Two retired judges of Canada’s Supreme Court criticized the U.S. Supreme Court decision on Friday to end the nationwide right to an abortion, saying it freezes rights in much older times and shows why that court has lost its influence on this country’s judges.
The central idea in the ruling to overturn the precedent set in Roe v. Wade in 1973 was that, in the view of the majority, the right to an abortion did not exist in the United States until late in the 20th century. Rights that are not explicitly protected by the U.S. Constitution’s due-process clause must be grounded in the country’s history to merit protection, it said.
“I think this is a perfect decision for the 18th century,” Rosalie Abella, who is now the Samuel and Judith Pisar Visiting Professor at Harvard Law School, said in an interview. Ms. Abella retired last summer after 17 years on the Supreme Court of Canada.
Louis LeBel, who served on the Supreme Court of Canada from 2000 to 2014, called the majority’s approach to rights and history “respectfully, plainly wrong.”
“What we call ‘new rights’ developed through legal interpretation,” he said in an interview. “Those rights that were recognized in the past were new at some point in time. They came into being because courts acknowledged them, upheld them, recognized them.”
In dissent, three of the U.S. judges took an approach similar to that found in Canadian rulings: That a right to autonomous decision-making in the most personal decisions of life has grown over time, resulting in protection of the rights to contraception, gay sex and gay marriage. (In Canada, the right to medical assistance in dying for those suffering irremediably is grounded in personal autonomy.)
Canada’s constitutional bill of rights – the Charter of Rights and Freedoms – took effect only in 1982, so it lacks the historical roots of the U.S. Constitution, which dates from the 1780s (the 14th Amendment, which contains the due-process clause, is from 1868). But Canada’s Supreme Court has established that Charter rights are a “living tree,” evolving with the times, and the intent of the Charter’s framers is just one interpretive tool; others include looking at how the rights are treated in international law and other countries’ top courts.
In the early years of the Charter, Canadian judges looked to the U.S. Supreme Court, especially to precedents set under the liberal leadership of chief justice Earl Warren, Mr. LeBel said. But that is not the case any more.
“When I was still a judge at the court, in our exchanges with other courts, I and other of my colleagues found that we were actually closer to European courts, like the European Court of Human Rights or the German Constitutional Court, than to the current U.S. Supreme Court,” he said.
Ms. Abella likened the ruling to two long-ago decisions often seen as the worst in U.S. Supreme Court history: Dred Scott v. Sandford, in 1857, which said Americans of African descent could never become citizens; and Plessy v. Ferguson in 1896, which upheld “separate-but-equal” racial segregation laws.
She said taking away long-settled rights means that even Brown v. Board of Education, the 1954 decision that barred racial segregation in public schools, could be reversed.
“That to me is as inconceivable as what they did today. And yet they did it. It’s a frightening precedent, and delegitimizes the integrity of a court.”
The majority said the decision on whether a woman should be allowed to seek an abortion, or prohibited from doing so, belongs with the people, as represented by state governments. Ms. Abella found that deeply at odds with how constitutional rights are applied in Canada. “The notion that a constitution applies, interstitially, in some states and not others, is a bizarre concept to a Canadian,” she said.
Constitutions, because they are written in broad language, leave wide scope for reversals of precedent, Mr. LeBel said.
“It’s always a possibility within a legal system resting in part on judge-made law,” he said.
The Supreme Court of Canada has overturned many precedents in recent years – on assisted dying, prostitution and a constitutional right to strike, and much more – but always in the direction of expanding rights.
Earlier this week, the U.S. Supreme Court expanded religious rights to public funding of schools, and gun rights in striking down a New York law that put strict controls on carrying a concealed gun in public.
“They seem to be on a tear to expand religious and gun rights, in the name of freedom,” Ms. Abella said. “They are not, however, prepared to extend that freedom to women. Making these kinds of selective jurisprudential preferences obviously treats the Constitution like a toy. A constitution is not a toy.”
Canada has no criminal law on abortion. The Supreme Court struck down such a law in 1988 without declaring a right to an abortion. Another abortion law died on a tie vote in the Senate.
Mr. LeBel said he doubted the U.S. ruling would influence Canada. “The social and legal consensus [on abortion] is probably too strong.” He added: “But you can never know.”
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