republicans said no. Such stalemates are likely to continue without changes to a Senate procedure called the filibuster, but neither Mr. Biden nor Democratic leaders in the Senate have said they would pursue that. They have said it’s important for pro-choice candidates to be elected in the midterms so the balance in Congress shifts.
  • State: Devolving responsibility for abortion law to the states will dramatically heat up the races for state governorships and legislatures this fall. From now into the summer, many of these races are in the primary stage, in which state parties decide who their candidates will be.

How do abortion rights work in Canada?

Martha Paynter, a registered nurse in Nova Scotia, spoke with The Decibel about how Canadian abortion policy works and what barriers still remain.

Abortion is legal across Canada, at any stage of pregnancy and for any reason. That’s the result of 1988′s R. v Morgentaler ruling, in which Canada’s Supreme Court struck down a law that forbade abortions except in cases where the mother’s life was threatened. Because Canada has only one Criminal Code in federal jurisdiction – unlike the United States, which has 50, one for each state – there can never be a situation where some provinces deem abortion illegal but not others.

Access to abortion is another matter. While abortion is covered under the Canada Health Act, that only means provinces can’t make patients pay for the procedure; it doesn’t obligate provinces to provide it. From 1982 to 2017, Prince Edward Island didn’t offer abortions locally, and it took a Charter of Rights and Freedoms challenge to change the provincial government’s mind on the issue.

Abortion clinic accessibility

across Canada (as of July, 2019)

Abortion clinics are mainly located in large urban centres, meaning women who live outside those areas must travel long distances and pay out-of-pocket expenses to access the service. This map illustrates driving times to abortion clinics from cities across Canada.

LEGEND

Population centres*

by driving distance to

an abortion clinic

Areas within

driving range to

an abortion clinic

2-hour drive

Longer than 2-hours

6-hour drive

Longer than 6-hours

*With 30,000 people or more

WESTERN CANADA

Yukon

NWT

Nunavut

B.C.

Prince

George

Grande

Prairie

Alta.

Fort McMurray

Campbell

River

Sask.

Lloydminster

Man.

Courtenay

Lethbridge

Medicine Hat

EASTERN CANADA

Nunavut

N.L.

Que.

Ont.

PEI

Thunder

Bay

N.S.

N.B.

Kingston

Sault Ste.

Marie

North Bay

Sudbury

Leamington

Windsor

Note: Travel estimates use historic traffic data provided by HERE Technologies. Actual travel times may vary.

MURAT YÜKSELIR / THE GLOBE AND MAIL, SOURCE:

HERE TECHNOLOGIES; STATISTICS CANADA

Abortion clinic accessibility

across Canada (as of July, 2019)

Abortion clinics are mainly located in large urban centres, meaning women who live outside those areas must travel long distances and pay out-of-pocket expenses to access the service. This map illustrates driving times to abortion clinics from cities across Canada.

LEGEND

Population centres*

by driving distance to

an abortion clinic

Areas within

driving range to

an abortion clinic

2-hour drive

Longer than 2-hours

6-hour drive

Longer than 6-hours

*With 30,000 people or more

WESTERN CANADA

Yukon

NWT

Nunavut

B.C.

Prince

George

Grande

Prairie

Alta.

Fort McMurray

Campbell

River

Sask.

Lloydminster

Man.

Ont.

Courtenay

Lethbridge

Medicine Hat

EASTERN CANADA

Nunavut

N.L.

Que.

Ont.

PEI

Thunder

Bay

N.S.

N.B.

Kingston

Sault Ste.

Marie

North Bay

Sudbury

Leamington

Windsor

Note: Travel estimates use historic traffic data provided by HERE Technologies. Actual travel times may vary.

MURAT YÜKSELIR / THE GLOBE AND MAIL, SOURCE:

HERE TECHNOLOGIES; STATISTICS CANADA

Abortion clinic accessibility across Canada (as of July, 2019)

LEGEND

Abortion clinics are mainly located in large urban centres, meaning women who live outside those areas must travel long distances and pay out-of-pocket expenses to access the service. This map illustrates driving times to abortion clinics from cities across Canada

Areas within driving range

to an abortion clinic

2-hour drive

6-hour drive

Population centres* by driving

distance to an abortion clinic

Longer than 2-hours

Longer than 6-hours

Yukon

*With 30,000 people or more

NWT

Nunavut

B.C.

Grande

Prairie

Prince

George

Alta.

Fort McMurray

Campbell

River

Sask.

N.L.

Lloydminster

Man.

Que.

Ont.

Courtenay

PEI

Lethbridge

N.S.

Medicine Hat

Thunder Bay

N.B.

Sault Ste. Marie

Kingston

Sudbury

North Bay

Leamington

Windsor

Note: Travel estimates use historic traffic data provided by HERE Technologies. Actual travel times may vary.

MURAT YÜKSELIR / THE GLOBE AND MAIL SOURCE: HERE TECHNOLOGIES; STATISTICS CANADA

Where in the world is abortion legal or illegal?

Pro-choice protesters chant at a group of religious proselytizers in Mexico City in 2019.Rebecca Blackwell/The Associated Press

Abortion is practiced in every country, whether its government bans the procedure or not: The difference is whether the abortions are done safely and by accredited professionals, or secretly and unsafely.

Worldwide, there are about 73 million abortions every year, the World Health Organization estimates, of which 45 per cent can be considered unsafe. Most developed countries allow abortion without restriction, but developing countries in Latin America, Africa and Asia generally do not; as a result, the developing world accounts for 97 per cent of unsafe abortions, the WHO says. Without Roe, the situation in the United States would more closely resemble Mexico’s, where most of the 32 states have anti-abortion statutes (despite a recent decision by its top court saying it was unconstitutional to criminally prosecute people for getting abortions).

More reading

From our U.S. correspondents

As thousands across U.S. march to defend abortion rights, activists call for a ‘summer of rage’

If Roe v. Wade is overturned, U.S. jurisprudence may shift to the right for decades to come

Texas’s abortion law gives preview of how bans will affect racialized communities

Opinion

Elizabeth Renzetti: The looming reversal of Roe v. Wade is unjust – but it should be no surprise

Doug Saunders: Even more disturbing than Washington’s looming abortion-rights reversal is Beijing’s

Rosemary Westwood: The abortion debate will cleave the U.S. in two

Abortion rights in Canada

Jessica Leeder: I wanted an abortion in Nova Scotia, but all around, barriers still remained

John Ibbitson: Canada isn’t vulnerable to the same forces that could imperil abortion access. Here’s why

André Picard: Canada’s history with the abortion pill is shameful


Compiled by Globe staff

With reports from Reuters and The Associated Press


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