A History of Post-Roe America and Canada: From Intertwined Abortion Battles to Dobbs

Northwestern Journal of Human Rights Northwestern Journal of Human Rights

5-22-2025

Article 2

A History of Post-Roe America and Canada: From Intertwined A History of Post-Roe America and Canada: From Intertwined

Abortion Battles to Dobbs Abortion Battles to Dobbs

Mugambi Jouet [email protected]

A HISTORY OF POST-ROE AMERICA AND CANADA: FROM INTERTWINED ABORTION BATTLES TO DOBBS

Mugambi Jouet*

ABSTRACT—The changing landscape on abortion following Dobbs has not only sparked a vigorous debate in the United States, but also abroad. Its recriminalization in America led to an outcry in peer Western democracies, whose leaders widely condemned the U.S. Supreme Court’s decision. Yet the social and historical reasons for this international divide are poorly understood.

This Article sheds light on the question through an in-depth comparison of America and Canada from Roe to Dobbs, as the neighboring nations’ abortion histories have been intertwined in intriguing and overlooked ways. When the U.S. Supreme Court decided Roe v. Wade in 1973, it heartened Canadian reformers who repeatedly cited Roe as a model to follow. The Supreme Court of Canada would not decriminalize abortion until 1988 in its landmark Morgentaler decision—fifteen years after Roe. This history, documented with original English- and French-language sources, reveals as much about America as about Canada.

If both countries had seemingly converged in liberalizing abortion once their high courts reached these seminal decisions, their paths would markedly diverge in subsequent decades. In America, the pro-choice movement increasingly was on the retreat after Roe as anti-abortion forces gained ground. In Canada, by contrast, the anti-abortion movement gradually collapsed following Morgentaler, as in much of the modern Western world. Still, in each country jurisdictions opposed to abortion tried to regulate it out of existence. It was not before 2016 that Prince Edward

Island—the last Canadian province to hold out—joined the rest of the country in allowing abortion. Only a few years later, the U.S. anti-abortion movement succeeded in overturning Roe, leading to the recriminalization of abortion in over a dozen American states in stark contrast to the historical evolution of reproductive rights.

Americans seeking to reinvigorate reproductive rights point to Canada as a model to follow in the post-Dobbs era. Canada now protects abortion far better than the neighbor from which it once sought inspiration. This extraordinary historical reversal and role reversal deserves closer attention, as it offers insight into numerous dimensions of the abortion debate.

TABLE OF CONTENTS INTRODUCTION. ........................................................................................ 190 I. THE INTERTWINED HISTORY OF ABORTION IN AMERICA AND CANADA .................................................................................................... 197 A. Into Modernity ............................................................................... 197 B. Similar Arguments and Different Outcomes .................................. 201 C. Roe’s Intriguing Influence in Canada ........................................... 206 D. From a Man to a Movement for Women’s Rights ......................... 210 E. The United States’ Place in Canadian Abortion History ............... 215

II. HOW THE CANADIAN PRO-CHOICE MOVEMENT WON BEFORE ROE FELL ..................................................................................... 229 A. From Decriminalization to Deinstitutionalization ........................ 231 B. Regional Divide and Anti-Abortion Regulation ............................ 238 C. The Last Stand of Canada’s Anti-Abortion Movement? ................ 242 III. FROM DOBBS TO AMERICAN EXCEPTIONALISM.................................. 248 A. The Body as a Battleground .......................................................... 249 B. The Recriminalization of Abortion in a Polarized America .......... 257 CONCLUSION............................................................................................. 266

“I’m here in solidarity, I believe every person should have the right to choose what they do with their body,” a protester declared after the end of Roe v. Wade.1 “It’s vulnerable women who are going to be the ones to lose access” and “who are being forced to carry to term pregnancies that are unwanted,” others added.2 Here are the voices of Canadian demonstrators reacting to the lost constitutional right to abortion in the United States.

These quotations reflect the reaction to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in most of the Western world.3 This Article explores why abortion is being recriminalized in America at a time when it is widely accepted or tolerated in peer Western democracies.4 While some U.S. scholars have insightfully described how European countries overcame divisions and achieved relative consensus on abortion,5 Canada’s path merits attention because it

emulated the evolution of American society until a growing divergence led to the recriminalization of abortion in the United States. Offering a comparative history from Roe to Dobbs, the Article’s thesis is that the neighboring nations’ paths have been intertwined in ways that shed light on the evolution of abortion as a legal, political, and social question.

Canada once lagged far behind America in decriminalizing abortion. During this time Canadian women flocked to the United States to terminate their pregnancies, traveling from both anglophone provinces and francophone Quebec.6 When the U.S. Supreme Court decided Roe in 1973, it immediately garnered the attention of Canadian reformers who pointed to Roe as a model to follow.7 It was not until 1988 that the Supreme Court of Canada delivered its own landmark ruling decriminalizing abortion in Morgentaler.8 The neighboring nations then appeared to be on the same path, with America ahead in recognizing abortion rights. In subsequent decades they would markedly diverge. Canada converged with fellow Western democracies, where both conservatives and liberals have largely come to favor abortion rights.9 America instead remained mired in an unusual battle over abortion. Overall, only eleven countries worldwide have drastically reversed reproductive rights in the last three decades.10

The most revealing reaction to Dobbs in Canada was not street protests, but the convergence of political opponents in accepting abortion. Prime Minister Justin Trudeau of the Liberal Party proclaimed that “no government, politician or man should tell a woman what she can and cannot do with her body.”11 His government also signaled that American women would be welcome to have abortions in Canada.12 Meanwhile, Candice Bergen, the leader of Canada’s opposition Conservative Party, reaffirmed that it now tolerates abortion.13 Bergen underlined that Prime

Minister Stephen Harper, a Conservative who governed Canada from 2006 to 2015, did not reopen the debate over abortion after it was decriminalized in 1988.14 Bergen actually blamed Trudeau and left-wing activists for using American events to try to revive a debate that had run its course in Canada: “Canadians deserve better than the Liberals importing issues from the U.S. in an attempt to wedge and divide Canadians.”15 A leaked memo from the Conservative Party leadership ordered its members not to comment on the U.S. Supreme Court decision eviscerating abortion rights.16

the U.S. Supreme Court’s

Mirroring the reaction in Canada, Dobbs was met with dismay in the rest of the Western world, where foreign leaders expressed grave concerns about ruling.17 These extraordinary circumstances prompted Justice Samuel Alito to publicly rebuke the U.S. allies who had criticized the decision he authored.18 Yet this Article captures how the United States was not always an outlier on abortion and actually once far ahead of Canada in protecting the right to end a pregnancy. In doing so, it nuances theories of “American exceptionalism” referring to America as an “exception” in the modern Western world on abortion and many other issues.19 While a separate publication of mine examines American exceptionalism on abortion in depth,20 this article offers another lens. The distinctive evolution of the U.S. abortion debate cannot be understood if we solely study the present or end result— divergence today post-Dobbs—without a closer history.

Even as this Article discusses the comparative history of reproductive rights in the modern Western world, it only offers a detailed account of events in America and Canada. It is not possible to explore in these pages all the particularities and nuances regarding abortion law and policy in each Western democracy. In Germany, for instance, abortion technically remains criminalized but is liberally allowed in the first trimester of pregnancy.21 Each nation has its own history but the bottom line is broad convergence toward the liberalization of abortion throughout the modern Western world, from Europe to Canada, Australia, and New Zealand.22 In addition to red states in a polarized America,23 strict bans on abortion are only found in Andorra, Liechtenstein, Malta, Monaco, Poland, and the Faroe Islands in the West today.24 Beyond the West, the salient trend globally has also been toward greater reproductive rights, not recriminalization.25

Comparative research can illuminate features of American society that a purely domestic analysis may overlook. A powerful anti-abortion movement once also existed in neighboring Canada. For generations, it had influential advocates in legislatures, courtrooms, and the public square. We will see that they marshaled arguments similar to those found in the United States. In the end, anti-abortion forces sharply declined in Canada, as in the rest of the modern Western world, where America has become the main outlier.

What is more, the history of abortion in the neighboring countries is intimately connected in ways that are little known. As the United States preceded Canada in protecting the right to abortion at a national level, Canadian reformers emphatically cited Roe as a model for social change. Initially documented by a few Canadian authors decades ago, especially the

essayist Anne Collins26 and political scientist F.L. Morton,27 the past reliance of Canadian reformers on Roe deserves a fuller history given recent developments. Indeed, after the recriminalization of abortion in over a dozen American states, Canada now defends reproductive rights far better than inspiration. These circumstances mark a spectacular historical reversal and role reversal.

the neighbor from which

it once sought

However, a few Canadian provinces resisted granting access to abortion after its decriminalization in 1988, thereby offering an original comparison to how multiple American states reacted to Roe by instituting myriad anti-abortion regulations. In the United States, these restrictions were incremental and, over decades, managed to effectively preclude abortion access in many jurisdictions.28 The U.S. anti-abortion movement simultaneously sought to bring a test case to have the Supreme Court overrule Roe.29 Donald Trump’s appointment of three Justices finally enabled the movement’s victory in Dobbs.30 What is less known is how a similar movement failed in Canada. Prince Edward Island, one of Canada’s most conservative provinces, successfully barred any access to abortion until 2016.31 As the last holdout province opened abortion access, the prolife movement dramatically lost in Canada shortly before its resounding victory in Dobbs opened a new chapter of American history. These overlooked historical events offer a fascinating window into the distinctive evolution of American society.

Modern Canada is far less divided on these matters and actually epitomizes the Western world’s paradigm shift on abortion since the middle of the twentieth century. One Canadian would come to personify this transformation perhaps more than any other historical actor, the abortion doctor Henry Morgentaler. A Holocaust survivor driven by humanistic and secular convictions, he immigrated to Canada in 1950 and the nation’s pro-choice eventually became

leading figure

the

in

movement.32 In 1973, just a few months before Roe was decided, Dr. Morgentaler mounted an unprecedented civil disobedience campaign.33 He widely announced that he had performed thousands of illegal abortions and even proceeded to conduct one on television for a public affairs program.34 His goal was to be prosecuted and present a test case to have the Supreme Court of Canada strike the law criminalizing abortion.35 As we will see, Dr. Morgentaler would heavily rely on Roe in his fifteen-year campaign, which culminated in the historic 1988 judicial decision that decriminalized abortion.36 Embodying a remarkable paradigm shift, Dr. Morgentaler would go from being imprisoned for performing abortions to receiving the Order of Canada in 2008, the country’s highest civilian honor.37

The paradigm shift would resonate far wider. Elective abortion went from being a crime to a medical procedure covered by universal health care in Canada and most other Western democracies during the second half of the twentieth century.38 By contrast, in the aftermath of Roe, the U.S. antiabortion movement enjoyed extraordinary success in banning public funding for abortion,39 reflecting the distinct societal landscape that made the recriminalization of abortion possible in much of the country following Dobbs in 2022.

Understanding this transnational history requires one to examine in detail the different countries brought into comparison. Because scholarship on American exceptionalism tends to gravitate toward the United States’ distinctive features, it risks misunderstanding or oversimplifying the ways in which America differs by looking only at one side of the equation. The other side of the equation reveals that the advent of reproductive rights in many countries was hardly a foregone conclusion. The outcry against Dobbs in much of the modern Western world risks obscuring how the

liberalization of abortion in Canada and other societies was the fruit of bitter struggles.40

In sum, this Article offers a timely comparative history but does not aim to retell the history of abortion as a whole. After all, numerous scholars have provided instructive accounts of pre-modern abortion practices, movements for or against abortion rights, and pivotal litigation.41 Nor does the Article delve into the merits of Roe or Dobbs.42 It instead explores the interrelationship between the history of abortion in America and Canada, from francophone Quebec to anglophone Ontario and smaller provinces. Its methodology is multidisciplinary and builds upon English- and Frenchlanguage sources.43 These original sources offer insight into how each country evolved from Roe to Dobbs.

Our journey into the past will proceed as follows. The Article’s first section provides historical context before documenting how Canadian reformers sought inspiration from the victories of U.S. women’s rights advocates in Roe, which significantly shaped their litigation strategy. The second section describes how, after both countries had seemingly allowed elective abortion, they each experienced the rise of movements seeking to restrict access. The anti-abortion movement ultimately proved far more popular and successful in modern America than Canada. This divergence is exemplified by the distinct outcomes of Dobbs and litigation that led Prince Edward Island to finally authorize access to abortion in 2016 after much resistance. The third and final section focuses on the circumstances that enabled the recriminalization of abortion in a bitterly polarized America—a striking deviation from the consolidation of reproductive rights in Canada and other Western democracies.

Over the past five decades the debate over abortion in the United States and Canada converged in countless ways that can be easily overlooked given the common assumption that America is its own world. In fact, many of the issues and arguments shaping the U.S. abortion debate were also present in Canada. This section will describe how Canadian reformers sought to emulate the evolution of American law after Roe and how they failed to do so for fifteen years. If the neighboring countries seemed to have taken the same path by the late 1980s, they would ultimately diverge as the U.S. abortion debate became increasingly peculiar, culminating in Dobbs.

A. Into Modernity

While the history of abortion stretches back to Antiquity, our story begins with the emergence of similar trends and debates in Britain, Canada, and the United States in the nineteenth century. Under English common law, abortion was not criminalized until “quickening,” namely the moment when the woman first sensed the fetus in the womb.44 Quickening typically occurred around the midpoint of pregnancy.45 In 1803, the United Kingdom made abortion illegal both before and after quickening, a prohibition later consolidated under the Offences Against the Person Act of 1861.46 Canada then tracked British law and adopted similar legislation in its first Criminal

Code in 1892.47 American states also began adopting bans on abortion in the second half of the nineteenth century, whereas until then abortion before quickening was legal and commonplace.48 Scholars have debated whether this drive to ban abortion was fundamentally due to patriarchal attitudes, moral objections, natalist policies, the unsafe nature of abortion as a medical procedure before the advent of modern science, if not other factors.49 A related question is the extent to which such bans were actually enforced or enforceable. Over time abortion could be relatively tolerated and, in any event, illegal abortions were hard to detect.50 Yet the long history of abortion in pre-modern times is beyond the scope of this Article focusing on the aftermath of Roe v. Wade in America and Canada.

Canada adopted its last criminal law on abortion in 1969.51 It outlasted similar American statutes, as the Supreme Court of Canada did not strike it down before 1988.52 The 1969 legislation was a compromise adopted under Prime Minister Pierre Trudeau of the Liberal Party, the father of Justin Trudeau, who would hold the same position several decades later. The reform sought to resolve uncertainties that physicians faced in deciding when abortion was permitted to protect a mother’s life or health, thereby leading to debate over whether the goal was protecting physicians or women’s reproductive rights.53 Abortion opponents found the law overly permissive since they believed life began at conception.54 Abortion rights activists instead felt the law did not go far enough and voiced their

concerns in a meeting with Trudeau, who told them “The public is not ready for this” and “It is your job to change public morality.”55

The context revealed changing social mores in the late sixties. Abortion fell in a historic reform package that included the partial decriminalization of homosexuality and, among other measures, an end to the criminal ban on advertising and selling birth control (that many Canadian women already used by then).56 A former Minister of Justice, Trudeau questioned government intrusions into people’s private lives.57 He openly challenged “standards of morality which have nothing to do with law and order but which have to do with prejudice and religious superstition.”58 To Trudeau, the 1969 omnibus bill was “the most extensive revision of the Criminal Code since the 1950s,” it had “knocked down a lot of totems and overridden a lot of taboos,” by “bringing the laws of the land up to contemporary society.”59 His comments on gay rights may have garnered the most attention, as he pledged that “there’s no place for the state in the bedrooms of the nation” and “[w]hat’s done in private between adults doesn’t concern the Criminal Code.”60 As Prime Minister he nonetheless felt constrained by divides in public opinion, effectively limiting social change.61

The 1969 legislation provided that abortion would remain a crime in Canada—except if conducted at a hospital with the approval of a “therapeutic abortion committee.”62 This system was soon denounced as arbitrary.63 Hospitals were not obligated to have such committees and those

in existence enjoyed considerable discretion to deny or approve abortions.64 Committees operating in more conservative regions were disinclined to authorize abortions and could ban them in practice.65 Other committees rubber-stamped all requests and effectively allowed elective abortion.66 As we shall see, the failure of this compromise legislation in Canada suggests that resolute movements for or against abortion rights in any country cannot both be satisfied.67

Therapeutic abortion committees likewise existed in America in various forms.68 By 1950, many non-Catholic hospitals had set up such committees, partly to legitimize physicians’ decisions and protect them from prosecutors.69 Whereas therapeutic abortion committees were not discussed in Roe v. Wade, they were at the heart of its companion case Doe v. Bolton.70 The latter concerned a Georgia statute that was similar to the Canadian abortion statute in making abortion a crime unless it was conducted in a hospital upon approval by an abortion committee.71 In a 7-2 ruling, the U.S. Supreme Court found this statute unconstitutional because the hospital requirement infringed on the right to elective abortion in the first trimester under Roe; and the abortion committee system unduly restricted a patient’s rights.72 Doe reasoned that these committees could veto abortions or unfairly delay pregnant women’s access to the medical procedure. This rationale was analogous to the one that the Supreme Court of Canada adopted in its historic decision decriminalizing abortion, which struck down the statute on therapeutic abortion committees.73 But this decision did not come before 1988, fifteen years after Roe and Doe.

The momentum for reform had been stronger in America after Canada’s 1969 abortion law had stifled the pro-choice movement’s hopes. In the run-up to Roe, calls to decriminalize abortion and expand reproductive rights in America increasingly came from the feminist

movement and liberal organizations, such as the American Civil Liberties Union (ACLU).74 In 1962, the American Law Institute (ALI), a prominent association of legal experts, proposed model legislation to expand abortion access.75 In 1972, the American Bar Association (ABA) emphatically supported elective abortion.76 Although Richard Nixon had condemned abortion, a commission he appointed to study population problems recommended allowing elective abortion.77 By the late 1960s, fifteen states had adopted versions of the ALI legislation.78 Abortion to save the life of the mother or avoid birth defects garnered significant public support, but elective abortion—”abortion on demand”—proved a major area of disagreement.79 Growing social debate over reproductive rights80 was buoyed by landmark constitutional decisions holding that bans on contraception violated individual privacy and equality.81 In a nutshell, this was the sociohistorical landscape when the U.S. Supreme Court decided Roe, a breakthrough that would lift the spirits of struggling Canadian reformers.

B. Similar Arguments and Different Outcomes

Before our narrative unfolds, a lay of the land may be helpful since the two nations at the heart of our comparative history are odd neighbors. Even though Canada is arguably the nation most like the United States, the American public tends to be unfamiliar with Canadian society and government.82 The opposite is not true, as Canadians are usually familiar with the United States and closely follow its news cycle.83 But they often do so with the perception that their superpower neighbor is a peculiar country next to Canada and much of the world.84 These circumstances may

lead some readers to assume that the two countries’ abortion debates have shared little in common. In reality, their histories with abortion mostly converged until recent decades.

The relative stigma surrounding abortion around the time Roe was decided in America also existed in Canada, as reflected in a 1977 report commissioned by the Canadian government:

It was not before the turn of the century that significant divergence materialized, as abortion gained acceptance in Canada but continued to stir major conflict in America.

Interestingly, the neighboring nations’ abortion debates had also greatly converged in terms of the rationales advocated for or against abortion. At the outset, calls to liberalize abortion had rested on similar or identical claims, especially the conviction that the movement is part of a wider feminist struggle;86 that elective abortion is an indispensable component of sound family planning, individual autonomy, personal privacy, and gender equality;87 that the rights of a pregnant woman outweigh any government interest in a fetus, which is not genuinely a human being but a potential one;88 and that banning abortion reflects religious, patriarchal, sexist, or otherwise misguided control of women’s bodies.89 By the same token, the anti-abortion movements in the neighboring countries often converged identical arguments, such as emphasizing that human beings exist from the time of conception;90 that abortion constitutes the murder of unborn children;91 that

toward similar or

abortion harms women both mentally and physically;92 and that abortion doctors and providers prey on pregnant women.93 As anti-abortion groups in both countries further evolved from having virtually all-male leaders to increasingly female ones, they converged in co-opting feminist rhetoric in response to accusations of sexism.94 The fact that the same claims were advocated in America and Canada offers insight into their ultimate divergence.

Each nation also had male Supreme Court justices—Harry Blackmun in the United States and Brian Dickson in Canada—who personally struggled over their critical role in seminal cases decriminalizing abortion.95 Both faced accusations of judicial activism. Heaping scorn on Blackmun’s majority opinion in Roe, President Ronald Reagan published an emblematic article claiming: “Make no mistake, abortion-on-demand is not a right granted by the Constitution.”96 In Canada, Justice William McIntyre, who dissented in the groundbreaking Morgentaler decision,97 privately protested to Chief Justice Dickson: “I feel that possibly you have overlooked the constitutional question which is not whether abortion is a good thing or a bad thing.”98

After each nation legalized abortion at the federal level, they both likewise faced efforts from states or provinces seeking to block or undermine access to abortion.99 The legal battles over abortion in each country reflected similar dynamics because they both have federal systems. In brief, Canada has a federal government and Parliament, which may be analogized to the U.S. federal government and Congress.100 Canadian provinces have parallel governments that are relatively comparable to American states, as each possess their own executive, legislative, and

judicial branches.101 Finally, both countries have supreme courts that can decide issues of national significance.102 Naturally, countless distinctions remain. For example, Canada has a parliamentary system headed by a Prime Minister in contrast to the U.S. presidential system.103 American government further has distinctive features that are scarcely found in Canada and peer Western democracies.104 For our purposes, however, the relative decentralization of government in both countries means that their abortion debates have played out in comparable spheres: i) at the national level with their federal governments; ii) at the regional levels with their state or provincial governments; and iii) before their supreme courts, which have ruled on the constitutionality of abortion laws adopted by the federal government and state or provincial governments.105

A few issues have remained relatively specific to each country, including certain questions of federalism. In Canada, criminal law is a matter of federal jurisdiction, meaning that provinces cannot criminalize abortion.106 Parliament arguably has broad authority to legalize or ban abortion nationwide, assuming this would not violate the Canadian Constitution.107 In the United States, the states and federal government instead share jurisdiction over criminal law. American states can therefore unilaterally and independently criminalize abortion—if it is not a right protected by the U.S. Constitution. That is the reason why Roe and its progeny were key in preempting state criminal bans. The criminalization of abortion in America has also centered on state bans because, unlike Canada’s Parliament, the U.S. Congress might not have the authority to legalize or criminalize abortion nationwide via legislative means, as its jurisdiction over criminal law is limited.108

The framing of abortion as a matter of criminal law ended in Canada back in 1988, when its Supreme Court struck down the last federal criminal

statute barring abortion109 and its Parliament did not pass a new criminal law on abortion afterwards.110 Certain provinces still tried to use other means to block access to abortion, especially public-health and funding regulations under their jurisdiction.111 While red states went further in trying to regulate abortion out of existence in America, the pro-life movement in each country converged to an extent in its attempts to impede abortion when it could not be criminalized.112

All of these similarities do not mean that social movements on abortion in America and Canada were indistinguishable. For instance, the reproductive justice movement appears to have played a greater role in the U.S. debate in recent decades.113 Reproductive justice groups have accused the mainstream pro-choice movement of ignoring systemic discrimination and inequity, arguing that the right to choose abortion can be especially meaningless for underprivileged women of color lacking the means to access abortion.114 Still, reproductive justice groups have also emerged in Canada.115

In the end, we will see that the main distinction between America and Canada is not what was argued but what happened. Although the pro-life movement once was powerful in Canada, arguments for abortion rights finally won relative bipartisan consensus nationwide. Conversely, the abortion rights movement struggled to make headway throughout the United States, especially in red states where a substantial segment of elected officials, activists, and rank-and-file citizens remained keen on criminalizing abortion.

But one aspect of what was argued deserves closer attention. After Roe was decided in 1973, numerous Canadian reformers pointed to the United States as a model to follow. After all, abortion would remain a

crime in Canada until 1988. Considering how Dobbs would lead abortion rights to dramatically regress in the United States in comparison to Canada, a closer look at these events reveals a profound historical reversal.

C. Roe’s Intriguing Influence in Canada

On January 21, 1973, Canada’s foremost abortion rights advocate received a phone call from Roy Lucas, a leading attorney in Roe v. Wade.116 Dr. Henry Morgentaler, who had become the face of the cause in Canada, felt both relieved and optimistic when hanging up.117 The U.S. Supreme Court had just recognized a constitutional right to abortion and offered a path for Canada to follow.118

This story introduces an authoritative account of abortion in modern Canada published in 1992 by F.L. Morton, a political scientist.119 An earlier account by Anne Collins similarly describes how Canadian activists on both sides of the debate found the American model more satisfying in relying upon litigation.120 Whereas Canada had failed to resolve the abortion issue with its 1969 legislative compromise, the U.S. Supreme Court had seemingly settled the matter.121 Collins’s eyewitness account of Dr. Morgentaler’s trial is particularly revealing because it was published in 1985, at an uncertain time before the Supreme Court of Canada decriminalized abortion in 1988.

Echoing this perspective, Mark MacGuigan, who served as Minister of Justice and Attorney General of Canada in the 1980s,122 began a book on abortion by stating that “American events, social currents and latest thinking have a huge influence on Canadians in this sphere.”123 The dénouement would be reflected in a seminal concurrence by Justice Bertha Wilson in the 1988 Supreme Court of Canada ruling: “[T]he respect for individual decision-making in matters of fundamental personal importance

reflected in the American jurisprudence also informs the Canadian Charter [of Rights and Freedoms].”124

The liberalization of abortion access following Roe had led thousands of Canadian women to travel to the United States to terminate their pregnancies.125 Meanwhile, Canada was in a state of ambivalence after adopting its 1969 criminal statute on abortion. On one hand, abortion was relatively common, as therapeutic abortion committees authorized an appreciable number of procedures and the criminal ban was otherwise not systematically enforced.126 Over half a million abortions occurred in Canada between 1969 and 1986.127 On the other hand, many committees essentially vetoed abortion requests and the threat of criminal prosecution could dissuade doctors from conducting the procedure.128 This state of ambivalence would persist until the Supreme Court of Canada struck down the criminal statute in 1988.

In the wake of Roe, American constitutional law reflected no such ambivalence. By recognizing a constitutional right to elective abortion, the U.S. Supreme Court enabled doctors to proceed without risk of criminal prosecution. While Roe would eventually be undermined by mounting protests and anti-abortion regulations,129 it initially offered a concrete model for the decriminalization of abortion in Canada.

Between 1900 and 1972, 1,155 people were criminally convicted for abortions in Canada out of 1,793 charged.130 Over 200 convictions occurred in the 1960s alone.131 A case study in York County, which comprised Toronto, indicated that the targets were “abortionists” as no woman was prosecuted for terminating her pregnancy,132 thereby matching the historical focus of U.S. prosecutions.133

Henry Morgentaler’s fate would demonstrate that criminalization remained a genuine social issue in Canada following the 1969 legislative compromise that continued to ban abortion except where approved by the controversial therapeutic committees.134 Dr. Morgentaler operated his own abortion clinic, which was illegal and outside of the restrictive, hospitalbased committee system that he deemed illegitimate.135 From the 1970s to the late 1980s, Dr. Morgentaler was regularly in the media spotlight as he was prosecuted multiple times.136 He spent months in prison.137

Dr. Morgentaler had done his best to be prosecuted in view of bringing a test case to have the criminal ban invalidated in court.138 This strategy evoked two prominent U.S. cases, Griswold v. Connecticut and Eisenstadt v. Baird, where reformers sought to have themselves prosecuted by openly flouting laws banning contraceptives.139 Dr. Morgentaler would go farther down this path than perhaps any litigant in history.

On March 15, 1973, Dr. Morgentaler publicly declared that he had performed over 5,000 illegal abortions when speaking at a rally at the University of Toronto.140 He repeated this the next day at a press conference.141 He then sent letters to public officials informing them of his activities, requesting that his abortion clinic be recognized as lawful, and offering to share his expertise to expand abortion access in Canada.142 Dr. Morgentaler subsequently arranged for a CTV crew to film him performing an illegal abortion for the W5 public affairs program.143 Fearing a government injunction against the broadcast, the producers moved its schedule ahead to May 13, 1973, which turned out to be Mother’s Day.144

Dr. Morgentaler was finally arrested in Montreal on August 15, 1973.145 It was not his first arrest, as he already faced criminal charges stemming from a 1970 raid on his abortion clinic that had been precipitated by the American FBI’s concern about what was unfolding in Canada.146 Dr. Morgentaler had American patients and the boyfriend of a seventeen-yearold from Minneapolis had contacted the U.S. authorities to denounce a Canadian abortion ring.147 The FBI cooperated with Canadian police to track him down.148 Dr. Morgentaler chose a prominent defense counsel, Claude-Armand Sheppard, who opted to delay the criminal proceedings with repeated motions.149 To his client’s dismay, Sheppard believed that Canadian public opinion was not ready for this cause.150 When Dr. Morgentaler subsequently went public with his extraordinary civil

disobedience campaign, it also was an act of disobedience against his lawyer’s advice.151

The decriminalization of abortion in the United States had heartened Dr. Morgentaler in his vision for social change. “Roe was like a firebell in the night” that made him more “optimistic about the prospect for similar change in Canada,” Morton writes.152 “It shook him out of the ennui induced by two and half years of using procedural delays to avoid going to trial in his own abortion case.”153

When Morgentaler spoke at the press conference admitting to performing 5,000 abortions, he drew the applause of fellow doctors in attendance.154 One stood up and exclaimed that he too should be prosecuted for having referred patients to illegal abortion practitioners.155 “With all the legal changes that happened in the United States, we had the wind in our sails,” Morgentaler recalled of that day.156

D. From a Man to a Movement for Women’s Rights

Compared to the United States, the history of abortion in Canada is much more connected to an emblematic figure. Henry Morgentaler gave his name to a series of high-profile criminal and constitutional cases. Morgentaler is not merely a name known to nearly all Canadian law students and lawyers nowadays. In his lifetime, Dr. Morgentaler also garnered considerable public attention and media coverage by performing innumerable abortions in open defiance of criminal law. While these would already be worthwhile reasons to analyze Dr. Morgentaler’s historic role, additional reasons make him an indispensable figure to learn about beyond Canada’s borders. Dr. Morgentaler was a remarkably eloquent spokesperson for the right to abortion. His relentless advocacy helps explain why he came to embody the issue so deeply in Canadian society, attracting the admiration or hatred of people on conflicting sides of the debate. A man prepared to live by his ideals at tremendous personal sacrifice, Dr. Morgentaler’s defiance led him to be sentenced to eighteen months in prison, devote much of his income to attorneys’ fees, and face a crippling audit for unpaid income taxes on illegal abortions.157

Dr. Morgentaler’s singular life personifies how the liberalization of abortion in Canada was not easy. Grasping this history is necessary to a fuller understanding of how the United States has evolved in comparison to Canada or other Western societies where clashes over abortion once could be intense.158 Without the benefit of this history, one may take for granted the greater tolerance of reproductive rights elsewhere in the West in comparison to modern America, as exemplified by the fierce criticism that Dobbs received from foreign allies.159

Henry Morgentaler’s extraordinary life offers a window into history. As a youth, he spent four years in a Polish Jewish ghetto before nearly a year in Auschwitz and Dachau.160 The Nazis murdered both of his parents, secular-minded socialists who influenced his worldview.161 The inhumanity of concentration camps reinforced his atheism—an imaginary God would not save humanity—but instilled in him a humanistic vision of justice.162 Soon after the war, he started studying medicine, initially in Germany and Belgium, before moving to Canada.163 His wife became pregnant when he was a medical student in Montreal. The destitute couple already had a child. They pursued an illegal abortion under harrowing conditions in 1951, raising his awareness of the issue.164 His subsequent role as the leader of a humanist association led him to gain prominence in the media as a spokesperson on various social issues. As Canada was debating abortion reform a decade later, he was invited to present in Parliament his call for the liberalization of abortion on behalf of the association.165 For months, he encountered the same scenario. Women heard of his advocacy and privately reached out, pleading: “Doctor, I am pregnant, I cannot carry this pregnancy to term, you must really help me.”166 Morgentaler would respond: “I cannot help you, it’s against the law.”167 Feeling like a

“coward” and “hypocrite,” he could not take it anymore.168 Advocating for the liberalization of abortion was not enough. “I therefore decided that as a doctor and humanist—or let’s say simply as a human being—it was my duty to help these women in distress.”169 A “humanitarian impulse” led him to begin performing abortions.170 Being a general practitioner and having hardly anyone to turn to given that abortion was a crime, Morgentaler mostly taught himself the medical procedure.171 Despite occasional tensions with Canadian feminists, some of whom felt that Dr. Morgentaler attracted excessive attention as the face of a movement for women’s rights,172 he proved an indefatigable advocate for abortion rights who did not hesitate to call its opponents “anti-feminist.”173

Excerpts from late-life French-language interviews illustrate why Morgentaler was a prominent bilingual advocate: “[A]bortion protects the family, because it enables the choice of the right moment, the one when children will be able to receive all the love they need . . . .”174 “A child should not be a punishment. . . . The fact that some people have sex without taking precautions . . . does not mean that an abortion should be refused. In these circumstances, forcing the woman to have a child constitutes a punishment for her.”175 He kept defending his convictions, undeterred by the months he spent in a Quebec prison, observing that it was nothing compared to the Nazi concentration camps of his youth.176 Detractors turned his past against him. Morgentaler was accused of replicating Nazi atrocities by exterminating fetuses,177 echoing accusations that abortion opponents also made in the United States and Europe.178 Elements of the

Canadian pro-life movement promoted anti-Semitic that Morgentaler only aborted Christian fetuses and not Jewish ones.179 In the end, however, this disinformation had limited traction in Canada.

theories

Morgentaler became an iconic figure. In the midst of his legal travails, he was recognized at Montreal’s jazz festival and attracted a crowd of people who wanted to speak to him, shake his hand or ask for an autograph.180 The embattled abortion doctor even played himself in a suspenseful docudrama featuring reenactments of his arrest, imprisonment, and one of his trials.181 He not only symbolized a paradigm shift on abortion but also the growing liberalization and secularization of Quebec since the 1960s—a phenomenon known as the Quiet Revolution.182 Upon arriving in 1950, Morgentaler initially could feel unwelcome in Montreal where a doctrinaire conception of Catholicism led a significant segment of the population to be wary of minorities, foreigners, and nonbelievers.183 Morgentaler fit in all of these categories, as he was an unabashed atheist who would openly attribute anti-abortion laws to religious prejudice and obscurantism.184 Yet the three Quebec juries who eventually acquitted him185 were predominantly made up of Catholics who engaged in jury nullification of an abortion law that Morgentaler had proudly defied.186

Quebec was changing and so was the Western world. Quebec’s Quiet Revolution was hardly unique in the sense that it converged with wider transformations. Religious traditionalism declined as modern Europe, Canada, Australia, and New Zealand evolved toward more liberal, secular attitudes that shaped the growing acceptance of abortion. While this

evolution also occurred in the United States, it faced stronger opposition from religious traditionalism at the heart of America’s “culture wars.”187

No single figure in American history has ultimately played such an influential role as an actor and symbol in the abortion debate as Henry Morgentaler did in Canada. The figure who might come closest to this status is Norma McCorvey, the plaintiff “Jane Roe” in Roe v. Wade. McCorvey embodied American society’s embattled ambivalence with abortion, as she went from being an abortion rights activist to later aligning herself with the anti-abortion movement and Religious Right.188 Yet McCorvey sometimes sought to avoid the spotlight189 and is barely mentioned in leading histories of abortion in the United States.190 To the contrary, close attention to Henry Morgentaler is unavoidable in any Canadian history on the matter. Beyond North America, one figure who comes closer to Dr. Morgentaler’s status as a symbol of the issue is Simone Veil, who led France’s decriminalization of abortion in 1975 as the health minister under President Valéry Giscard d’Estaing.191 Veil is another captivating historical figure for diverse reasons, including the fact that, like Morgentaler, she was a Jewish survivor of Holocaust death camps who subsequently devoted her career to a humanistic vision of justice.192 Next to Morgentaler, however, Veil remains less significant in the French context given that the liberalization of abortion in France was less vigorously fought than in Canada. Tellingly, the French reform did not have to wait for the election of the opposition Socialist Party in 1981, as it occurred under Giscard d’Estaing’s center-right government.

Henry Morgentaler’s influence does not mean that women have not played significant roles in the history of Canada’s abortion rights movement.193 Nor does it mean that he operated singlehandedly, as in the 1970s and 1980s various groups fought alongside Morgentaler to have abortion legalized, including by fundraising to support his advocacy and legal battles.194

What makes Henry Morgentaler a singular historical figure is that he conciliated the roles of litigant, public advocate, and abortion doctor. If he was unique, the same cannot be said of the claims he would marshal in his landmark test case before the Supreme Court of Canada. Many of his arguments to decriminalize abortion had already been made in Roe v. Wade and its progeny, which is precisely why his lawyer cited these cases.195 The American abortion debate had found its way into Canada’s highest court.

E. The United States’ Place in Canadian Abortion History

The United States played an influential role in the legal battle to decriminalize abortion in Canada. This history is largely unknown in America. While the Morgentaler abortion cases are well known to Canadian jurists, as they are taught in the nation’s law schools,196 the same

cannot be said of how American events and actors shaped Canadian law in this period. This little-known history deserves closer attention, as it tells us much about each country’s experience with abortion.

From the moment Roe was decided, Henry Morgentaler had envisioned its Canadian equivalent.197 While the most famous test case is the 1988 Morgentaler decision where the Supreme Court of Canada finally decriminalized abortion, Dr. Morgentaler was tried multiple times and long failed where American reformers had prevailed. The pivotal 1988 decision, discussed below,198 stemmed from charges filed against Morgentaler in 1983.199 Prior criminal charges were filed against him on August 15, 1973,200 a few months after Roe was handed down on January 22, 1973.201 This led to the first major test case before the Supreme Court of Canada. In 1976, all its Justices flatly rejected Dr. Morgentaler’s claim that Roe was a model to follow, demonstrating that the United States was well ahead of Canada in liberalizing abortion.202

This 1976 decision by the Supreme Court of Canada leaned toward the position that American conservatives and proponents of judicial restraint had urged, as Justice Brian Dickson’s seminal opinion distanced itself from Roe. Justice Harry Blackmun’s opinion in Roe had stressed a woman’s right to choose an abortion with her doctor—a choice that the state has no legitimate interest in preventing during the first trimester of pregnancy.203 Dickson’s dismissal of Blackmun’s reasoning can be read between the lines in the italicized quotation below. At the same time, Dickson sought to temper the anti-abortion movement’s expectations when affirming Dr. Morgentaler’s conviction for performing an illegal abortion:

In this early case, Dr. Morgentaler pointed to Roe, to no avail.205 His counsel argued that the Canadian Bill of Rights, a federal statute enacted in 1960, derived from the U.S. Constitution and that the Canadian Justices should therefore give effect to Roe v. Wade and its companion case Doe v. Bolton.206 Justice Dickson and the majority did not explicitly engage with this claim, but the dissenting Chief Justice Bora Laskin rebuked Dr. Morgentaler on this point. Laskin had dissented on the ground that a retrial was necessary207 but expressed reservations about the Roe strategy: “Since counsel for the appellant abjured any claim that stare decisis operated, his submission amounted to this, that decisions of the Supreme Court of the United States should carry weight in the consideration of the particular provisions of the Canadian Bill of Rights.”208 “To give decisions of the Supreme Court of the United States respectful consideration does not carry us into any such theory of the adopted statute as the appellant propounded,” he cautioned.209

The criminal conviction stemmed from an abortion

that Dr. Morgentaler had performed on a woman who “did not have a health problem” but did have “psychological problems as she was anxious and could not eat nor sleep.”210 Dr. Morgentaler argued that the patient was in danger because, had he not acted, she might have performed the abortion herself or resorted to an unqualified third-party.211 The woman was a destitute foreign student from Sierra Leone who said that, if she had not received an abortion from Dr. Morgentaler, she was considering borrowing money to get one in America.212 These facts suggest that defending access to abortion for the poor and racial minorities was already a preoccupation prior to the advent of the modern reproductive justice movement.213 Moreover, claims made in this crucial case may prove instructive in post-

Dobbs American states that ban abortion with an exception to protect the life or health of the mother.

In particular, Dr. Morgentaler had invoked the criminal defense of necessity—a rare and controversial defense resting on the notion that a defendant had no choice but to break the law because the circumstances compelled them to do so.214 This raised the issue of how broadly one should construe an abortion-ban exception to save the life of the mother. Dr. Morgentaler’s necessity defense reflected the broad view that an abortion is necessary to protect a woman’s personal, emotional, psychological, and economic wellbeing. However, a broad, catchall exception to protect the life of the mother may amount to allowing elective abortion per se. That is precisely what Dr. Morgentaler was pushing for. Unconvinced, Justice Dickson rejected this necessity defense, finding that it amounted to lawlessness in suggesting that people may disregard laws if they feel that it is the right thing to do.215

Yet a jury had initially acquitted Dr. Morgentaler. The Quebec Court of Appeal had reversed, substituted a guilty verdict, and imposed a prison term, which the Supreme Court of Canada upheld in a 6-3 decision comprising Justice Dickson’s seminal opinion.216 This apparently unprecedented outcome led to public debate over whether appellate judges can legitimately convict and imprison someone against a jury’s wishes.217 Even Dickson had originally planned to uphold the jury’s acquittal before making a complete turnaround after considering the implications of Dr. Morgentaler’s necessity defense.218 Parliament would subsequently reform the the Criminal Code of Canada with what became known as “Morgentaler Amendment;” namely, that a jury acquittal cannot be replaced with an appellate conviction in the case of an error of law.219 The remedy would be remanding the case for a new trial—an option that previously was possible but unsatisfactory to the judges who deemed the conviction warranted in this prominent test case.220 Henry Morgentaler would therefore leave his mark on Canadian criminal procedure, besides abortion law.

The Canadian Bill of Rights on which Morgentaler unsuccessfully relied (again, a 1960 statute), is not to be confused with the Canadian Charter of Rights and Freedoms—the key constitutional text enacted in 1982. The Charter would eventually offer Morgentaler a stronger foundation for many of his rights claims.221 A changing social landscape would likewise make Canadian Justices more receptive to his persistent test cases arguing the same ultimate point that abortion should not be a crime.

As of 1976, however, the Supreme Court of Canada was unanimously unreceptive to the decriminalization of abortion—lagging behind the U.S. Supreme Court, given that Roe came in 1973. As a result, American clinics reported performing abortions on 6,957 Canadian women in 1974, although Canadian officials estimated that the actual figure was nearly 10,000.222 Comparatively, approximately 50,000 abortions occurred that year in Canada with the approval of therapeutic abortion committees.223 Over one thousand illegal abortions additionally occurred each year.224 Hence, a substantial proportion of Canadian abortions occurred in America.

“Something must be done to curtail this exodus of Canadian women to US abortion clinics,” a medical expert decried, adding that such trips could be financially costly.225 A survey found that the overwhelming majority of Canadian women who had aborted in America would have preferred to do so back home.226 The revelation that Quebec’s public health insurance system reimbursed abortions performed in America stoked more controversy.227

Americans unable to abort also sought Henry Morgentaler across the border.228 His reputation as a skilled and considerate practitioner, albeit one operating illegally in Canada, led hundreds of New Yorkers to travel to Quebec to terminate their pregnancies with him, especially until New York liberalized its abortion law in 1970, three years before Roe.229

These transnational issues grew even more important after Roe. When Dr. Morgentaler faced another criminal trial in September 1976, the prosecutor asked him “why he had not suggested that the woman go to an

accredited hospital in the United States for a legal abortion . . . .”230 This appalled the legal scholar Bernard Dickens, who found that such a question “[d]oes considerable violence to the moral pretence of Canadian abortion law.”231 A few years earlier, a doctor whom Morgentaler had trained to perform abortions had been charged, too.232 When the woman who had terminated her pregnancy refused to identify him, she was arrested and handcuffed.233 She found her experience with the Canadian authorities so distressing that she later moved to Florida.234

Even before Roe, the social shifts occurring in America were being closely followed in Canada. In 1969, Alan Guttmacher—the prominent American gynecologist and head of Planned Parenthood—was the leading speaker at a conference on reproductive rights in Ottawa.235 Guttmacher indicated that he would welcome the liberalization of abortion law in both America and Canada.236 The next year, Le Devoir, a leading FrenchCanadian newspaper, conducted a lengthy interview with Guttmacher, who defended the groundbreaking liberalization of abortion law in New York in 1970.237 “[A]n act that strengthens family bonds and that enables all children who come into the world to have been wanted cannot be deemed immoral,” Guttmacher told Quebeckers.238 “Morals cannot be theological anymore, they must take into account the effects [of social policies].”239 The skeptical journalists kept pressing Guttmacher to explain why killing a fetus is not murder.240 The Quebec press then regularly reported on the liberalization of abortion in neighboring New York,241 which was in great

part the fruit of a campaign by the National Organization for Women (NOW) and other American activists.242

As social debate escalated, Canada’s therapeutic abortion committee system was increasingly denounced as arbitrary and inequitable.243 First, a woman needed to have access to a committee. Abortion regulations meant that only two out of five hospitals were eligible for them.244 And only half of eligible hospitals chose to create them because many did not want to be involved with abortion.245 Second, committees exercised nearly unfettered discretion to permit or deny abortion in similar cases, partly depending on physicians’ personal views on abortion.246 These circumstances further led to delays of eight weeks on average for an abortion after a committee consultation.247

The 1977 report commissioned by the Canadian government had comprised a survey of physicians revealing that some took offense to the inquiry into therapeutic abortion committees: “None of the government’s business;” “After you get your salaries, appoint a Royal Commission, then shelf it with that crap;” “1) Read [a prior report]. 2) Grow up!”248 These hostile answers suggested that certain physicians did not solely deem the survey ill-conceived or intrusive. Given that the future of abortion in Canada remained uncertain, fear of the government could have been felt either by doctors sympathetic or hostile to abortion.249 Conversely, other sample responses were enthusiastic: “I think this is a useful Committee. . . . We must continue to examine and explore the issues—not avoid them;” “The Committee is approaching a difficult area very reasonably. We need

more information and less emotion.”250 Over half of surveyed physicians wanted abortion to be decriminalized, whereas a third favored the status quo.251

Pressure for reform had been mounting. In 1970, the Vancouver Women’s Caucus had led its Abortion Caravan to Ottawa to protest the 1969 law.252 The protesters chained themselves to the House of Commons’ public gallery, channeling the British suffragists of 1908.253 Over the next decades, feminists across the nation regularly advocated for reproductive rights. Lise Payette, a television host who would later become Quebec’s minister for women’s affairs, notably delivered a momentous speech: “I want to be the owner of my body. . . . And you, gentlemen, who still make our laws, ask yourself in the depth of your conscience whether your attitude would not greatly change if you brought children into this world.”254

The Canadian Medical Association, Canadian Bar Association, and United Church, the largest Protestant denomination, played an important role in urging the liberalization of abortion.255 Their most sustained opposition stemmed from the Canadian Catholic Conference.256 Critics associated the 1969 abortion law, adopted under Pierre Trudeau’s Liberal government, with a wider moral decadence.257 Their concerns echoed those found in the United States, as epitomized by a Newfoundland legislator who decried that a government which “[eases] curbs on drugs, makes divorce easier, permits abortion and homosexuality, is in the process of remaking our society.”258

Meanwhile, the criminal prosecutions of Dr. Morgentaler kept drawing media coverage and public sympathy. In 1975, the American Humanist Association gave an award to both Morgentaler and Betty Friedan.259 That same year, an international committee in support of Morgentaler was created in Paris, attracting prominent French figures.260 Several Quebec doctors signed a declaration admitting that they had helped

women seeking abortion, prompting further police investigations.261 In public statements, Dr. Morgentaler kept insisting that society was on his side and for women’s rights.262

After three separate Quebec juries chose to acquit Dr. Morgentaler, the province’s government finally declared in 1976 that it would no longer seek to enforce the federal criminal statute that the public deemed unjust.263 This did not merely reflect defiance by the newly elected Parti Québécois, which governed the province and unsuccessfully pushed for national independence. The choice to leave Dr. Morgentaler and his patients alone reflected shifting social mores during Quebec’s Quiet Revolution that saw it evolve from a highly conservative and Catholic province to a largely liberal and secular one, thereby converging with much of the modern Western world.264

To many reformers in Canada in the 1970s and 1980s, the United States was a harbinger of modernity given its liberalization of abortion. In November 1983, leading American feminists Flo Kennedy and Gloria Steinem spoke at a Toronto fundraiser to help Henry Morgentaler’s legal defense.265 Kennedy and Steinem recounted the abortion rights struggle in America and praised the Canadian doctor for his vision.266

A few days later, another criminal trial began in Toronto against Morgentaler and two co-defendants, Dr. Robert Scott and Dr. Leslie Smoling.267 Their reputable defense counsel, Morris Manning, used the trial as an opportunity to create a comprehensive record on abortion by drawing upon American expert witnesses and jurisprudence.268 American and Canadian obstetricians and gynecologists testified that human beings do not exist from the time of conception.269 An American psychologist contested

the notion that women who choose abortion are selfish or irresponsible.270 Witnesses from abortion clinics in Buffalo, New York and Duluth, Minnesota reported an increase in the number of Canadian women coming to their clinics.271

Because American law then was more favorable to abortion rights, Manning used it as persuasive authority. A key question was how to interpret Section 7 of the Canadian Charter of Rights and Freedoms: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”272 The Charter had recently been enacted in 1982 following a major constitutional reform.273 After facing repeated setbacks, Dr. Morgentaler’s hope for a Canadian Roe was facilitated by the adoption of this Canadian analog to the U.S. Bill of Rights.274 Their texts read differently but shared similar roots in British law and would sometimes serve to address the same constitutional issues. According to Morton, the Charter enhanced the importance of rights claims and litigation in Canadian society, offering Dr. Morgentaler a new means to challenge the antiabortion law.275 Manning too believed that Roe and other American cases could inform the interpretation that the criminalization of abortion in Canada violated “liberty” and other rights under Section 7.276

Manning had read scores of U.S. law review articles on the right to privacy and its culmination in Roe.277 He strategically sought to convince the trial judge to find a right to privacy in the Canadian Charter, noting that the lack of explicit mention of that right in the U.S. Constitution had not precluded American Justices from recognizing its existence.278 In contrast, the Canadian prosecutors emulated the opposite side of the American debate by arguing that Roe was wrongly decided, had stirred bitter controversy, and was under threat of being overruled by the U.S. Supreme Court.279 The arguments of Crown prosecutor Arthur Pennington delved into American legal history in surprising detail, citing Oliver Wendell

Holmes, Louis Brandeis, Felix Frankfurter, and the infamous Lochner decision.280 One source Pennington marshaled at length before the trial judge was A Private Choice (1979), an anti-abortion book by John Noonan, an American law professor whom Ronald Reagan appointed federal judge in 1985.281 Citing Noonan, the prosecution suggested that abortion is moral degeneration analogous to slavery.282 America’s abortion debate had been exported into Canada.

Echoing arguments that Texas had raised in vain in Roe,283 the Canadian prosecutors defended abortion restrictions on the ground that the state had a compelling interest in protecting both the fetus and mother.284 Yet when the prosecution indicated that it need not make submissions on when life begins, deviating from Texas’s claim that life begins at conception,285 the trial judge wittily expressed relief: “The U.S. Supreme Court ducked it, and the Canadian Supreme Court ducked it, and so will I.”286

The test case initially failed. The trial judge, William Parker, declined to find the abortion law unconstitutional, paving the way for a jury trial.287 The result was another acquittal, as the Toronto jury matched the three prior Montreal juries unwilling to convict Dr. Morgentaler.288 The Ontario government appealed.289 This would give the Supreme Court of Canada a chance to tackle the questions of law that Manning had unsuccessfully marshaled before the trial court.

In 1988, Canada’s highest court struck down the 1969 criminal statute in a 5-2 vote, thereby decriminalizing abortion.290 While no more than two Justices joined the same opinion, the majority was not as fractured as it

seemed—all Justices expressed concern about governmental overreach and infringements on women’s rights. “Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person,” Chief Justice Brian Dickson wrote in an opinion joined by Antonio Lamer—broad language tempered by an unwillingness to recognize a right to privacy akin to Roe.291

Recall that, in 1976, Dickson and the Supreme Court had reversed a jury acquittal and effectively sent Morgentaler to prison.292 Dickson had subsequently faced criticism for upholding the criminalization of abortion.293 He seemed torn by the issue, appearing sympathetic to abortion rights but troubled by Dr. Morgentaler’s defiance of the criminal law.294 After being promoted to Chief Justice a few years earlier, Dickson finally voted to strike the same abortion law he had previously upheld. “The arguments against the abortion law were virtually identical in both cases,” but “Canada, its Supreme Court, and Brian Dickson had changed,” his biographers Kent Roach and Robert Sharpe describe.295

The resurgence of the U.S. anti-abortion movement had buoyed Canadian anti-abortion forces in the run-up to the decision. Ronald Reagan’s book, Abortion and the Conscience of the Nation (1984),296 had been shipped to Chief Justice Dickson by the Victory Life Fellowship in Calgary as part of a letter-writing campaign.297 Dickson had instructed a legal officer to reply with a polite thank-you note and explanation that only the law was relevant to the case.298 The officer sent a similar missive in response to outreach from a pro-choice group.299

Striking the statute criminalizing abortion led abortion to become a right in Canada. As Parliament did not pass a new ban, women could have abortions without fear of prosecution.300 To be clear, Canada’s Justices did not hold that abortion was a fundamental right, and the Canadian Parliament did not pass legislation to that effect. But a basic understanding of rights in a democracy is that one has the right to do what the law does not forbid. The 1988 Morgentaler decision thereby became one of the most important ones in Canadian history.

Through it all, America remained both a model and cautionary tale. Manning’s defense brief had cited seventy-one U.S. cases and twenty U.S. law review articles.301 The prosecution had responded that Canada should avoid the terrible mistakes that America made in Roe.302 In the end, the

Canadian Justices cited seventeen American cases, compared to twenty Canadian cases.303

Justice Bertha Wilson, the first woman on the Supreme Court of Canada, was perhaps the Justice most receptive to American jurisprudence. “[T]he right to liberty under our Charter is consistent with the American jurisprudence on the subject,” she stressed.304 She underlined that Roe’s holding had been reaffirmed in Akron v. Akron Center for Reproductive Health305 and Thornburgh v. American College of Obstetricians and Gynecologists.306 She cited several other American cases for support, including Loving v. Virginia307 and Griswold v. Connecticut.308 Justice Wilson further cited Laurence Tribe, the renowned U.S. legal scholar, when discussing Roe’s holding.309 Other Canadian Justices were mindful of the American landscape, as Justices Jean Beetz and Willard Estey’s opinion remarkably discussed how, in Akron, Justice Sandra Day O’Connor expressed reservations about Roe’s trimester framework310 and its reasoning on fetal viability.311

That said, the majority of the seminal decision did not address American law. In fact, commentary on the matter has often devoted no attention to Roe or the decriminalization of abortion in the United States.312 Canada had its own legal issues and a longstanding movement for reproductive rights, which did not simply mimic its American counterpart. The history of abortion in the neighboring nations is nonetheless intertwined.

The United States was not the only country that Canadian reformers could have looked to for inspiration. In 1968, the United Kingdom adopted landmark legislation permitting elective abortion, which obviously drew

attention in Canada.313 But the Canadian Parliament refused to go in the same direction as the British Parliament. Litigation, not legislation, would be the means to decriminalize abortion in Canada. Roe v. Wade thus provided a closer model for change.

It is ultimately unclear whether appealing to Roe was an effective strategy for the Canadian abortion rights movement.314 In any event, the historical circumstances suggest that Canada was on the verge of joining the rest of the West in decriminalizing abortion, irrespective of what in America. Rather than conjecture about the strategy’s occurred effectiveness, the upshot is that the United States played a largely overlooked role as a model to Canadian reformers. In the aftermath of Dobbs, Canada may readily seem like a model to follow for Americans supporting abortion rights, although this would mark both an extraordinary historical reversal and role reversal.

Megan Leslie—a reputable figure in Canadian civil society and a former legislator315—described how her interest in abortion law and policy emerged in the early 2000s when she traveled to the United States in order to attend RebLaw, the annual Rebellious Lawyering conference at Yale.316 Then, a law student at Dalhousie in Nova Scotia, Leslie was initially disappointed to learn that RebLaw’s program that year centered on abortion and capital punishment—two issues she thought had been settled in Canada.317

Canada’s Parliament had indeed abolished the death penalty in 1976—the same year the U.S. Supreme Court reauthorized executions318 after a temporary, four-year abolition.319 Despite future tensions over the extradition of prisoners who risked being executed in the United States,320 capital punishment appeared a settled matter in Canada

that

after a vote to reintroduce it failed in Parliament by a 148-127 margin in 1987.321 This period also seemingly marked the resolution of the debate over abortion in Canada with the 1988 Morgentaler decision.322 As abortion and the death penalty are intricate issues often addressed in tandem,323 it is revealing that Canada had ostensibly gravitated toward the modern liberal position on these matters by the late 1980s.

In the aftermath of her trip to Yale for RebLaw, however, Leslie came to realize that abortion was not a genuinely settled issue in Canada. Serious questions about access to abortion persisted. Difficulties were not limited to obstacles for women lacking geographic proximity to abortion clinics or the financial means to vindicate their rights. Anti-abortion legislators occasionally proposed restrictions, which Leslie responded to as a Member of Parliament.324 Most importantly, several provinces sought to be abortionfree zones.325 Prince Edward Island would especially stand out in remaining a “life sanctuary” until 2016.326

This section describes how social divides about the legitimacy of abortion lingered in Canada after its decriminalization in 1988. The antiabortion movement then focused its resistance at the provincial level, trying to regulate abortion out of existence. This partly converged with the strategy of the U.S. anti-abortion movement, which responded to Roe by trying to impede access to abortion at the state or local level.327 But comparative history will reveal far more divergence than convergence at this point. In the United States, the pro-choice movement was on the retreat as anti-abortion forces gained ground in the aftermath of Roe.328 In Canada, by contrast, it was the anti-abortion movement that was severely on the retreat in the aftermath of Morgentaler and chiefly defeated by the dawn of the twenty-first century.

A. From Decriminalization to Deinstitutionalization

In 1990, a twenty-year-old woman died in Toronto from a botched self-abortion with a coat hanger.329 Two weeks earlier, a teenager in Kitchener sustained grave injuries in another botched home abortion.330 Details remained confidential but these cases were consistent with misinformation that abortion was again illegal in Canada after the passage of a House bill.331 It never would become law after failing to garner Senate approval,332 leaving Canada with no national legislation overseeing abortion and full decriminalization to this day.

When the Supreme Court of Canada struck the abortion law in 1988, it had left the door open for new legislation that might have passed

constitutional muster. The government of Prime Minister Brian Mulroney of the Progressive Conservative Party eventually proposed legislation that would have criminalized abortion, except if a doctor deemed it justified for medical or mental reasons.333 The bill displeased both the pro-life and prochoice movements since abortion would still have been allowed but restricted, recalling past divides over therapeutic abortion committees.334 The House of Commons passed the controversial bill by a 140-131 margin.335 The Senate did not pass it, tying in a vote of 43 to 43.336 The bill’s defeat in 1991 marked the last significant legislative attempt to criminalize abortion in Canada.337

Canada’s anti-abortion movement faced other devastating setbacks. In particular, the Supreme Court roundly rejected the concept of fetal personhood, which could have served as a basis for another criminal ban.338 The Canadian movement for fetal personhood at times mirrored its American counterpart. For instance, in each country, men invoking fathers’ rights sought to prevent abortion by their ex-girlfriends, claiming a strong bond with their unborn children.339 They further argued or implied that the women’s decisions to receive an abortion reflected immaturity, a frivolous choice to avoid the responsibility of motherhood and deprive them of fatherhood.340 The U.S. anti-abortion movement saw fathers’ rights as another way to establish fetal rights.341 Men in several Canadian provinces similarly sought injunctions against former partners to try and block their abortions.342

In 1989, Chantal Daigle’s case garnered media attention343 after two provincial courts recognized a fetus as a human being under Quebec law— ruling in favor of her abusive ex-boyfriend who had requested an injunction

to have her carry the pregnancy to term.344 Daigle’s affidavit revealed her predicament, which the provincial courts had found inconsequential:

Daigle finally took the matter into her own hands by traveling to Boston to terminate her pregnancy, defying the injunction.346 Her lawyer, Daniel Bédard, learned about this in the midst of arguing her appeal before Canada’s Supreme Court, causing a dramatic pause in the proceedings once he notified the Justices.347 Given her uncertain fate in Canada, Daigle later explained in an interview that she was determined to travel to America for her abortion, insisting: “I am not 100 percent for abortion. I am 100 percent for the freedom to choose!”348

Strikingly, this paralleled the defiance of the woman in a concurrent Indiana case, who ignored a trial judge’s order that she not receive an abortion based on her ex-boyfriend’s claim about paternal rights.349 The American “Jane Doe” from this 1988 case apparently maintained her anonymity,350 unlike Chantal Daigle in 1989. Daigle would become

relatively famous in Canada, especially in Quebec, despite her choice to avoid the media.351 A TV series about her case, titled Désobéir or “to disobey,” was released in 2023 after the end of Roe v. Wade revived interest in her story.352

Although Daigle’s choice to end her pregnancy mooted the exboyfriend’s demand for an injunction against her abortion, the Supreme Court of Canada delivered a landmark, unanimous decision reasoning that a fetus is not a human being.353 On one hand, the Justices did not technically decide this constitutional issue and mostly rested under Quebec law since it was the basis for the injunction.354 On the other hand, they concluded that neither Canadian constitutional law nor provincial law enable the prohibition of abortions based on the claim that a fetus is a protected person.355 The Court still let Parliament legislate on fetal personhood, which it never did. As for the fathers’ rights claim, the Justices disputed “the argument that a father’s interest in a fetus which he helped create could support a right to veto a woman’s decisions in respect of the fetus she is carrying.”356 Alongside Canadian jurisprudence, the Justices cited several

American cases for support.357 Tremblay v. Daigle may prove persuasive in modern America, where the anti-abortion movement had already succeeded in having fetal personhood recognized in various areas of state law years before Dobbs.358 The movement’s long-term goal is having the U.S. Supreme Court recognize fetal personhood through the Fourteenth Amendment in view of banning abortion nationwide.359

Tremblay v. Daigle was not the only prominent Canadian case following the decriminalization of abortion. Joseph Borowski, a leading anti-abortion activist, still hoped that the Supreme Court of Canada would change course.360 Borowski devoted much of his existence crusading against abortion, even conducting an eighty-day hunger strike in 1981 to pressure legislators and judges to recognize a fetus’s right to life.361 His health deteriorated until the Vatican’s emissary to Canada intervened, telling Borowski that the Pope wanted him to stop fasting.362 A former union-activist and Manitoba legislator, Borowski had become the face of the anti-abortion movement just as his nemesis Henry Morgentaler personified the abortion rights movement.363 Borowski’s rhetoric sparked controversy, as it ranged from defending the sanctity of fetal life to condemning those who aborted as “a handful of cheap, third-rate tramps (and also some good women).”364 When his own test case made its way to the Supreme Court of Canada in 1988, Borowski brought jars with fetuses that he would have shown to the Justices if his counsel had not urged against it.365 After the Court unanimously rejected his test case for fetal personhood, finding that he lacked standing to argue on behalf of the unborn,366 Borowski told the press that if he had been present for the announcement, he probably would have “punched the judges in the nose.”367

Borowski’s outburst may be interpreted as the last cry of the Canadian anti-abortion movement in its most radical form. An outright criminal ban

on abortion was a lost cause by the late 1980s.368 If what the likes of Borowski aspired to was no longer conceivable in Canada, the same could not be said about America. Buoyed by dedicated activists and elected officials, the U.S. anti-abortion movement was becoming drastically more powerful. Once the U.S. Supreme Court rendered its Dobbs decision after a five-decade battle against Roe, multiple states instituted stringent criminal bans that appeared unthinkable in contemporary Canada.369

Notwithstanding rising divergence, anti-abortion radicalism did not simply vanish in Canada. Physical violence against abortion providers occasionally struck. Three shootings took place in the 1990s.370 The Morgentaler Clinic in Toronto was firebombed in 1992.371 The picketing and harassment of abortion clinics led to demands for injunctions against overzealous protesters.372 And the emergence of crisis pregnancy centers stirred debate, as these centers are designed to resemble abortion clinics to attract pregnant women and dissuade them from aborting, often with misleading information.373 In Fredericton, New Brunswick, a crisis pregnancy center even opened in the building next to the Morgentaler Clinic in order to disrupt its operations.374

These were also features of the debate raging in post-Roe America. But violence, harassment, pickets, injunctions, and crisis pregnancy centers were more intense and pervasive features in the United States.375 While crisis pregnancy centers were independently created in both America and Canada in the 1960s,376 the radicalism of the U.S. anti-abortion movement

influenced at least some Canadian actors. The first Operation Rescue protest in Canada,377 a 1988 blockade of Morgentaler’s Toronto clinic, involved many Americans who had come for an anti-abortion conference.378 By the same token, the manager of a reproductive services center in Montreal suspected that U.S. religious organizations were funding local anti-abortion groups.379 America’s powerful anti-abortion movement provided inspiration and organizational support to its waning Canadian counterpart.380

Most importantly, anti-abortion radicalism lost its

institutional foothold in Canada, which explains why a criminal ban no longer seemed conceivable after the early 1990s. No Prime Minister pursued an antiabortion platform.381 Fewer legislators were elected to office on such a platform.382 And no anti-abortion legislation has passed Parliament over the last three decades.383 Last but not least, Canada has no equivalent to the evolution of the U.S. judiciary, where the Republican Party and allied organizations, such as the Federalist Society, expressly sought federal judges who would be unreceptive or hostile to abortion rights.384

Losing its institutional foothold at the national level constrained the Canadian anti-abortion movement to become more moderate in its aspirations. Its efforts became more concentrated in a few provinces prepared to use regulations to impede abortion access. However, the following section will describe how regional efforts to regulate abortion out of existence in Canada again largely failed in comparison to similar ones in the United States.

B. Regional Divide and Anti-Abortion Regulation

Like post-Roe America, where blue states have leaned pro-choice and red states pro-life, post-Morgentaler Canada split between provinces

embracing and resisting abortion. Even so, the regional divide was not as stark as in the United States. In broad strokes, left-leaning Quebec, Ontario, and British Colombia tended to be the provinces most supportive of abortion’s liberalization.385 Conservative-leaning provinces also proved more moderate on abortion than red states in America.386 Although nowadays Alberta is sometimes perceived as the most conservative Canadian province, the most prominent battles over abortion restrictions would take place elsewhere, namely in the Maritime provinces of New Brunswick, Nova Scotia, and Prince Edward Island.387

After Canada decriminalized abortion in 1988, the medical procedure was generally covered by public funding, at least in principle.388 This marked a major divergence from the United States, where both the federal government and numerous states prohibited public funding, thereby undercutting what Roe meant in practice, since underprivileged women could lack the means to terminate a pregnancy.389 Nevertheless, access remained particularly contested in Maritime provinces that used funding regulations and other means within their jurisdiction to restrict abortion.390

While criminal law is a matter of federal jurisdiction in Canada,391 the federal and provincial governments share jurisdiction over health care regulations.392 The Canada Health Act, a federal statute, provides that a medically necessary procedure must be covered under a province’s public health insurance system.393 Certain provinces have argued that abortion is not medically necessary.394 In particular, a recurrent legal issue has been whether provincial funding may lawfully be limited to abortions conducted in hospitals or must also include private abortion clinics.395 Such funding restrictions on private clinics can have repercussions for abortion access

because hospitals may lack capacity and cause delays for women seeking to end their pregnancy.396

Yet a neglected factor in the ongoing debate over abortion access in Canada is that difficulties reflect wider problems with the nation’s medical system. Overall, Canada has significant waiting times for access to medical services compared to other nations with universal health care, such as France and Germany.397

The bottom line is that the vast majority of abortions in Canada have been publicly-funded for decades.398 Although access remains an issue in parts of the country, the tide of litigation and legislative reform over time has led to expanded funding and services.399 Furthermore, in 2022, the Canadian government announced an increase of over 3 million Canadian dollars to improve public information about abortion and enhance access to it,400 partly in response to the international outcry following the leaked Dobbs opinion.401

The arc of history has therefore seen abortion evolve from a crime to a public service in Canada. Henry Morgentaler likewise went from criminal defendant and prisoner to being awarded the prestigious Order of Canada in 2008.402

How does one explain this paradigm shift? By process of elimination we can rule out the idea that Canada’s once powerful anti-abortion movement lacked the opportunity to defend its convictions in legislatures, courtrooms, and the public arena. For decades, its numerous advocates ranged from politicians to prosecutors to activists. They not only presented a host of moral, religious, policy, and legal arguments, but also occasionally relied upon humanistic rhetoric often equated with liberalism. An appellate brief urging the recognition of fetal personhood illustratively cited Dr. Harley Smyth: “There was a time when I couldn’t walk and a time when I couldn’t speak and a time when I couldn’t articulate my claim upon you as a brother, but there has never been a time when I was not the same

individual.”403 Dr. Smyth, a Toronto neurosurgeon, was less likely to persuade Canadians with his public statement likening abortion to the Holocaust. “The ideas which started in the Second World War have us again by the throat,” he lamented.404

A better spokesperson for a humanistic perspective among abortion opponents was Bertrand Blanchet, the genial bishop of Gaspé, Quebec. Driven by a thirst for knowledge and new experiences, Blanchet once memorably landed at a religious ceremony he had to lead by hang-gliding from a nearby mountain.405 Interviewed alongside Dr. Morgentaler on the abortion issue, Blanchet began by stating, “I would have preferred that you did this interview with a woman . . . I feel trapped, as a man, celibate, and cleric. I fear not being credible to some people.”406 Blanchet had studied biology before joining the clergy.407 Like many Americans involved in the pro-life movement, he used science to try and defend fetal personhood, albeit in a nuanced fashion, as when he questioned Roe’s trimester framework and its reliance on viability.408 A fetus “is viable . . . if you let it live,” he pointed out.409 “Of course, this human being is not yet humanized. . . . even the brain of the newborn is insufficiently developed to enable him to do a minimum of intellectual activities. And humanization is done also through culture. . . . and it is incumbent on education to make us attain liberty and civilization.”410 To Blanchet, “humanization” is “a lifelong process” that does start at conception but does not end at birth.411 A fetus “is not simply a potential human being but a human being with a potential for development.”412 “Every time a child is born, God does not despair for humanity,” Blanchet concluded.413

These examples again demonstrate that the types of claims made in the Canadian abortion debate were analogous or identical to claims found in the United States. The anti-abortion movement had a fair hearing in Canada with ample opportunities to promote its convictions. The main distinction is that these arguments had overwhelmingly failed in Canada by

the end of the twentieth century, whereas America remains in a fierce battle between opposite views of the issue well into the twenty-first century.

We will later see that the anti-abortion movement’s goals and strategies proved far more successful in modern America.414 However, for four decades, regulations did succeed in keeping abortion out of a Canadian province that deserves closer attention, namely Prince Edward Island. The province shows how the anti-abortion movement long prevailed in a region of Canada before collapsing and converging with the rest of the country in allowing abortion—in the same historical period when the U.S. antiabortion movement triumphed in recriminalizing abortion.

C. The Last Stand of Canada’s Anti-Abortion Movement?

This comparative history would not be complete without a case study of the Canadian province that most converged with the aspirations of the U.S. pro-life movement: Prince Edward Island. Throughout all the discussion of Dobbs and America’s international divergence, virtually all commentators were unaware that close to the United States’ border a Canadian jurisdiction had successfully barred abortion for decades—until finally authorizing abortion shortly before it was recriminalized in America.

Prince Edward Island is Canada’s smallest province in both size and population. A predominantly rural area, it has approximately 174,000 inhabitants nowadays415 and spans 2,185 square miles.416 Its physical size ranges between Delaware and Rhode Island,417 which both have larger populations.418 Prince Edward Island is also known as one of the nation’s most conservative provinces.419 Its smallness favored its anti-abortion movement, as people who advocated reproductive rights or women who sought abortions were long met with social disapproval or stigma.420

Recall that, prior to the seminal Morgentaler decision of 1988, Canadian law provided that abortion was a crime except if allowed by a

therapeutic abortion committee. We saw that these committees operated differently across the country, as some effectively allowed abortion on demand, whereas others tended to veto all abortions.421 While the therapeutic committee system only provided a limited right to abortion, it was a nonstarter for Prince Edward Island’s pro-life movement. Its leaders and activists were convinced that committees were unreliable and risked allowing elective abortion.422 They deemed that abortion violated the sanctity of human life, even in cases of danger to the life of the mother.423 Accordingly, the movement’s goal was to categorically bar abortion on Prince Edward Island without exception.424 Its strategy was to eliminate therapeutic abortion committees, which would effectively abolish abortion in the province.425 This initiative initially faced pushback from public officials and residents, but after several years, it succeeded in 1986.426 Abortion would no longer be performed on Prince Edward Island until 2017.427

Until the 1980s, following the relative liberalization of abortion in the province, around sixty abortions had reportedly occurred each year.428 The Prince Edward Island anti-abortion movement thereafter grew so influential that the province’s lone therapeutic committee did not approve any abortion between 1982 and its abolition in 1986.429 The Catholic Church played a key role in fomenting and funding the province’s anti-abortion movement.430 Prince Edward Island’s bishop urged citizens to “join the political process by expressing your convictions relating to the sanctity of human life and your concern for the unborn.”431 Elected officials commonly echoed the same conviction that human beings exist from the time of conception.432 In 1988, provincial legislators responded to Morgentaler

with a resolution condemning abortion.433 The resolution was non-binding since provincial governments lacked the jurisdiction to criminalize or simply ban abortion,434 but it signaled official support for administrative policies aiming to bar access to abortion in practice.

The province’s anti-abortion movement was especially successful at the grassroots.435 At the outset, it stopped the creation of a therapeutic abortion committee when the new Queen Elizabeth Hospital opened in 1982.436 For a nominal fee, any resident could join the hospital’s membership and thus vote on bylaws.437 The movement led the hospital membership to surge from several dozen people to around three thousand.438 Even though the new hospital’s doctors had voted to have a therapeutic abortion committee, the expanded hospital membership blocked its creation.439 A similar strategy led to the abolition, in 1986, of the therapeutic abortion committee already in existence at Prince County Hospital, thereby barring all abortions on the island.440

American pro-life doctors and activists were among the speakers at pro-life events on Prince Edward Island in this period.441 Visitors included Dr. Bernard Nathanson, the maker of The Silent Scream (1984), a controversial American film depicting abortion as murder.442 On the flipside, the impossibility of getting abortions on the island led some doctors to refer patients to facilities in Maine, Massachusetts, and New York—provided they had the means to travel to neighboring America.443

By 1995, legal challenges led Prince Edward Island to a peculiar compromise: outsourcing abortions to another Canadian province. As the government refused to tolerate abortions on its land, it covered the expenses of certain women who traveled to neighboring Nova Scotia to

to challenge

terminate their pregnancy, assuming they received official approval.444 The these funding indefatigable Henry Morgentaler came procedures as arbitrary and burdensome.445 The litigation ultimately failed, meaning Prince Edward Island’s system of off-island abortions remained a source of financial and practical hardship.446 Pervasive barriers to abortion encompassed a lack of transparency about the few resources and options available, besides trouble identifying doctors willing to provide referrals for off-island abortions.447 In some cases, women harmed themselves when trying to terminate pregnancies on their own, such as by running into furniture or punching their stomach.448

Abortion pills partly changed the equation insofar as they had allowed abortion to be performed on Prince Edward Island before the authorization of mifegymiso in 2017,449 the drug known as mifepristone in the United states.450 Beforehand, “medical abortion in Canada could be provided only through off-label use of methotrexate and misoprostol prescribed by physicians in private, community, or hospital-based specific abortion clinics, and more than 95% of abortion care was surgical.”451 Experts described pre-mifepristone medical abortions as cumbersome.452

In January 2012, local news in Prince Edward Island reported on the option to abort via this earlier form of medication and without surgery up until a specified number of weeks of pregnancy.453 Yet a study later revealed that ingrained obstacles impeded this option for islanders: “The medical abortion is available locally however the government website does

not have information about how to obtain a medical abortion, many physicians are not aware of it, and some refuse to provide a referral for it.”454 All but one woman in the study reported satisfaction with the medication if they managed to access it, but that remaining case exposed outstanding barriers.455 “[M]edical abortion needs to have surgical abortion back up available in case the medical abortion is not successful;”456 the patient in this situation struggled securing a referral and getting her surgical abortion off-island in Nova Scotia under distressing circumstances.457

This environment had led college friends to start an informal “abortion insurance” group in the early 2000s, pooling several hundred dollars in case one needed to travel off-island for an abortion.458 Kate McKenna stood among the local students concerned about the province’s anti-abortion policies.459 Raised in a Catholic family with whom she attended mass every week, McKenna became a leader in the province’s abortion rights movement before becoming a journalist with the Canadian Broadcasting Corporation (CBC).460 In 2011, she became a co-founder of the PEI Reproductive Rights Organization (PRRO), a group of young women dedicated to allowing abortion in the province.461 The volunteers organized a public-information campaign.462 Reform initiatives further included hosting an international conference on abortion access in 2014.463 Colleen MacQuarrie, a professor at the University of Prince Edward Island, played a leading role in organizing the conference464 and spearheading research on

local experiences with abortion;465 braving pushback from some voices in the university while garnering overall support.466

Despite growing media attention, the provincial government rejected reform.467 This led PRRO toward litigation, overcoming its misgivings about the financial cost, time, and uncertainty of court challenges that might end up with a ruling that Prince Edward Island met its obligations by paying for abortions in Nova Scotia.468 Two feminist lawyers, Kelly McMillan and Nasha Nijhawan, took the case pro bono.469 The initiative was buoyed by the support of LEAF (Women’s Legal Education and Action Fund)—a prominent Canadian public-interest-law organization. Alongside arguments about women’s equal rights, the lawsuit would notably allege a violation of the “right to life, liberty and security of the person” under Section 7 of the Canadian Charter.470

The dénouement demonstrated a paradigm shift. The provincial government held a press conference to announce that, after careful consideration, it would open an abortion and reproductive health clinic on Prince Edward Island.471 Either the government did not wish to challenge a lawsuit that it felt it would lose, or no longer had the political will to defend an abortion ban, or both.472 The media campaign and lawsuit had pressured the government to change its stance, yet changing social circumstances also enabled reform.473 McKenna concludes her book on Prince Edward Island’s abortion history by describing “a shift in attitudes between the 1990s and 2010s on the subject of abortion: there’s no doubt the general population is more open to it now.”474

Reform occurred under a Liberal provincial government, but this alone hardly explained change, as since the 1980s four other Liberal premiers were elected in Prince Edward Island and the de facto abortion ban continued under their tenure.475 The 2019 election of a new government

led by Dennis King of the Progressive Conservative Party confirmed a paradigm shift. When campaigning for the party leadership, King converged with several fellow candidates in rebuking another candidate who had proposed restricting abortion funding and reconsidering the 2016 reform.476 King instead urged his party to better respond to women’s needs. “I am pro-choice,” the conservative leader emphasized.477 “I don’t feel I have any standing as a 47-year-old man to tell a woman what she should do or can do with her body.”478

Hence, in 2016 the last Canadian province to hold out in forbidding abortion joined the rest of the country in allowing it. This was a watershed moment for Canada’s abortion rights movement and a colossal defeat for its dwindling anti-abortion movement. Despite continuing socioeconomic obstacles to abortion access, this development tracked a significant expansion in abortion rights and services in Canada in past decades.479 A few years later, America faced a contrary development. The U.S. Supreme Court overruled Roe v. Wade and numerous states proceeded to recriminalize abortion.

“Will Roe v. Wade go down the drain?,” an apprehensive Justice Harry Blackmun wondered aloud when speaking to first-year law students during a visit to the University of Arkansas.480 The unusual remarks by a judge mulling the fate of his decision exemplified an extraordinary age. “Many of our fellow citizens grieve over the loss of life that has followed Roe v. Wade,”481 Ronald Reagan had deplored a few years earlier, embracing an insurgent anti-abortion movement that remained as powerful as ever decades later. Whereas scholars still debate whether Roe was a cause or symptom of the abortion divide in modern America,482 the intensity and persistence of this divide is highly atypical.

The United States did not solely diverge from Canada, but from practically the entire Western world.483 Chronic battles over abortion

became a peculiar feature of American exceptionalism in the original sense of the phrase that America is an “exception.”484 This feature grew increasingly intertwined with another dimension of modern American exceptionalism, namely hyper-polarization.485 In comparison to other Western democracies, the United States is more acutely divided over a host of fundamental issues and mired in political gridlock.486

This section analyzes what happened in America during the decades when Canada faced its own abortion battles. Rather than focus on the most prominent U.S. Supreme Court decisions—Roe (1973), Casey (1992), and Dobbs (2022)—on the overarching right to abortion or lack thereof,487 we turn to the sociolegal context. Less prominent cases point to unrelenting battles over abortion in diverse regions of the nation. These clashes reveal an opposite momentum from the one in Canada, where the pro-choice movement gained ground vis-à-vis an increasingly beleaguered antiabortion movement whose failure in Prince Edward Island might have been its last chance to categorically forbid abortion in a region of the country. In the aftermath of Roe, the U.S. abortion rights movement instead appeared increasingly on the retreat. A staunch anti-abortion stance eventually became a litmus test of American conservatism, even as Canada’s Conservative Party gradually abandoned the issue. Roe faced death by a thousand paper cuts through anti-abortion regulations, especially in red states poised to recriminalize abortion as soon as the Supreme Court overruled Roe.

A. The Body as a Battleground

In a 1989 artwork, Barbara Kruger sought to capture the relentless clashes over women’s rights in post-Roe America. A black-and-white portrait picture of a young woman split in positive and negative exposures

was layered with the message “Your Body Is a Battleground” in a red design evoking a billboard, displayed here as Picture 7. Kruger crafted her masterpiece for the Women’s March on Washington in defense of abortion rights and against sexist control of women’s bodies.488

The U.S. anti-abortion movement simultaneously came to place the body at the heart of its cause. Images of fetuses and children featured prominently in its own media representations.489 The documentary The Silent Scream (1984) stirred a firestorm in allegedly showing a live

abortion as a callous, medicalized murder.490 Although scientists found the film misleading, the National Right to Life Committee, a powerful antiabortion group, distributed tens of thousands of copies.491 Recipients included some members of Congress and the Supreme Court.492 The filmmaker was invited to speak at a Congressional hearing.493 A few years earlier, amicus briefs in Roe had already included pictures of fetuses in an attempt to move the Justices.494

Things went farther in Borowski, the 1989 Canadian case for the recognition of fetal personhood.495 Breaking with standard procedure,496 the Supreme Court of Canada allowed counsel for the anti-abortion side to show in court a series of ultrasound videotapes of fetal life. But the flickering images were not as visually compelling to the Justices as the advocates had hoped.497 Mary Eberts channeled the evolution of Canadian law and public opinion in her arguments on behalf of LEAF as an intervener. “[W]here is that fetus [in the video]?,” she asked the Justices. “It is in a grainy blur. That grainy blur is a woman. . . . Broaden your focus.”498

Pleas for fetal personhood backed with visual effects found a much wider audience in the United States. If “the medium is the message,” in the words of Marshall McLuhan,499 conflicting media representations encapsulated an America increasingly split between irreconcilable views of abortion and visions for the future.

This outcome was hardly foreseeable in 1973, for Roe initially was not as controversial as one might expect. A 7-2 decision, it even garnered an approving concurrence by Warren Burger, the conservative Chief Justice. Three of the four Justices that then conservative Richard Nixon appointed to the Supreme Court were on the side of abortion rights in Roe, namely Burger, Harry Blackmun, and Lewis Powell, the holdout being William Rehnquist.500 “The plain and simple fact is that at the time Roe was decided,

Blackmun, Burger, and Powell did not view the abortion issue as posing a particularly ideological question,” Geoffrey Stone writes.501 “Although all of the justices understood that Roe addressed a highly emotional and important issue, none of them imagined that it would become a flash point of American politics or that it would continue to shape those politics for decades to come.”502 The next Justice appointed to the Court—John Paul Stevens in 1975 by the Republican Gerald Ford—was not even questioned about abortion at his confirmation hearings, a far cry from the relentless probing future nominees would face.503

Roe had attracted relatively limited involvement by special interest groups and experts for either side.504 Fifteen years later, when Webster v. Reproductive Health Services was argued in 1989, a record seventy-eight amicus briefs were filed, including forty-six supporting the ascendant antiabortion movement.505 Strikingly again, the Nixon administration did not have the Solicitor General get involved in Roe, notwithstanding Richard Nixon’s avowed abhorrence of abortion.506 The Solicitor General would subsequently become a significant actor in abortion cases,507 reflecting an intensifying political debate.

leading expert, has questioned

Roe’s critics have long argued that it exemplified judicial activism in taking a central issue away from voters and elected officials.508 Mary this understanding by Ziegler, a documenting the abortion debate before and after Roe. The Supreme Court’s decision surely exacerbated tensions but did not artificially create them. Nor did it preempt public debate or civic engagement. To the contrary, Americans vigorously debated abortion and all levels of government adopted legislation on the matter.509

In hindsight,

the anti-abortion movement showed remarkable resilience in chipping away at Roe. While its failure to overrule the constitutional right to abortion led to frustration for five decades, it incrementally made it extremely difficult to access abortion in numerous

jurisdictions. One place to start in charting this strategy is the 1976 Hyde Amendment, which eliminated Medicaid funding for abortion except to save the life of the mother or in rape cases.510 As Medicaid had funded over three hundred thousand abortions in the prior fiscal year, this bipartisan legislation severely hindered abortion access for low-income women.511 Most anti-abortion regulations came at the state level, however, ranging from additional bans on public funding to other restrictions.512 Although a majority of Justices rebuffed repeated pleas to overrule Roe,513 an increasingly conservative Supreme Court gave states more and more leeway to hinder abortion access. The Justices upheld the funding restrictions of the Hyde Amendment514 and similar provisions at the state level.515 States could thus choose to fund maternal care but decline to fund abortion.516 The notion that abortion is both a right and a key medical procedure was being undermined.517

Such federal and state prohibitions on public funding were atypical in the modern Western world, where abortion is generally covered by public health insurance.518 “Canada has no piece of legislation that remotely resembles the Hyde Amendment,” as Kelly Gordon and Paul Saurette note, adding that obstacles to abortion in Canada are hardly of the same magnitude as in America.519

The U.S. anti-abortion movement’s success partly stems from the strong institutional foothold it developed both within government and the

Republican Party. In the aftermath of Roe, party leaders and strategists recurrently tried to determine whether the pro-life movement was an asset or liability.520 Some Republicans were concerned that, in the face of greater social tolerance of abortion, strident or uncompromising anti-abortion elements could lead the G.O.P. to lose elections.521 In 1988, John Stuckey, the Chairman of Georgia’s Republican Party, memorably described the Religious Right as “the people who brought you the Salem witch trials and the Spanish Inquisition.”522 Stuckey lamented that the faction that won control of Georgia’s delegation at the Republican National Convention was driven by “a fanatical dedication and an absolute moral certainty.”523 “It has to be stopped if this party is going to be saved,” he warned.524

Whereas Reagan was the most anti-abortion president since Roe, evidence suggested that his stance on abortion did not explain his resounding 1980 electoral victory and that some voters chose him despite his views on the matter, not because of them.525 He too faced pressure from the ascendant anti-abortion movement. When Reagan nominated Sandra Day O’Connor to the Supreme Court, activists accused her of being prochoice and organized protests to try and block her appointment, thereby threatening Reagan with a humiliating defeat.526 These tensions were later obscured by O’Connor’s unanimous Senate confirmation.527

Tensions mounted with the rise of Operation Rescue, a group convinced that the anti-abortion movement was too moderate.528 Its founder, the evangelical activist Randall Terry, was sentenced to five months in prison for planning a 1992 incident where a protester thrust a dead fetus at Bill Clinton.529 Reverend Rob Schenck, one of Terry’s accomplices,530 would later break with the anti-abortion movement and

become pro-choice.531 Schenck resurfaced in the national spotlight after Dobbs, regretfully recounting his role in orchestrating a years-long stealth campaign to build rapport with Supreme Court Justices at social events, influence them, and obtain sensitive information.532

As for Operation Rescue, it relentlessly blockaded abortion clinics in the late 1980s, leading to thousands of arrests.533 It finally foundered in the face of incarceration, hefty fines, and court costs.534 Its radicalism was outmatched by activists who took it upon themselves to murder abortion providers.535 If violence was relatively rare overall, the U.S. anti-abortion movement normalized rhetoric likening abortion to the evils of slavery and Nazism, which stood in stark contrast to the growing tolerance of abortion in the modern Western world.536

The anti-abortion movement appeared most effective when it calmly marshaled its convictions, elected politicians dedicated to its cause, and promoted judges hostile to Roe. Alongside the passage of the Hyde Amendment and its victorious defense before the Supreme Court, the U.S. anti-abortion movement’s growing success is captured by two crucial cases. First, Webster gave states more leeway to restrict abortion when approving a ban on public employees and facilities to perform or assist nontherapeutic abortions.537 Second, Casey trimester framework at the heart of Roe’s holding and replaced it with a standard under which states were free to regulate abortion so long as it did not create an “undue burden” on the constitutional right to abortion.538 This shift reinforced critics’ claim that Roe was unsound to begin with since it rested on poor reasoning.539 Although Casey upheld the constitutional right to elective abortion that would last another thirty years, it showed that Roe

rejected

the

was vulnerable even to some of those who would uphold it. Two Reagan appointees, Sandra Day O’Connor and Anthony Kennedy, were in the Casey majority.540 This bitterly disappointed the pro-life movement, just as Reagan’s failure to ban abortion by the end of his eight-year presidency.541 Yet his appointees played a decisive role in setting the new standard that dismantled much of Roe. He also appointed numerous lower-court judges receptive to anti-abortion regulations.542 The Reagan presidency therefore had a long-term impact on Dobbs, demonstrating why the evolution of abortion law is best understood as an incremental battle fought over decades.

By the time Barack Obama was elected president, the anti-abortion movement had grown increasingly powerful. States passed a record number of anti-abortion measures,543 including Targeted Regulation of Abortion Providers or TRAP laws.544 Such attempts to regulate abortion out of existence made tremendous headway in the United States,545 just as they declined in contemporary Canada where the anti-abortion movement had lost its institutional foothold in the federal government, was retreating at the provincial level, and faced major setbacks in the courts.546

In Roe’s final years, even the abortion rights movement’s last victories could appear pyrrhic. In 2016, the Supreme Court struck a prominent TRAP law in Whole Woman’s Health v. Hellerstedt.547 Texas had passed legislation that i) required abortion providers to have admitting privileges at a hospital located no more than 30 miles from their facility; and ii) heightened the standards of abortion facilities to those of ambulatory surgical centers.548 As the first measure began to be enforced, the number of facilities providing abortions in Texas dropped by half, from approximately forty to twenty.549 Abortion access sharply declined, noticeably for women

in regions bereft of abortion clinics.550 The number of facilities would have plummeted to seven or eight if the surgical-center provision had taken effect.551 These measures exemplified pretextual TRAP laws aiming to torpedo abortion facilities, as abortion was a demonstrably safe procedure.552 In a 5-3 vote, the Supreme Court held the TRAP law unconstitutional, finding that the admitting-privileges and surgical-center requirements were an undue burden on abortion access.553 Justice Anthony Kennedy was in the majority and Whole Woman’s Health was his last major abortion case. Kennedy retired in 2018, enabling President Donald Trump to replace him with Brett Kavanaugh, who would vote to eliminate Roe altogether in Dobbs.554

Both elected officials and activists had long openly declared that they aimed to regulate abortion out of existence. In the years leading to Dobbs, a Mississippi case, Governor Phil Bryant candidly admitted: “My goal, of course, is to shut [down the only remaining abortion clinic in the state.] . . . If I had the power to do so legally, I’d do so tomorrow.”555 Mississippi had the power to do so once the Supreme Court overruled Roe. The issue no longer was the legitimacy of TRAP laws but of recriminalizing abortion.

B. The Recriminalization of Abortion in a Polarized America

“[N]ot much has changed since Roe,” Justice Elena Kagan observed during the tense oral arguments in Dobbs.556 “[W]e are in the same exact place as we were then, except that we’re not because there’s been fifty years of water under the bridge, fifty years of decisions saying that this is part of our law, that this is part of the fabric of women’s existence in this country.”557 Abortion indeed exemplifies a distinctive feature of modern American democracy: a sharper tendency to re-fight and re-litigate battles that have been largely settled in other Western societies.558 Other issues

illustrate this peculiar dynamic, such as the reintroduction of the death penalty following its abolition in Furman v. Georgia in 1972, making the United States the only Western democracy to retain capital punishment.559 Further exemplifying this phenomenon were the relentless efforts to repeal the Affordable Care Act of 2010,560 a relatively limited reform that did not establish universal health care and that was based on past Republican proposals—at a time when universal health care has long been widely accepted by both conservatives and liberals in other developed countries.561 Contrary to what Kagan suggested, however, many things had changed in America since Roe. Not only did the country grow far more polarized as a whole over the next five decades, a substantial minority of the electorate also mobilized against abortion rights.562 Remember that Roe was not particularly divisive when it was decided.563 One reason for this shift was the rise of the Religious Right as a powerful political movement with a strong foothold in the Republican Party.564 This shift was captured between the lines during Dobbs’s oral arguments. As the Solicitor General for Mississippi defended the state’s attempt to ban abortion, Justice Sonia Sotomayor pointedly asked: “How is your interest anything but a religious view?”565

Kagan was nonetheless correct when observing that claims for or against the right to abortion had not fundamentally changed: “people think

it’s right or wrong based on the things that they always thought . . . .”566 The same could have been said about different societies, as illustrated by the similarity of arguments for or against abortion in Canada.567 The difference is that opposition to abortion markedly declined in Canada and other Western democracies over the past half-century, as support or at least tolerance for reproductive rights became the norm. The views of the prochoice movement have been increasingly normalized throughout the modern Western world—except in the United States, which is an outlier in retaining a powerful anti-abortion movement.568 Even though most Americans tend to support the right to elective abortion,569 the continuing influence of a highly mobilized and effective anti-abortion movement has shaped an enduring battle over abortion in an age when the issue has mostly been settled in peer nations.570

is The extraordinary recriminalization of abortion post-Dobbs intertwined with other key features of American exceptionalism in the modern Western world, from a distinctive religious landscape to a more acute from of sociopolitical polarization.571 Unlike America, Canada has generally converged with other Western democracies in experiencing both a normalization of reproductive rights and a decline of Christianity in general and of Christian in particular.572

traditionalism or ultra-traditionalism

In 2022, Dobbs would finally hold that states may criminalize abortion because “a right to abortion is not deeply rooted in the Nation’s

history and traditions.”573 Scholars protested that the decision blurred the historical distinction between pre- and post-quickening abortions in claiming that “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”574 In addition to eclipsing the tolerance of pre-quickening abortions until the second half of the nineteenth century,575 Dobbs faced sharp criticism for employing a historical methodology centering its analysis of modern reproductive rights on the past.576 For reasons that lie beyond these pages, some scholars disagree on whether the “history and tradition” test employed in Dobbs is tantamount to originalism in focusing on norms or rights prevailing in past centuries.577 In any event, either method of interpretation is a feature of American exceptionalism nowadays, as Canada and other Western democracies hardly base modern constitutional rights on judges’ assessment of what rights existed centuries earlier.578

Dobbs further divided the country by eliminating reproductive rights to women’s rights or gender equality. while giving short shrift Exemplifying this criticism, Reva Siegel emphasized that Dobbs is rooted in an illegitimate conception of “history and tradition” reflecting a patriarchal and reactionary worldview:

Justice Samuel Alito’s opinion for the Dobbs majority mirrored the intensity of opposition to abortion in parts of America: “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.”580 While a thorough discussion of Dobbs’s merits is beyond the scope of this Article,581 any weaknesses in Roe’s reasoning probably do not explain why America has been mired in a battle over abortion for at least half a century. The equally strong views of the three liberal dissenters reflected how the crux of the divide is the legitimacy of elective abortion.582 Any Supreme Court decision recognizing or barring a right to abortion would plausibly have proved divisive in modern America, just as legislation authorizing or criminalizing abortion.

In the run-up to Dobbs, abortion rights activists organized protests in front of Justice Kavanaugh’s house.583 These events evoked the tense boundary between the private and public spheres that had long been at the heart of the abortion debate. The protesters seemed unwilling to recognize a sphere of personal privacy for a judge, just as the judge would not recognize a sphere of personal privacy for a choice to carry a pregnancy to term. These events not only symbolized the expression “the personal is political,”584 but also America’s mounting social instability.

Following the public backlash against Dobbs, Donald Trump distanced himself from the anti-abortion movement’s demands for a nationwide ban in his 2024 presidential campaign, saying that the matter should now be left to the states.585 He simultaneously kept rallying anti-

abortion voters and the Religious Right by taking credit for ending Roe.586 In a recorded message announcing his campaign position on abortion, Trump additionally alleged that Democrats support executing newborns.587 “Democrats are the radical ones on this position because they support abortion up to and even beyond the ninth month,” Trump asserted.588 “The concept of having an abortion in the later months, and even execution after birth—and that’s exactly what it is. The baby is born, the baby is executed after birth—is unacceptable, and almost everyone agrees with that.”589 Trump also falsely claimed a consensus of legal scholars and the American people in favor of ending the constitutional right to abortion under Roe, meaning that states could criminalize abortion if they wished: “I was proudly the person responsible for the ending of something that all legal scholars, both sides, wanted and, in fact, demanded be ended: Roe v. Wade. They wanted it ended . . . . My view is now that we have abortion where everybody wanted it from a legal standpoint.”590 In reality, polls conducted since 1989 indicated that a solid majority of Americans opposed overturning Roe.591

Dobbs likewise faced sharp criticism by U.S. allies, from Canada to France, Germany, the United Kingdom, and beyond.592 Joining the chorus, the head of the World Health Organization expressed concern and disappointment with America’s move away from “women’s rights and access to health care.”593 Again signaling disapproval of Dobbs, the 2022 Nobel Prize in Literature went to Annie Ernaux,594 the author of a memoir recounting her illegal abortion back in 1964, when abortion remained a crime in France.595

The liberalization of abortion in the West has focused on “elective abortion,” namely abortion as a matter of choice or for personal reasons.596 This differs from abortion permissible only under narrowly defined exceptions like rape, incest or danger to the life of the mother.597 The distinction has grown important in modern America, whose powerful prolife movement often leads the public debate and media coverage to focus on whether abortion should either be banned or allowed solely in the most extreme cases, which can overshadow elective abortion.598 On one level, the anti-abortion movement’s intransigence and unwillingness to allow any exceptions has undermined its attractiveness to the electorate.599 On another level, the movement’s weight has influenced society by leading it to regularly focus on prospective exceptions to abortion bans, as opposed to whether someone should have the right to terminate an unplanned or unwanted pregnancy for personal reasons as under Roe.600 Notwithstanding various obstacles to abortion access,601 the norm in other modern Western

democracies is instead to liberally allow it in the early- to mid-stages of pregnancy as a matter of choice or for broadly defined social reasons that readily permit it in practice.602

Canada is itself an outlier in having fully decriminalized abortion,603 as its Parliament never passed a new criminal law on abortion after the 1988 Morgentaler decision struck the last criminal statute.604 New Zealand also fully decriminalized abortion in a 2020 legislative reform,605 contrary to Western democracies where abortion still falls under the criminal law in late stages of pregnancy.606 Although Canadians tend to solidly support the right to abortion, surveys suggest that opposition remains non-negligible.607 However, “intensity of support is not an easy phenomenon to measure in survey research.”608 But intensity of opinion can partly be assessed by the salience of an issue in a country’s public debate. And the salience of abortion in the modern U.S. legal, political, social, and academic debate is

extraordinary in comparison to Canada and fellow Western democracies.609 the Furthermore, recriminalization of abortion in America following Dobbs, as this scenario is no longer the hypothetical or theoretical one prior to Roe’s demise.

intensity of belief can now be assessed by

Yet polarization over abortion within the United States signifies that Americans are not outliers as a whole. The pattern of convergence and divergence is found within the United States, too. Blue states have widely converged with the rest of the West in liberalizing and decriminalizing rights under state abortion, constitutions or state laws in the aftermath of Dobbs.610 Conversely, red states have tended to diverge and become outliers in the modern Western world by adopting extremely punitive and restrictive regimes.611

including by strengthening abortion

Ironically, the total number of abortions in America seems to have slightly risen since Dobbs.612 “This rise could be due to increased interstate travel for abortion access, expanded in-person and virtual/telehealth capacity to see patients, increased measures to protect and cover abortion care for residents and out-of-state patients, and the broader availability of low-cost abortion medication,” as noted by KFF, a public-health organization.613 It further cautioned that aggregate data “mask the sharp decline in abortions provided in states with total bans or severe restrictions as well as the hardships that many pregnant people experience in accessing abortion care.”614 In post-Dobbs America, death has been the fate of some whose pregnancies faced complications and who were denied abortion, including two Black women in Georgia. These deaths were preventable but doctors avoided or delayed care for fear of being prosecuted for the crime of abortion.615 While future empirical studies might paint a different picture, these initial findings were consistent with longstanding evidence that banning abortion does not necessarily end it, except for the most vulnerable people, but exacerbates the risks and hardships associated with its access.616

This Article has uncovered the intertwined history of abortion in America and Canada from Roe to Dobbs. If one may readily grasp that this issue is far more divisive in modern America, Canadian history exemplifies how the liberalization of abortion was not self-evident elsewhere in the West. Canada once had a powerful anti-abortion movement that managed to keep abortion a crime until 1988, when the Supreme Court of Canada delivered its landmark Morgentaler decision. This victory was in no small part inspired by the U.S. pro-choice movement, as Canadian reformers repeatedly drew upon Roe.

The liberalization of abortion in Canada was not easy. It was vigorously debated and fiercely litigated. It drew public attention and involved iconic figures, from Chantal Daigle to Joe Borowski and Henry Morgentaler, whose extraordinary civil disobedience campaign and eponymous test case make him a unique historical figure. Still, the battle over abortion lingered in Canada as various provinces resisted its liberalization. Prince Edward Island notably managed to regulate abortion out of existence until 2016, mirroring the efforts of American red states in the run-up to Dobbs.

A historic reversal had nonetheless occurred by the time of Dobbs. Stephen Harper, a conservative evangelical who served as Prime Minister of Canada from 2006 to 2015, declined to reopen the abortion debate.617 This may have reflected pragmatism, as some Canadian conservatives plausibly concluded that criminalizing abortion was no longer feasible. That does not signify that Canadians who have had an abortion no longer face social disapproval or stigma, as an insightful collection of essays recounting women’s experiences with abortion has documented.618 Battles

over abortion access persist, too.619 At the same time, opposition to abortion has declined in intensity in Canada, as demonstrated by Prince Edward Island’s election of a conservative premier who called himself “prochoice.”620 As Dobbs obliterated abortion rights in America, a prominent Canadian newspaper underlined that “[t]here is currently zero prospect of Parliament restricting abortion.”621 Of course, a resurgence of Canada’s anti-abortion movement is theoretically possible.622 The Canadian literature on the subject can strike a pessimistic tone and recurrently warns of a looming threat to abortion rights.623 But this scenario appears highly unlikely absent an upending of Canada’s sociopolitical and religious landscape. Abortion has “dramatically faded to the background in recent years” for the nation’s Conservative Party.624

The official platform of the Canadian Conservative Party now stresses: “A Conservative Government will not support any legislation to regulate abortion.”625 In 2024, Pierre Poilievre, who then led the Conservative Party in opposition to the ruling Liberal Party, insisted that a government under his leadership would not seek to ban or even limit

abortion.626 “I will lead a small government that minds its own business, letting people make their own decisions about their love lives, their families, their bodies, their speech, their beliefs and their money,” he reaffirmed.627 Poilievre and his wife have described themselves as “prochoice,” a stance he confirmed in the Conservative Party’s 2022 leadership race.628 Canada’s Campaign Life Coalition came out against Poilievre during that race, where the only one of the five Conservative candidates to promise restrictions on abortion finished a distant third.629 Poilievre has also called for tolerance toward party members who are “pro-life,” despite rebuking some for their anti-abortion position.630

Some Canadians question whether the Conservative Party’s repeated assurances are true given the presence of anti-abortion elements in its ranks.631 Poilievre identified as pro-life earlier in his career, suggesting he opportunistically changed his stance, but a profile in a leading liberal magazine concluded that “abortion has never been a motivating issue for him.”632 Two decades ago, Poilievre had praised Stephen Harper, the Conservative Prime Minister, for having “tamed” social conservatives and “seduced the centre.”633 By 2022, Poilievre told a journalist that it was “just an obvious fact” that Canada’s Parliament would pass no bill restricting or banning that misrepresenting their modern party as anti-abortion was an electoral strategy by the Liberal Party and New Democratic Party,635 which have

abortion.634 Other Conservatives

objected

have

further sought to associate the Canadian Conservative Party with Dobbs and the U.S. Republican Party.636

This Article has thus documented fascinating patterns of convergence and divergence in the history of abortion. By the final decades of the twentieth century, America was on the same path as Canada and fellow in decriminalizing abortion and expanding Western democracies reproductive rights. Yet this evolution was halted by backlash and gridlock in modern America, culminating in the recriminalization of abortion in over a dozen states at the time of writing.637

The primary distinction between America and Canada is what ultimately happened, not what was argued. Over time many Canadians on either side of the abortion debate made arguments similar or identical to those found in the United States. But the beliefs of the pro-life movement lost traction in Canada in the decades following Morgentaler. It was severely on the retreat in an age where Canadian society had gravitated toward the views of the pro-choice movement. The opposite occurred in contemporary America. The pro-choice movement was on the retreat, as it was increasingly outmatched by a resilient pro-life movement whose staunch support for Donald Trump eventually contributed to historical and societal transformations reaching far beyond the issue of abortion. While most Americans opposed the end of Roe and the recriminalization of abortion, instead favoring reproductive rights, the anti-abortion movement has exerted an outsized influence over U.S. law, policy, and politics.638

As we ponder the future, our journey into the past has shed light on the present. The Canadian protesters with whom this Article began stood with Americans demanding the same reproductive rights existing in Canada. A few generations ago, Canadian reformers pointed to Roe v. Wade as a model to follow, revealing a historical reversal and role reversal. America was not always an outlier on abortion and it may not always be.

--- FOOTNOTES ---

Part of the Human Rights Law Commons, and the International Law Commons

Copyright 2025 by Mugambi Jouet Northwestern Journal of Human Rights

Volume 23, Number 3 (2025)

* Professor, USC Gould School of Law. This research project benefited from feedback received at the following venues: Culp Colloquium organized by Duke and Harvard, Stanford Grey Fellows’ Forum, USC Center for Law, History, and Culture, University of Ottawa Public Law Centre Criminal Law Workshop, and the Constitutional Law Colloquium held by Loyola University Chicago and Florida State University. I am also grateful for the comments of Kerry Abrams, Scott Altman, Francine Banner, Andrew Botterell, Raúl Carrillo, Bernard M. Dickens, Lee Epstein, Benjamin Ewing, Kerri Froc, Nicholas Handler, Lisa Kelly, Daniel Klerman, Stephen Lee, Zina Makar, Amelia Miazad, Shaun Ossei-Owusu, Clare Pastore, Seema Patel, Sylvia Rich, Kent Roach, Serge Serviant, Terry Skolnick, Alexander Tsesis, and Mary Ziegler. Finally, special thanks to Amber Madole and the USC law library for obtaining permissions to feature compelling pictures and artwork

INTRODUCTION

1 Hundreds Protest Outside Toronto U.S. Consulate After Roe v. Wade Is Overturned, CBC NEWS (June 25, 2022, 7:48 PM), [https://perma.cc/9PQ5-AJTT]. See Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

2 Verity Stevenson, Quebecers Protest Roe v. Wade Reversal in Defiance of Anti-Abortion Sentiments, CBC NEWS (June 26, 2022, 3:19 PM), [https://perma.cc/H4MC-6LEE]. See also Virginie Ann, Canadians Take to the Streets to Protest U.S. Abortion Decision, CAN.’S NAT’L OBSERVER (June 27, 2022), [https://perma.cc/PN35-L4GN]; Tahmina Aziz, Overturning of Roe v. Wade Condemned at Vancouver Rally, CTV NEWS (June 26, 2022, 9:25 PM), [https://perma.cc/5NNQ-7G3T]; Jesse Feith, ‘A Dark Day’: Outrage, Planned Protests in Quebec as Roe v. Wade Is Overturned, MONTREAL GAZETTE (June 24, 2022), [https://perma.cc/T4RB-P99J].

3 See Martin Farrer, World Leaders Condemn US Abortion Ruling as ‘Backwards Step’, GUARDIAN (June 24, 2022, 11:58 PM), [https://perma.cc/8JLQ-PMFV]; David M. Herszenhorn, European Leaders Decry US Restriction of Abortion Rights, POLITICO (June 25, 2022, 3:07 PM), [https://perma.cc/H2A2PDGS]; Christina Lu, Roe Reversal Exposes the ‘Ever-Growing Value Gap’ Between U.S. and Allies, FOREIGN POL’Y (July 6, 2022, 4:04 PM), [https://perma.cc/6YX7-95RW]; Sophia Sleigh, Boris Johnson Slams US Abortion Ruling as a ‘Big Step Backwards’, HUFFPOST (U.K.) (June 24, 2022, 4:28 PM), [https://perma.cc/6WCZ-V9X2].

4 This Article defines the modern “Western world” as the United States, Canada, Australia, New Zealand, and European nations, except Russia and states aligned with Russia. Yet the “West” is a polymorphic and malleable concept whose definition has evolved historically for reasons beyond the scope of this Article. See USES OF ‘THE WEST’: SECURITY AND THE POLITICS OF ORDER (Gunther Hellmann & Benjamin Herborth eds., 2017); GERMANY AND ‘THE WEST’: THE HISTORY OF A MODERN CONCEPT (Riccardo Bavaj & Martina Steber eds., 2015).

5 See JAMAL GREENE, HOW RIGHTS WENT WRONG: HOW OUR OBSESSION WITH RIGHTS IS TEARING US APART 114-39 (2021) (analyzing the factors that enabled Germans to find common ground on abortion in contrast to enduring gridlock in America); Tom Ginsburg, American Exceptionalism and the Comparative Constitutional Law of Abortion, in ROE V. DOBBS: THE PAST, PRESENT, AND FUTURE OF A CONSTITUTIONAL RIGHT TO ABORTION 159 (Lee Bollinger & Geoffrey Stone eds., 2024) (exploring American exceptionalism and abortion, including uncompromising social attitudes); Mark Tushnet, Abortion Policy Aimed at Promoting Life as Much as Possible, in id. at 243 (discussing socialdemocratic policies that have fostered consensus on abortion in Europe).

6 See infra notes 225, 346, and accompanying text. 7 See F.L. MORTON, PRO-CHOICE VS. PRO-LIFE: ABORTION AND THE COURTS IN CANADA 13-14

(1992).

8 R. v. Morgentaler, [1988] 1 S.C.R. 30 (Can.). 9 See Mugambi Jouet, Abortion and American Exceptionalism, CRIM. JUST. L. REV. (forthcoming 2025), [https://perma.cc/DL4W-F8EQ] (analyzing the liberalization and decriminalization of abortion in the modern Western world).

10 Roe Abolition Makes U.S. a Global Outlier, FOREIGN POL’Y (June 24, 2022, 2:07 PM), [https://perma.cc/3XHZ-AKU4]. See also Daniel K. Williams, The International Pro-Life Movement, in RESEARCH HANDBOOK ON INTERNATIONAL ABORTION LAW 243 (Mary Ziegler ed., 2023) (surveying the laws of countries that ban abortion).

11 Farrer, supra note 3. 12 Peter Zimonjic, American Women Can Obtain Abortions in Canada if Roe v. Wade Falls,

Minister Says, CBC NEWS (May 3, 2022, 5:52 PM), [https://perma.cc/QDC2-BG5X].

13 Ian Bailey, Politics Briefing: U.S. Supreme Court Ruling Overturning Roe v. Wade a ‘Devastating Setback,’ Trudeau Says, GLOBE & MAIL (June 24, 2022), [https://perma.cc/H86Y-ZQZ9].

14 Id. 15 Id. 16 Marieke Walsh, Conservative MPs, Senators Ordered Not to Comment on Leaked Draft U.S. Supreme Court Decision to Strike Down Abortion Rights, GLOBE & MAIL (May 3, 2022), [https://perma.cc/TV8N-4PSG] (the leadership’s message to the party caucus read: “Conservatives will not be commenting on draft rulings leaked from the Supreme Court of the United States”). See also Ian Bailey, Leslyn Lewis to Skip Third Conservative Leadership Debate, GLOBE & MAIL (July 28, 2022), [https://perma.cc/39JD-Z6JS] (reporting that a Conservative Party candidate declined to participate in a debate that would not discuss abortion and various other topics).

17 See supra note 3. 18 Robert Barnes, Alito Dismisses Foreign Criticism of Supreme Court’s Abortion Ruling, WASH. POST (July 28, 2022, 7:32 PM), [https://perma.cc/98Y4-7SJE]; Margaret Talbot, The Last Word, NEW YORKER, Aug. 28, 2022, at 6-8.

19 This comparative definition of exceptionalism as “exception” should not be confused with the separate definition equating the phrase with the idea that America is “exceptional” in the sense of “outstanding” or “superior.” See generally JACK P. GREENE, THE INTELLECTUAL CONSTRUCTION OF AMERICA: EXCEPTIONALISM AND IDENTITY FROM 1492 TO 1800 4-7 (1993); MUGAMBI JOUET, EXCEPTIONAL AMERICA: WHAT DIVIDES AMERICANS FROM THE WORLD AND FROM EACH OTHER 4, 22-23 (2017); SEYMOUR MARTIN LIPSET, AMERICAN EXCEPTIONALISM: A DOUBLE-EDGED SWORD 18, 26 (1996); Anthony Molho & Gordon S. Wood, Introduction, in IMAGINED HISTORIES: AMERICAN HISTORIANS INTERPRET THE PAST 3, 4 (Molho & Wood eds., 1998).

20 See Jouet, Abortion and American Exceptionalism, supra note 9.

21 See GREENE, HOW RIGHTS WENT WRONG, supra note 5, at 124-32 (discussing the evolution of

German abortion law).

22 See Jouet, Abortion and American Exceptionalism, supra note 9. 23 At the time of writing, full abortion bans were in place in Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia. Several other states had instituted sharp restrictions on abortion. In addition, proposed bans or restrictions were on hold in various jurisdictions amid legal challenges. Allison McCann & Amy Schoenfeld Walker, Tracking Abortion Bans Across the Country, N.Y. TIMES (last updated Apr. 28, 2025, 4:51 PM), [https://perma.cc/5ZA2-26D3].

24 CTR. REPROD. RTS., EUROPEAN LAWS: A COMPARATIVE OVERVIEW 4

(2022), [https://perma.cc/G2C7-2PXY] (listing countries that “retain highly restrictive abortion laws and do not permit abortion on request or on broad social grounds”).

25 See Roe Abolition Makes U.S. a Global Outlier, supra note 10 (describing “a worldwide trend toward greater reproductive freedom for women, not less, which makes the U.S. Supreme Court’s decision—and the United States in general—an outlier”); Rebecca J. Cook & Bernard M. Dickens, Abortion, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 3, 4 (Jan M. Smits et al. eds., 2023) (discussing Dobbs’s deviation from the global expansion of reproductive rights).

26 See ANNE COLLINS, THE BIG EVASION: ABORTION, THE ISSUE THAT WON’T GO AWAY 96, 126-

27, 130 (1985).

27 See MORTON, supra note 7, at 14, 74, 178-81, 224. 28 See GEOFFREY R. STONE, SEX AND THE CONSTITUTION: SEX, RELIGION, AND LAW FROM

AMERICA’S ORIGINS TO THE TWENTY-FIRST CENTURY 408-09, 434-40 (2017).

29 See generally MARY ZIEGLER, ABORTION AND THE LAW IN AMERICA: ROE V. WADE TO THE

PRESENT (2020) [hereinafter ZIEGLER, ABORTION AND THE LAW].

30 The Dobbs majority comprised all three Trump appointees: Amy Coney Barrett, Neil Gorsuch,

and Brett Kavanaugh. See Dobbs v. Jackson Women’s Health Org., (2022).

31 KATE MCKENNA, NO CHOICE: THE 30-YEAR FIGHT FOR ABORTION ON PRINCE EDWARD ISLAND

(2018).

32 SYLVIE HALPERN, MORGENTALER L’OBSTINÉ 32-33, 96-120 (1992); Interview with Henry Morgentaler, in AVORTEMENT. OUI ET NON. 9, 16-18 (Michel Buruiana ed., 1988) [hereinafter Morgentaler Interview].

33 MORTON, supra note 7, at 36-37. 34 Id. 35 Id. See also COLLINS, supra note 26, at 140; HALPERN supra note 32, at 77. 36 See generally Appellate Brief of Defense in R. v. Morgentaler, [1988] (Can.), “Additional Facts Relied on by Respondent,” ¶ 3, filed on Dec. 5, 1986 [hereinafter Supplemental Brief of Defense in Morgentaler (1988)]. I obtained the brief from the Supreme Court of Canada’s archives.

37 Morgentaler Receives Order of Canada in Quebec City, CBC (Oct. 10, 2008, 9:27 AM),

[https://perma.cc/4QQY-87LW] [hereinafter Morgentaler Receives Order of Canada].

38 See generally Daniel Grossman, Kate Grindlay & Bridgit Burns, Public Funding for Abortion

Where Broadly Legal, 94 CONTRACEPTION 453 (2016).

39 See id. at 454-55, 458-59; see also infra note 510 and accompanying paragraphs.

40 See, e.g., JEAN-YVES LE NAOUR & CATHERINE VALENTI, HISTOIRE DE L’AVORTEMENT: XIXE – XXE SIÈCLE (2003) (discussing divides over abortion in French society, especially until it legalized the procedure in the 1970s).

41 See generally NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES: LEGAL POLARIZATION AND THE CREATION OF CULTURE ch. 6 (2010); LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY 137-312 (1992); FELICIA KORNBLUH, A WOMAN’S LIFE IS A HUMAN LIFE: MY MOTHER, OUR NEIGHBOR, AND THE JOURNEY FROM REPRODUCTIVE RIGHTS TO REPRODUCTIVE JUSTICE (2023); LESLIE J. REAGAN, WHEN ABORTION WAS A CRIME: WOMEN, MEDICINE, AND LAW IN THE UNITED STATES, 1867-1973 (2d ed. 2022); RAYMOND TATALOVICH, THE POLITICS OF ABORTION IN THE UNITED STATES AND CANADA: A COMPARATIVE STUDY (Routledge 2d ed. 2015); MARY ZIEGLER, AFTER ROE: THE LOST HISTORY OF THE ABORTION DEBATE (2015) [hereinafter ZIEGLER, AFTER ROE]; MARY ZIEGLER, DOLLARS FOR LIFE: THE ANTI-ABORTION MOVEMENT AND THE FALL OF THE REPUBLICAN ESTABLISHMENT (2022) [hereinafter ZIEGLER, DOLLARS FOR LIFE].

42 For diverse perspectives on Dobbs and its overruling of Roe, consult ROE V. DOBBS, supra note 5; Aziza Ahmed, Feminist Legal Theory and Praxis After Dobbs: Science, Politics, and Expertise, 34 YALE J.L. & FEMINISM 48 (2023); Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 NW. U. L. REV. 433 (2023); Cary Franklin, History and Tradition’s Equality Problem, 133 YALE L.J. FORUM 946 (2024); Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 SUP. CT. REV. 111 (2022); Serena Mayeri, The Critical Role of History After Dobbs, 2 J. AM. CONST. HIST. 171 (2024); Joy Milligan & Bertrall L. Ross II, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, 102 TEX. L. REV. 305 (2023); Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 HARV. L. REV. 728 (2024); Neil S. Siegel, The Wages of Crying Roe: Some Realism About Dobbs v. Jackson Women’s Health Organization, 2 J. AM. CONST. HIST. 101 (2024); Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 YALE L.J.F. 99 (2024); Reva B. Siegel, The Politics of Constitutional Memory, 20 GEO. J.L. & PUB. POL’Y 19 (2022); Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 STAN. L. REV. 1091 (2023); Alexander Tsesis, Aspirational Reliance of the Declaration of Independence: Labor and Women’s Suffrage, in CAMBRIDGE COMPANION TO THE DECLARATION OF INDEPENDENCE (Mark Graber & Michael Zuckert eds., forthcoming 2025); Rebecca E. Zietlow, Abortion, Citizenship, and the Right to Travel, 27 EMP. RTS. & EMP. POL’Y J. 335 (2024); Mary Ziegler, The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition, 133 YALE L.J.F. 161 (2023).

43 All French translations in this Article are my own.

I. THE INTERTWINED HISTORY OF ABORTION IN AMERICA AND CANADA

44 JAMES C. MOHR, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF NATIONAL POLICY,

1800-1900 2-5 (1978).

45 Id. 46 GLANVILLE WILLIAMS, THE SANCTITY OF LIFE AND THE CRIMINAL LAW 152 (1957).

47 Shannon Stettner, A Brief History of Abortion in Canada, in WITHOUT APOLOGY: WRITINGS ON ABORTION IN CANADA 31, 34 (Shannon Stettner ed., 2016). For an overview of prior legislation in Canada, see also id. at 33-34.

48 EPSTEIN & KOBYLKA, supra note 41, at 138-40; KRISTIN LUKER, ABORTION & THE POLITICS OF MOTHERHOOD ch. 2 (1984); MOHR, supra note 44, ch. 1, 8; REAGAN, supra note 41, at 8-14; Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101 TEX. L. REV. 1127, 1184, 1187-88 (2023) [hereinafter Siegel, Memory Games]; Tang, supra note 42, at 1097-99.

49 See generally EPSTEIN & KOBYLKA, supra note 41, at 139-40, 347 n.12; RACHAEL JOHNSTONE, AFTER MORGENTALER: THE POLITICS OF ABORTION IN CANADA 54-55 (2017); LUKER, supra note 48, ch. 2; MORTON, supra note 7, at 18; REAGAN, supra note 41, ch. 3; ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 2-3; Mayeri, supra note 42, at 180-82.

50 EPSTEIN & KOBYLKA, supra note 41, at 139-40; JOHNSTONE, supra note 49, at 54-55; REPORT OF THE COMMITTEE ON THE OPERATION OF THE ABORTION LAW 66 (1977) (Can.) [hereinafter BADGLEY REPORT] (government report named after its chairman Robin Badgley).

51 GOV. CAN., Abortion in Canada [https://perma.cc/Z8L8-ABVM] (last updated Oct. 11, 2024). 52 R. v. Morgentaler, [1988] (Can.). 53 JOHNSTONE, supra note 49, at 55-56; MORTON, supra note 7, ch. 2. 54 See generally Katrina Ackerman, In Defence of Reason: Religion, Science, and the Prince

Edward Island Anti-Abortion Movement, 1969-1988, 31 CAN. BULL. MED. HIST. 117, 120 (2014).

55 PM Defends Abortion Laws, GLOBE AND MAIL, June 16, 1970, at 10. See also Katrina Ackerman & Shannon Stettner, “The Public Is Not Ready for This”: 1969 and the Long Road to Abortion Access, 100 CAN. HIST. REV. 239, 242-43 (2019) (discussing Pierre Trudeau’s position).

56 Christopher Dummitt & Christabelle Sethna, Introduction, in NO PLACE FOR THE STATE: THE ORIGINS AND LEGACIES OF THE 1969 OMNIBUS BILL 3, 3-15 (Dummitt & Sethna eds., 2020). See also Pre-1969: Abortion and Birth Control, U. TORONTO LIBR., [https://perma.cc/63VX-UMPH] (last visited Jan. 30, 2025).

57 Dummitt & Sethna, supra note 56, at 4-6. 58 George Bain, A Conversation with the Prime Minister (II), GLOBE & MAIL, May 22, 1968, at 6. 59 Timeline: Same-Sex rights in Canada, CBC NEWS (Jan. 12, 2012), [https://perma.cc/YN8J-

2FU9].

60 Id. See also Dummitt & Sethna, supra note 56, at 5-6 (discussing the reaction to Trudeau’s

remarks on homosexuality).

61 See MORTON, supra note 7, at 22-28 (describing the 1969 omnibus reform bill and ensuing debates); NO PLACE FOR THE STATE, supra note 56 (exploring the omnibus bill’s impact, limitations, and legacy); Robert Leckey, ‘Repugnant’: Homosexuality and Criminal Family Law, 70 U. TORONTO L.J. 225 (2020) (analyzing the reservations or opposition to gay rights that various legislators expressed in this period).

62 Canada Criminal Code, R.S.C. 1970, c. C-34 § 251 (held unconstitutional in R. v. Morgentaler,

[1988] (Can. .

63 See BADGLEY REPORT, supra note 50, at 17, 19, 21, 29-31.

64 Id. 65 Id. 66 Id. See also HALPERN, supra note 32; JOHNSTONE, supra note 49, at 56-57; MCKENNA, supra

note 31, at 13; Joanna N. Erdman, An Abortion Law Preformed, 35 J.L. & SOC. POL’Y 44 (2021).

67 See MORTON, supra note 7, at 27-28. 68 REAGAN, supra note 41, at 173-81. 69 ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 3; Lori Brown, J. Shoshanna Ehrlich & Colleen MacQuarrie, Subverting the Constitution: Anti-Abortion Policies and Activism in the United States and Canada, in ABORTION: HISTORY, POLITICS, AND REPRODUCTIVE JUSTICE AFTER MORGENTALER 239, 240-41 (Shannon Stettner, Kristin Burnett & Travis Hay eds., 2017).

70 Doe v. Bolton, 410 U.S. 179 (1973). 71 Id. at 194-99. 72 Id. See also KORNBLUH supra note 41, at 1-3, 42, 51, 116, 149 (discussing the American

historical context regarding therapeutic abortion committees, including their arbitrary decisions).

73 R. v. Morgentaler, [1988] (Can.).

74 EPSTEIN & KOBYLKA, supra note 41, at 143-46. 75 Id. at 142-43; ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 3-4. 76 EPSTEIN & KOBYLKA, supra note 41, at 187. 77 Id. at 154, 187. 78 Id. at 151-52. 79 Id. at 151-53, 188. 80 Id. at 155-60. 81 Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). See also EPSTEIN & KOBYLKA, supra note 41, at 155-60, 186-87 (discussing the social context surrounding Griswold and Eisenstadt).

82 See, e.g., CHARLES LOCKHART, THE ROOTS OF AMERICAN EXCEPTIONALISM: INSTITUTIONS, CULTURE, AND POLICIES ix (2d ed. 2012) (discussing the unfamiliarity of university-educated Americans with Canadian society and government).

83 See generally Canada-U.S. Perspectives: ‘Sunny Ways’ Versus Gloomy Days, ANGUS REID INST. (Mar. 9, 2016), [https://perma.cc/42UU-DFR2] (discussing Canadians’ views of American society and government).

84 See generally Steve Scherer, Canadians See Danger at Home from U.S. Political Strife – Poll, REUTERS (Feb. 8, 2022), [https://perma.cc/BP2Z-95BJ] (describing Canadians’ concern about the

No hospital as a public institution wishes to be seen as an abortion centre or to be known to provide exemplary care for abortion patients. Unlike other aspects of hospital work which are often matters of public pride, the social profile of the abortion procedure in hospitals was kept as low as possible.85

evolution of American democracy); see also KATHERINE MORRISON, CANADIANS ARE NOT AMERICANS: MYTHS AND LITERARY TRADITIONS (2003).

85 BADGLEY REPORT, supra note 50, at 23. 86 See, e.g., ZIEGLER, AFTER ROE, supra note 41, at 169-75; Brown, Ehrlich & MacQuarrie, supra

note 69, at 243.

87 See, e.g., CAHN & CARBONE, supra note 41, at 95-96; MARTHA PAYNTER, ABORTION TO

ABOLITION: REPRODUCTIVE HEALTH AND JUSTICE IN CANADA 11 (2022).

88 See, e.g., CAHN & CARBONE, supra note 41, at 95-96; Morgentaler Interview, supra note 32, at

42.

89 See, e.g., ZIEGLER, AFTER ROE, supra note 41, at 121-26. 90 See, e.g., EPSTEIN & KOBYLKA, supra note 41, at 137, 182, 237, 265; MORTON, supra note 7, at

266-67.

91 See, e.g., COLLINS, supra note 26, at xiii; MORTON, supra note 7, at 66, 204; Kelly Gordon & Paul Saurette, The Future of Pro-Choice Discourse in Canada, in ABORTION 265, supra note 69, at 267.

92 See, e.g., SARA DUBOW, OURSELVES UNBORN: A HISTORY OF THE FETUS IN MODERN AMERICA 153 (2011); JOHNSTONE, supra note 49, at 31; ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 136, 140, 149; Gordon & Saurette, supra note 91, at 272.

93 See, e.g., HALPERN, supra note 32, at 183; JOHNSTONE, supra note 49, at 31-32; Leslie Cannold, Understanding and Responding to Anti-Choice Women-Centred Strategies, 10 REPROD. HEALTH MATTERS 171 (2002).

94 JOHNSTONE, supra note 49, at 29, 31-32; ZIEGLER, AFTER ROE, supra note 41, at 169-74;

Cannold, supra note 93; Gordon & Saurette, supra note 91, at 268-69, 288.

95 See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN (New York, 2006); ROBERT J.

SHARPE & KENT ROACH, BRIAN DICKSON: A JUDGE’S JOURNEY 10-25 (2003).

96 Ronald Reagan, Abortion and the Conscience of the Nation, 9 HUM. LIFE REV. 7, 7 (1983). 97 R. v. Morgentaler, [1988] , ¶ 182 (Can.) (McIntyre, J., dissenting). 98 SHARPE & ROACH, supra note 95, at 22. Dickson’s ambivalence on abortion is discussed in

Section I.E.

99 See infra Sections II, III. 100 See generally PATRICK MALCOLMSON & RICHARD MYERS, THE CANADIAN REGIME: AN

INTRODUCTION TO PARLIAMENTARY GOVERNMENT IN CANADA 58-64, 146-49 (5th ed. 2012).

101 Id. 102 Id. at 146-49. 103 Id. at 49-57. 104 See generally JOHN W. KINGDON, AMERICA THE UNUSUAL (1999). 105 See infra Sections I.E., II, and III. 106 See generally DEP’T JUST. CAN., The Criminal Code of Canada, [https://perma.cc/9ZZS-9CFC] (last visited Nov. 18, 2022). See, e.g., R. v. Morgentaler, [1993] 3 S.C.R. 463 (Can.) (holding that Nova Scotia improperly enacted a de facto criminal statute in an attempt to limit abortion access).

107 See supra note 51 and accompanying text. 108 See generally CONG. RSCH. SERV., CONGRESSIONAL AUTHORITY TO REGULATE ABORTION 2 (last updated July 8, 2022), [https://perma.cc/7N3Q-P7GV] (“Should Congress choose to legislate on abortion-related matters, its action must be appropriate and plainly adapted to the exercise of an enumerated power and in accordance with the foregoing federalism limitations, as well as other constitutional constraints on the exercise of its legislative powers.”).

109 R. v. Morgentaler, [1988] (Can.). 110 See infra note 336 and accompanying text. 111 See JOHNSTONE, supra note 49, at 3. 112 See, e.g., infra note 339 and accompanying paragraphs (discussing claims about fetal

personhood and fathers’ rights in both countries).

113 See generally Ackerman & Stettner, supra note 55, at 250-51 (observing that reproductive justice has played a less significant role in Canadian scholarship though it now garners growing attention).

114 JOHNSTONE, supra note 49, at 27, 38-41; Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade, 134 HARV. L. REV. 2025, 2055-59 (2021). See also KORNBLUH supra note 41 (historical account of the reproductive justice movement in New York State in the second half of the twentieth century, including efforts against forced sterilization); Khiara M. Bridges, Deploying Death, 68 UCLA L. REV. 1510 (2022) (analyzing the racial dimensions of a post-Roe America).

115 See, e.g., PAYNTER, supra note 87, at 7-8 (recounting the creation of reproductive justice workshops in Canadian prisons). See also JOHNSTONE, supra note 49, at 25, 27 (discussing reproductive justice in Canada).

116 MORTON, supra note 7, at 13. Lucas was an influential figure in the U.S. abortion rights movement. Until the last moment a disagreement subsisted as to whether he or Sarah Weddington would orally argue Roe. Weddington prevailed and delivered the winning argument. DAVID GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 795-99 (1st ed. 1994).

117 MORTON, supra note 7, at 13. 118 Id. 119 Morton wrote that this call occurred on January 21, 1973, although Roe is dated January 22,

1973. Id.

120 See COLLINS, supra note 26, at 96. 121 Id. 122 See generally The Honourable Justice Mark R. MacGuigan Memorial Scholarship, U. PRINCE

EDWARD ISLAND, [https://perma.cc/V3TJ-3MTY] (last visited Nov. 7, 2022).

123 MARK R. MACGUIGAN, ABORTION, CONSCIENCE AND DEMOCRACY 2-3 (1994).

124 R. v. Morgentaler, [1988] 3 S.C.R. 463, ¶ 238 (Can.) (reasons of Wilson, J.). 125 See generally Supplemental Brief of Defense in Morgentaler (1988), supra note 36, ¶ 3. 126 Id. ¶ 2. 127 Id. 128 BADGLEY REPORT, supra note 50, at 19, 21, 29-31. See also supra note 243 and accompanying

text.

129 See infra Section III.A. 130 BADGLEY REPORT, supra note 50, at 68. 131 Id. 132 Id. at 69. 133 See generally REAGAN, supra note 41, ch. 3 (recounting how physicians and midwives historically were targets of U.S. abortion prosecutions); Cary Franklin & Reva B. Siegel, Equality Emerges as a Ground for Abortion Rights In and After Dobbs, in ROE V. DOBBS 22, supra note 5, at 39 (discussing “the general exemption from punishment of pregnant women who choose abortion,” despite efforts to prosecute them during the campaign to criminalize abortion in nineteenth-century America); see also Mary Ziegler, Everyone Agrees Women Who Have Abortions Shouldn’t Be Penalized. Or Do They?, WASH. POST (Apr. 1, 2016), [https://perma.cc/TY4M-DDYL] (discussing history of prosecutorial focus alongside modern debate).

134 HALPERN, supra note 32, at 76-77. 135 Id. 136 Id. at 77, 85-86. 137 Id. at 85, 90-93. 138 See generally id. at 77; COLLINS, supra note 26, at 140; MORTON, supra note 7, at 36-37. 139 Griswold v. Connecticut, 381 U.S. 479, 508 (1965) (Black, J., dissenting) (“[T]hese defendants admittedly engaged with others in a planned course of conduct to help people violate the Connecticut law.”); Eisenstadt v. Baird, 405 U.S. 438, 440 (1972) (defendant “exhibit[ed] contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University” and “[gave] a young woman a package of Emko vaginal foam at the close of his address”).

140 MORTON, supra note 7, at 36. 141 Id. 142 Id. In this period, Morgentaler also published a medical article about the advantages of his abortion procedure. See Henry Morgentaler, Report on 5641 Outpatient Abortions by Vacuum Suction Curettage, 109 CAN. MED. ASS’N J. 1202, 1202 (1973) (“This article reports the author’s experience resulting from 5641 ambulatory abortions done in his clinic with the vacuum suction technique under local anesthesia.”).

143 MORTON, supra note 7, at 37. 144 Id. See also COLLINS, supra note 26, at 140; HALPERN, supra note 32, at 77.

Picture 1: A protester confronts Henry Morgentaler at a Winnipeg hearing on July 15, 1983. Credit: Jim Wiley / Winnipeg Free Press.

145 MORTON, supra note 7, at 37. 146 Id. at 34-36. 147 Id. at 35. 148 Id. 149 Id. at 35-36. 150 Id.

151 Id. See also COLLINS, supra note 26, at 140. 152 MORTON, supra note 7, at 13. 153 Id. See also CATHERINE DUNPHY, MORGENTALER: A DIFFICULT HERO 106 (1996) (discussing

how Roe heartened Morgentaler).

154 HALPERN, supra note 32, at 76. 155 Id. 156 Id. (my translation). 157 Id. at 136; MORTON, supra note 7, at 56.

158 See, e.g., LE NAOUR & VALENTI, supra note 40 (documenting clashes over abortion in French

history, particularly until its legalization in the 1970s).

159 See supra note 3. 160 HALPERN, supra note 32, at 32, 109-10, 117-19; Morgentaler Interview, supra note 32, at 16-

18.

161 HALPERN, supra note 32, at 108-11; Morgentaler Interview, supra note 32, at 13-14, 16, 35. Morgentaler’s father was murdered by the Gestapo in 1939, following the Nazi invasion of Poland, whereas his mother was murdered at Auschwitz in 1944. Jeremy Laurance, Obituary: Henry Morgentaler, 382 LANCET 22 (2013).

162 HALPERN, supra note 32, at 110; Morgentaler Interview, supra note 32, at 14. 163 HALPERN, supra note 32, at 118-20; Morgentaler Interview, supra note 32, at 116-18. 164 HALPERN, supra note 32, at 59. 165 Morgentaler Interview, supra note 32, at 19-21. 166 Id. at 21 (my translation). 167 Id.

168 Id. 169 Id. 170 Id. at 18 (my translation). See also HALPERN, supra note 32, at 55. 171 HALPERN, supra note 32, at 61-62. 172 Id. at 172-73, 178-86. 173 See, e.g., MCKENNA, supra note 31, at 29 (quoting Roseanne MacDonald, Abortion Debate Causes Much Soul-Searching Among PEI Legislators, GUARDIAN (Charlottetown), Apr. 9, 1988); see also Sadie Roberts, Waves of Change on Prince Edward Island: Opening Up the Dialogue on Abortion Access, in WITHOUT APOLOGY 163, supra note 47, at 164 (“My abortion was not difficult, but my pregnancy was . . . . Dr. Morgentaler, who performed my abortion, became one of my heroes, and reproductive justice one of my passions.”).

174 Morgentaler Interview, supra note 32, at 44 (my translation). 175 Id. at 40-41. 176 HALPERN, supra note 32, at 90-93. 177 Id. at 72, 76, 169. 178 See, e.g., Roger Neustadter, “Killing Babies:” The Use of Image and Metaphor in the Right-toLife Movement, 4 MICH. SOCIO. REV. 76 (1990) (describing how the U.S. pro-life movement chronically compares abortion to Nazism); Laurence Coustal, Il y a un peu plus de 40 ans, le rude combat de Simone Veil en faveur de l’IVG, PUB. SÉNAT (June 30, 2017, 11:28 AM), [https://perma.cc

/B5N6-YNBG] (discussing claims that Simone Veil, a Holocaust survivor, was emulating Nazi atrocities when leading efforts to legalize abortion in France as Health Minister in 1974).

179 HALPERN, supra note 32, at 81-82, 101-02. 180 Id. at 131-32. 181 DEMOCRACY ON TRIAL: THE MORGENTALER AFFAIR (Nat’l Film Bd. Can. 1984),

[https://perma.cc/X29J-MZKT].

182 See generally MARTIN PAQUET & STEPHANE SAVARD, BRÈVE HISTOIRE DE LA RÉVOLUTION TRANQUILLE (2021). When Canada adopted its abortion law in 1969, francophone Quebeckers were the most outspoken members of Parliament in denouncing abortion. MORTON, supra note 7, at 25. On the Quiet Revolution, see HALPERN, supra note 32, at 33, 54; JOHNSTONE, supra note 49, at 96-98, 153; MORTON, supra note 7, at 86.

183 See HALPERN, supra note 32, at 65. 184 Id. at 191; Morgentaler Interview, supra note 32, at 20. 185 See infra note 263 and accompanying text. 186 HALPERN, supra note 32, at 84. Quebec law allowed Morgentaler to have an anglophone jury, but he insisted on a francophone one which would be more representative of the public opinion that he sought to embody. Morgentaler also personally knew that abortion access was worse among francophones and felt this would increase his chances of acquittal. Id. at 130-31.

187 See infra note 564 and accompanying paragraphs. 188 Robert D. McFadden, Norma McCorvey, ‘Roe’ in Roe v. Wade, Is Dead at 69, N.Y. TIMES

(Feb. 18, 2017), [https://perma.cc/RD52-PPFP].

189 Id. 190 See, e.g., EPSTEIN & KOBYLKA, supra note 41; ZIEGLER, AFTER ROE, supra note 41. Milan Vuitch was another significant figure in U.S. history as an abortion doctor, advocate, and criminal defendant, see KORNBLUH supra note 41, at 84, albeit not as influential as Morgentaler in Canada.

191 LE NAOUR & VALENTI, supra note 40, ch. 7. 192 See SIMONE VEIL, A LIFE (Tasmin Black trans., 2018) (2007). 193 See, e.g., Stettner, supra note 47, at 50 (discussing the influence of petitions, protests, and public education campaigns led by Canadian women in this period, such as Judy Rebick, Carolyn Egan, and Norma Scarborough).

194 Id.

Picture 2: Henry Morgentaler in Toronto on September 24, 1986. Credit: Bill Becker / The Canadian Press.

195 See infra note 268 and accompanying paragraphs. 196 See, e.g., KENT ROACH, CRIMINAL LAW (8th ed. 2022) (leading casebook comprising the

Morgentaler abortion cases).

[This Court] has not been called upon to decide, or even to enter, the loud and continuous public debate on abortion which has been going on in this country between, at the two extremes, (i) those who would have abortion regarded in law as an act purely personal and private, of concern only to the woman and her physician, in which the state has no legitimate right to interfere, and (ii) those who speak in terms or moral absolutes and, for religious or other reasons, regard an induced abortion and destruction of a foetus, viable or not, as destruction of a human life and tantamount to murder. The values we must accept for the purposes of this appeal are those expressed by Parliament which

197 See supra Section I.C. 198 See infra note 290 and accompanying text. 199 MORTON, supra note 7, at 170. 200 Morgentaler v. The Queen, [1976] 1 S.C.R. 616, 638 (Can.). 201 Roe v. Wade, (1973). 202 Morgentaler v. The Queen, 1 S.C.R. at 629. 203 Roe, 410 U.S. at 164.

holds the view that the desire of a woman to be relieved of her pregnancy is not, of itself, justification for performing an abortion.204

204 Morgentaler v. The Queen, 1 S.C.R. at 671 (reasons of Dickson, J.) (emphasis added). 205 For insight into the Canadian Justices’ deliberations, see SHARPE & ROACH, supra note 95, at 6-

25.

206 Bernard M. Dickens, The Morgentaler Case: Criminal Process and Abortion Law, 14 OSGOODE

HALL L.J. 229, 237, 243 (1976).

207 Morgentaler v. The Queen, 1 S.C.R. at 655 (Laskin, C.J., dissenting). 208 Id. at 629. 209 Id. 210 Id. at 682 (reasons of Dickson, J.). 211 Id. at 682-85. 212 Id. at 682-83. 213 See supra note 113 and accompanying paragraph (discussing modern reproductive justice in

America and Canada).

214 The necessity defense’s logic is not that the defendant was forced to commit a crime by someone else, as in a duress defense, but that they were forced to break the law by the circumstances. For instance, the necessity defense may prevent someone from being convicted for stealing a car if it was done to suddenly escape from a wildfire.

215 Morgentaler v. The Queen, 1 S.C.R. at 678 (reasons of Dickson, J.). 216 Id. at 685. 217 SHARPE & ROACH, supra note 95, at 9-10. 218 Id. 219 MORTON, supra note 7, at 82. 220 Id. See also Dickens, supra note 206, at 255-60.

221 See infra note 274 and accompanying text. 222 BADGLEY REPORT, supra note 50, at 19, 26, 81-82. 223 Id. at 80-82. 224 Id. 225 W.D. Thomas, The Badgley Report on the Abortion Law, 116 CAN. MED. ASS’N J. 966, 966

(1977).

226 BADGLEY REPORT, supra note 50, at 35. 227 HALPERN, supra note 32, at 129. 228 KORNBLUH supra note 41, at 83-84, 303. 229 Id. See also infra note 237 and accompanying paragraph (discussing the shift in New York law).

230 Dickens, supra note 206, at 273. 231 Id. 232 The case against the doctor, Yvan Machabee, never went forward as the prosecution centered on

Morgentaler. See DUNPHY, supra note 153, at 108-09.

233 Id. at 108. 234 Id. 235 Jeanne Dansereau, Colloque sur la planification des naissances: Famine, pilule, avortement,

encyclique, LA PRESSE, Apr. 17, 1969, at 26.

236 Id. 237 See Alan F. Guttmacher, The Genesis of Liberalized Abortion in New York: A Personal Insight,

23 CASE W. RSRV. L. REV. 756 (1972).

238 Gilles Provost, Entretien avec le Dr Guttmacher: L’avortement est-il recommandable?, LE

DEVOIR, Oct. 28, 1970, at 11 (my translation).

239 Id. 240 Id. See also HALPERN, supra note 32, at 24 (discussing Guttmacher’s interview). 241 See, e.g., Solange Chalvin, Chez les femmes américaines le réveil d’une conscience sociale longtemps endormie, LE DEVOIR, Aug. 29, 1970, at 13; 100,000 candidates à l’avortement à New York!, LE DEVOIR, July 2, 1970, at 7; Avortement, pas de changement au Canada, LE DEVOIR, Apr. 17, 1970, at 13; L’avortement sur demande est permis dans l’état de New York, LE DEVOIR, Apr. 14, 1970, at 11.

242 See KORNBLUH, supra note 41 (recounting the history of New York’s abortion reform and the activists involved in this social change); Felicia Kornbluh, Before “the Supreme Court Bail[ed] Us Out”: Feminist Claims for Abortion Rights and the Constitutional History of Roe v. Wade, 2 J. AM. CONST. HIST. 275 (2024) (analyzing the intersection of New York’s 1970 abortion reform and subsequent constitutional change). Legislative reform in New York ended a test case, Abramowicz v. Lefkowitz, that Nancy Stearns had led to challenge the constitutionality of abortion bans. KORNBLUH, supra note 41, at 120-31, 137-43. While Abramowicz could have become the salient constitutional case on abortion, it never reached the Supreme Court, unlike Roe. See also An Abortion Rights Champion of the 2022), https://www.nytimes.com/2022/07/01/podcasts/the-daily/abortion-rights-nancy-stearnsroe.html?showTranscript=1 (Nancy Stearns interview about Abramowicz).

Roe, N.Y. TIMES

Life Before

and After

1970s

(July

on

1,

243 See generally BADGLEY REPORT, supra note 50, at 26. 244 Id. at 22. 245 Id. 246 Id. at 17, 19, 21, 29-32. On problems with therapeutic abortion committees, see also HALPERN,

supra note 32, at 20-21; JOHNSTONE, supra note 49, at 60; Thomas, supra note 225, at 966.

247 BADGLEY REPORT, supra note 50, at 31. 248 Id. at 8-9. 249 See id. at 50 (discussing hospitals’ reticence to cooperate with the inquiry).

250 Id. at 8. 251 Id. at 37. 252 JOHNSTONE, supra note 49, at 34. 253 Id. 254 HALPERN, supra note 32, at 127 (my translation). 255 MORTON, supra note 7, at 19. On the United Church’s role, see also KEVIN N. FLATT, AFTER

EVANGELICALISM: THE SIXTIES AND THE UNITED CHURCH OF CANADA 18, 202 (2013).

256 MORTON, supra note 7, at 22. 257 See id. at 24. 258 Id. See also Shannon Stettner & Bruce Douville, ‘In the Image and Likeness of God’: Christianity and Public Opinion on Abortion in The Globe and Mail During the 1960s, 50 J. CAN. STUD. 179 (2016) (analyzing religious divides over abortion in this period).

259 Morgentaler Interview, supra note 32, at 30. 260 HALPERN, supra note 32, at 85.

261 Id. at 27. 262 Id. at 26. 263 Id. at 27-28; MORTON, supra note 7, at 54-55, 83-87. While substantive criminal law is a matter of federal jurisdiction in Canada, provincial governments bear the primary responsibility for prosecuting cases and enforcing the law. See DEP’T JUST. CAN., supra note 106.

264 See supra note 182 and accompanying text. 265 MORTON, supra note 7, at 170. 266 Id. 267 Id. 268 Id. at 170-71. An obituary captured how Manning forever remained associated with his successful defense of Morgentaler. Lisa Fitterman, Legal Giant Morris Manning Defended Henry Morgentaler, GLOBE & MAIL (July 6, 2021), [https://perma.cc/E23N-FZVN].

269 MORTON, supra note 7, at 171. American medical experts were also among the sources that the defense cited on appeal, such as Dr. Philip Stubblefield, an Associate Professor of Obstetrics and Gynecology at Harvard Medical School, and Dr. David Grimes, a physician at the Center for Disease Control in Atlanta. Supplemental Brief of Defense in Morgentaler (1988), supra note 36, ¶ 7.

270 MORTON, supra note 7, at 171. 271 Id. 272 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule

B to the Canada Act, 1982, c 11 (U.K.) at Section 7 [hereinafter Canadian Charter, Section 7].

273 MORTON, supra note 7, at 14, 80. Morton further describes this constitutional transformation as

a step toward “American-style judicial activism by the Canadian Supreme Court.” Id. at 14.

274 Id. at 14, 80. 275 Id. 276 COLLINS, supra note 26, at 126-27, 130. 277 MORTON, supra note 7, at 178. 278 Id. at 178-79; COLLINS, supra note 26, at 126-27, 168. 279 COLLINS, supra note 26, at 168-69; MORTON, supra note 7, at 179-81.

280 COLLINS, supra note 26, at 169. See Lochner v. New York, 198 U.S. 45 (1905) (reasoning that a statute violated the freedom of contract in imposing maximum work hours to protect labor rights and public health).

281 COLLINS, supra note 26, at 167-68. See also JOHN T. NOONAN, JR., A PRIVATE CHOICE: ABORTION IN AMERICA IN THE SEVENTIES (1979); Sam Roberts, John Noonan, Federal Judge Who Served for Three Decades, Dies at 90, N.Y. TIMES (Apr. 21, 2017), [https://perma.cc/B9GB-9DKD].

282 COLLINS, supra note 26, at 167-68. 283 Brief for Appellee, Roe v. Wade, (1973) (No. 70-18), 1971 WL 134281, at *9 (“The state has a legitimate, if not compelling, interest in prohibiting abortion except under limited circumstances.”).

284 COLLINS, supra note 26, at 131. Ottawa had dispatched Pennington, an experienced federal

prosecutor, to assist the Ontario prosecutors in this critical case. MORTON, supra note 7, at 169-71.

285 Brief for Appellee, Roe v. Wade, supra note 283, at 30. 286 COLLINS, supra note 26, at 131. 287 MORTON, supra note 7, at 182. 288 Id. at 192-94. 289 Id. at 206. 290 R. v. Morgentaler, [1988] (Can.).

Picture 3: Following the acquittal in Toronto on November 8, 1984, Henry Morgentaler and defense counsel Morris Manning exult. Co-defendant Robert Scott is to the left. Credit: Jeff Wasserman.

291 Id. ¶ 22 (reasons of Dickson, C.J.). Dickson distanced himself from claims about privacy, based on Roe and other American sources, advanced by Morgentaler’s defense counsel Morris Manning: “Basing his argument largely on American constitutional theories and authorities, Mr. Manning submitted that the right to ‘life, liberty and security of the person’ [under Section 7 of the Canadian Charter] is a wide-ranging right to control one’s own life and to promote one’s individual autonomy. The right would therefore include a right to privacy and a right to make unfettered decisions about one’s own life. In my opinion, it is neither necessary nor wise in this appeal to explore the broadest implications of [Section 7] as counsel would wish us to do.” Id. ¶¶ 8-9.

292 Morgentaler v. The Queen, [1976] 1 S.C.R. 616 (Can.). See supra note 202 and accompanying

text.

293 SHARPE & ROACH, supra note 95, at 9-10, 13-14. 294 Id. 295 Id. at 6. 296 Reagan’s book was based on a 1983 article. See supra note 96. 297 SHARPE & ROACH, supra note 95, at 16-17. 298 Id. 299 Id. 300 See infra note 337 and accompanying text. 301 MORTON, supra note 7, at 224. 302 Id.

303 R. v. Morgentaler, [1988] (Can.). 304 Id. ¶ 230 (reasons of Wilson, J.). 305 City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983). 306 Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747 (1986). 307 Loving v. Virginia, 388 U.S. 1 (1967). 308 Griswold v. Connecticut, 381 U.S. 479 (1965). 309 R. v. Morgentaler, [1988] , ¶ 236 (Can.) (reasons of Wilson, J.) (citing LAURENCE

H. TRIBE, AMERICAN CONSTITUTIONAL LAW 924-25 (1978 .

310 In short, the framework provided that, in the first trimester, a woman could freely choose abortion in consultation with her doctor. In the second trimester, the state could reasonably regulate abortion. In the third trimester, marking viability, the state could ban abortion. Roe v. Wade, , 164-65 (1973).

311 Morgentaler, , ¶ 135 (reasons of Beetz & Estey, JJ.) (citing City of Akron v. Akron

Ctr. for Reprod. Health, 462 U.S. 416, 460-61 (1983) (O’Connor, J., dissenting .

312 See, e.g., THE SUPREME COURT OF CANADA DECISION ON ABORTION (Shelagh Day & Stan

Persky eds., 1988).

II. HOW THE CANADIAN PRO-CHOICE MOVEMENT WON BEFORE ROE FELL

313 MORTON, supra note 7, at 19. 314 See, e.g., SHARPE & ROACH, supra note 95, at 21 (observing that Justice Dickson did not wish to match Roe in recognizing “a right to privacy or complete freedom of choice in the first trimester of pregnancy”).

315 Aurum Awards 2019: Megan Leslie (LLB ‘04), SCHULICH SCH. L. (May 27, 2019),

[https://perma.cc/PM2A-UFTN].

316 Megan Leslie, Foreword to MCKENNA, supra note 31, at ix. 317 Id. at ix-x. 318 Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion). 319 Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). 320 See Mugambi Jouet, The Day Canada Said No to the Death Penalty in the United States:

Innocence, Dignity, and the Evolution of Abolitionism, 55 U.B.C. L. REV. 439 (2022).

321 Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, ¶ 43 (Can.). 322 R. v. Morgentaler, [1988] (Can.). 323 See, e.g., EPSTEIN & KOBYLKA, supra note 41, passim (comparing the legal reform movements on capital punishment and abortion in the United States); CAROL S. STEIKER & JORDAN M. STEIKER, COURTING DEATH: THE SUPREME COURT AND CAPITAL PUNISHMENT 223-26 (2016) (same).

324 Leslie, supra note 316, at x-xi. 325 Janine Brodie, Choice and No Choice in the House, in THE POLITICS OF ABORTION 57, 62, 89

(Janine Brodie, Shelley A.M. Gavigan & Jane Jenson eds., 1992).

326 See MCKENNA, supra note 31. 327 See infra Section III. 328 See id.

Picture 4: On July 27, 1989, 10,000 persons marched in Montreal to support Chantal Daigle’s right to abortion and against her ex-boyfriend’s injunction to have her carry the pregnancy to term. The banner translates as “Neither Pope, nor judge, nor doctor, nor partner . . . the WOMEN must decide!” Credit: Richard Godin / La Presse.

329 Timothy Appleby, Botched Abortion Attempt Kills Toronto Woman, 20, GLOBE & MAIL, June

13, 1990, at A10.

330 Rudy Platiel, Coalition Says Abortion Bill Must Go in Wake of Death, GLOBE & MAIL, June 14,

1990, at A12. 331 Id. 332 Brodie, supra note 325, at 110, 115.

333 Id., at 96-116. 334 Id. 335 Id. at 110. 336 Id. at 115. 337 JOHNSTONE, supra note 49, at 71-72. 338 Tremblay v. Daigle, [1989] 2 S.C.R. 530 (Can.); Borowski v. Canada (Attorney General),

[1989] 1 S.C.R. 342 (Can.).

339 See, e.g., ZIEGLER, ABORTION AND THE LAW, supra note 29, at 95-98. 340 Id. 341 Id. 342 JOHNSTONE, supra note 49, at 65; MORTON, supra note 7, at 275-77. See also COLLINS, supra

note 26, at 166 (discussing prior Canadian abortion cases involving fathers’ rights claims).

343 For archived television broadcasts about Daigle’s case, see Archives: Chantale Daigle et le

droit à l’avortement, RADIO-CAN. (Aug. 7, 2019), [https://perma.cc/KET5-GHNH].

I do not wish to have Jean-Guy Tremblay’s child;

I do not wish to have a child at the present time in light of my age, my social situation as a single person and my moral values as I want to provide for a child in a serene stable family environment in which there is no violence;

I do not want any contact whatsoever with Jean-Guy Tremblay;

I believe that to carry this pregnancy to term would cause me irreparable psychological and moral harm in the future;

In my view, Jean-Guy Tremblay has no reason or interest in the present case except in order to maintain his hold on me.345

344 Tremblay c. Daigle, [1989] R.J.Q. 1980, paras. 20-22, 66, 69-70, 85-89, 93-98, 108-10 (Can. Qc. Sup. Ct.) (trial court issuing injunction against Daigle’s abortion by recognizing fetus as a person under Quebec Charter of Human Rights and Freedoms); Tremblay v. Daigle, 23 Q.A.C. 241 (Can. Qc. C.A. 1989) (Quebec high court upholding injunction in 3-2 vote). Another fathers’ rights case involving a similar injunction against Barbara Dodd in Toronto initially garnered media attention too, yet eventually became less significant than Daigle’s case since that injunction was soon invalidated. Dodd had her abortion at Morgentaler’s clinic but declared a week later that she regretted ending her pregnancy, appearing with a pro-life t-shirt at a press conference. See MORTON, supra note 7, at 275-76. 345 Tremblay v. Daigle, 23 Q.A.C. 241, para. 77 (Can. Qc. C.A. 1989) (reasons of LeBel, J.)

(quoting undated affidavit).

346 Archives: Chantale Daigle et le droit à l’avortement, supra note 343. 347 Id. 348 Id. (my translation). On Daigle’s case, see also JOHNSTONE, supra note 49, at 65-67; MORTON,

supra note 7, at 277-89.

349 ZIEGLER, ABORTION AND THE LAW, supra note 29, at 96 (discussing In the Matter of the Unborn Child [H], Findings of Fact, Conclusions of Law, and Order, Vigo Circuit Court, 1988 Term (No. 84C018804 JP 185 .

350 Id.

Picture 5: On August 1, 1989, anti-abortion protesters at the Supreme Court of Canada organized a “baby shower” with gifts for the child they wanted Chantal Daigle to have. Credit: Chuck Mitchell / The Canadian Press.

351 Ian Brussières, Chantal Daigle veut la paix!, LE SOLEIL (July 27, 2009, 5 :00 AM),

[https://perma.cc/9W3C-3QW9].

352 Guillaume Picard, Le cas de Chantale Daigle adapté au petit écran et voici la distribution

complète, 7 JOURS (Sept. 15, 2022), [https://perma.cc/6XZ6-4RK5].

Picture 6: Outside the Supreme Court of Canada on August 1, 1989, pro-life activists follow Daniel Bédard, Chantal Daigle’s lawyer, trying to hand him gifts for the baby they hoped she would be forced to have. Credit: Frank Gunn / The Canadian Press.

353 Tremblay v. Daigle, [1989] 2 S.C.R. 530 (Can.). 354 Id. at 570-71. 355 Id. at 572. 356 Id.

357 Id. (citing inter alia Doe v. Doe, 314 N.E.2d 128 (Mass. 1974); Jones v. Smith, 278 So. 2d 339

(Fla. Dist. Ct. App. 1973 .

358 See generally Michele Goodwin, If Embryos and Fetuses Have Rights, 11 L. & ETHICS HUM. RTS. 189, 193-99 (2017); Michelle Goldberg, When a Miscarriage Is Manslaughter, N.Y. TIMES (Oct. 19, 2021), [https://perma.cc/KE43-SSGT].

359 ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 211-12. 360 MORTON, supra note 7, at 14, 116-18. 361 Id. 362 Id. 363 Id. at 14; COLLINS, supra note 26, at 1-4. 364 MORTON, supra note 7, at 66. 365 Id. at 270-71. 366 Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Can.). 367 MORTON, supra note 7, at 272.

368 For instance, subsequent decisions by the Supreme Court of Canada would again reject claims about fetal personhood. See R. v. Sullivan, [1991] 1 S.C.R. 489, 502 (Can.) (holding that “a foetus is not a ‘human being’ for the purposes of the [Criminal Code of Canada]”); Winnipeg Child & Fam. Servs. (Nw Area) v. G. (D.F.), [1997] 3 S.C.R. 925, 937 (Can.) (holding that “the law of Canada does not recognize the unborn child as a legal or juridical person,” which is “a general proposition, applicable to all aspects of the law, including the law of torts”).

369 See McCann & Walker, supra note 23. 370 JOHNSTONE, supra note 49, at 131-32. 371 Id. 372 Id. at 133, 151; HALPERN, supra note 32, at 82, 190; MORTON, supra note 7, at 205, 274-75. An insider’s account of Canadian anti-abortion activism disclosed its ideology and strategies, including accosting women on their way to clinics to “counsel” them into foregoing the abortion through shame or pressure. Natalie Lochwin, Blinded by the Right: My Past as an Anti-Abortion Activist, in WITHOUT APOLOGY 169, supra note 47, at 171.

373 JOHNSTONE, supra note 49, at 134. 374 Id. at 144; PAYNTER, ABORTION TO ABOLITION, supra note 87, at 2-3. 375 See ZIEGLER, AFTER ROE, supra note 41, at xvi, 222. To some observers, the 1992 bombing of the Morgentaler Clinic evoked the “Americanization of Canadian society.” MORTON, supra note 7, at 316.

376 In Ontario, Louise Summerhill founded Birthright. Robert Pearson of Hawaii also established a foundation to develop crisis pregnancy centers throughout the United States. KARISSA HAUGEBERG, WOMEN AGAINST ABORTION: INSIDE THE LARGEST MORAL REFORM MOVEMENT OF THE TWENTIETH

CENTURY 17-18 (2017); Roger Keene, The Woman Who Tells Girls in Trouble: ‘Have Your Baby’, MACLEANS, May 1, 1970, at 62.

377 On Operation Rescue, the radical anti-abortion group created in the United States, see infra note

528 and accompanying paragraphs.

378 DUNPHY, supra note 153, at 333-35. 379 JOHNSTONE, supra note 49, at 154. 380 See e.g., Stettner, supra note 47, at 54, 56 (discussing the financial support of U.S. anti-abortion groups to Canadian ones); Lochwin, supra note 372, at 173 (“A big part of being a pro-life youth involved socializing with others in the movement and attending various conferences across Ontario and the United States.”).

381 Gordon & Saurette, supra note 91, at 280. 382 See id. at 279-80. 383 Id. 384 See Jacqueline Thomsen, Standing Ovations for Conservative U.S. Justices at Federalist Society

Event, REUTERS (Nov. 11, 2022, 10:16 AM), [https://perma.cc/K4UX-7E96].

385 See JOHNSTONE, supra note 49, ch. 3. British Columbia initially was among the provinces that kept opposing abortion following Morgentaler. MORTON, supra note 7, at 274. See also Ackerman & Stettner, supra note 55, at 247-48 (summarizing the pushback against abortion rights in various provinces).

386 See infra Section III. 387 JOHNSTONE, supra note 49, ch. 3; PAYNTER, ABORTION TO ABOLITION, supra note 87, at 67-77. 388 JOHNSTONE, supra note 49, at 107-10, 115-18. 389 See infra note 510 and accompanying paragraphs. 390 See JOHNSTONE, supra note 49, ch. 3; PAYNTER, ABORTION TO ABOLITION, supra note 87, at 67-77; Katrina Ackerman, The Dark Well-Kept Secret: Abortion Experiences in the Maritime Provinces, 1969-1988, in ABORTION 104, supra note 69, at 104 .

391 See supra note 106. 392 JOHNSTONE, supra note 49, at 107-08. 393 Id. at 108-11. 394 Id. See also Brown, Ehrlich & MacQuarrie, supra note 69, at 246. 395 JOHNSTONE, supra note 49, at 86-88, 98, 102-06, 115-16.

396 Id. 397 See generally How Long Are Waiting Times Across Countries?, OECD, [https://perma.cc/237G-

MB37] (last visited Nov. 9, 2023).

398 See generally PAYNTER, ABORTION TO ABOLITION, supra note 87, at 1; Gordon & Saurette,

supra note 91, at 279.

399 See generally Martha Paynter, Abortion Services Have Improved in Atlantic Canada,

SALTWIRE (July 21, 2022, 11:33 AM), [https://perma.cc/55SP-E7M2].

400 Government of Canada Strengthens Access to Abortion Services, HEALTH CAN. (May 11,

2022), [https://perma.cc/5AGY-QAJJ].

401 Maura Forrest, Trudeau Government Funds Abortion Services Amid Fallout from Roe v. Wade

Disclosure, POLITICO (May 11, 2022, 7:08 PM), [https://perma.cc/6SU6-HUT3].

402 Morgentaler Receives Order of Canada, supra note 37.

403 MORTON, supra note 7, at 267. 404 Claudia Baskerville, Abortion Equals Holocaust: MD, OTTAWA J., Apr. 26, 1976, at 28. 405 Interview of Bertrand Blanchet, in AVORTEMENT. OUI ET NON. 61, supra note 32, at 70-71. 406 Id. at 63 (my translation). 407 Id. at 71. 408 Id. at 81. 409 Id. at 82. 410 Id. at 78. 411 Id. 412 Id. 413 Id. at 120.

414 See infra Section III. 415 Population Estimates Quarterly, STATS. CAN., [https://perma.cc/2GKE-ZRP2] (last visited Aug.

22, 2023).

416 Land and Freshwater Area, by Province and Territory, STATS. CAN. [https://perma.cc/4VMR-

NY87] (last visited Aug. 22, 2023).

417 State Area Measurements and

Internal Point Coordinates, U.S. CENSUS

(2010),

[https://perma.cc/4HKW-8N4K].

418 Annual Estimates of the Resident Population of the United States Regions, States, District of Columbia, and Puerto Rico: April 1, 2020 to July 1, 2021, U.S. CENSUS (2021), [https://perma.cc /PW5W-CFJP].

419 See, e.g., MCKENNA, supra note 31, at 1-3, 5, 18, 40-41. 420 Id.; Roberts, supra note 173, at 164-65.

421 See supra notes 62, 243, and accompanying paragraphs. 422 MCKENNA, supra note 31, at 21. 423 See, e.g., Ackerman, supra note 54, at 126 (describing how activists were concerned about “a slippery slope and did not want to create any avenues for doctors to perform abortions in the Charlottetown hospital,” including on the ground of necessity to an endangered mother).

424 See generally MCKENNA, supra note 31, at 15-34. 425 Id. at 8; Ackerman, supra note 54, at 119-20, 123-29. 426 MCKENNA, supra note 31, at 9. 427 Id. This date especially concerns surgical abortion, as abortion via medication occurred in

Prince Edward Island beforehand. See infra note 450 and accompanying text.

428 MCKENNA, supra note 31, at 13 (citing statistics compiled by the Island Right to Life

organization).

429 Id. at 9. 430 Id. at 1, 6, 31, 38-39. 431 Id. at 31 (quoting Write Letters, Island Bishop Argues, GUARDIAN (Charlottetown), Mar. 10,

1988).

432 Id. at 32.

433 The legislative record indicates that Resolution no. 17 on abortion was proposed on March 29, 1988 and adopted on April 7, 1988, following a vote and debate over amendments. J. ASSEMBLY PRINCE EDWARD ISLAND 90, 117-18 (1988), [https://perma.cc/ZG6S-DF6G].

434 See supra note 106 and accompanying text. 435 See generally Ackerman, supra note 54, at 119-20, 123-29. 436 MCKENNA, supra note 31, at 16-17. 437 Id. 438 Id. 439 Id. See also PAYNTER, ABORTION TO ABOLITION, supra note 87, at 74; Brown, Ehrlich &

MacQuarrie, supra note 69, at 252.

440 MCKENNA, supra note 31, at 20-24, 26-27. See also PAYNTER, ABORTION TO ABOLITION, supra

note 87, at 74; Brown, Ehrlich & MacQuarrie, supra note 69, at 252-53.

441 Ackerman, supra note 54, at 122. 442 Id. See also infra note 490 and accompanying text (discussing The Silent Scream’s impact in

America).

443 Ackerman, supra note 54, at 123-24.

444 MCKENNA, supra note 31, at 47; Brown, Ehrlich & MacQuarrie, supra note 69, at 254. 445 MCKENNA, supra note 31, at 47–51, 99. 446 Id. See also PAYNTER, ABORTION TO ABOLITION, supra note 87, at 75; Brown, Ehrlich &

MacQuarrie, supra note 69, at 254-57.

447 See COLLEEN MACQUARRIE, JO-ANN MACDONALD & CATHRINE CHAMBERS, TRIALS AND TRAILS OF ACCESSING ABORTION IN PEI: REPORTING ON THE IMPACT OF PEI’S ABORTION POLICIES ON WOMEN (Jan. 2014), [https://perma.cc/CB6Q-W79A] (study documenting obstacles to abortion for island residents).

448 Id. at 35-36. 449 In 2015, the Canadian government approved the drug for medical abortion and it became commercially available in 2017. Sarah Munro ET AL., Pharmacist Dispensing of the Abortion Pill in Canada: Diffusion of Innovation Meets Integrated Knowledge Translation, 16 IMPLEMENTATION SCI. 1, 2 (2021).

450 GOV. CAN., supra note 51 (“In Canada, the medication package is called Mifegymiso and

includes Mifepristone and Misoprostol pills.”). 451 Munro ET AL., supra note 449, at 2. 452 See Sheila Dunn & Rebecca Cook, Medical Abortion in Canada: Behind the Times, 186 CMAJ 13, 13 (2014) (“Unfortunately, Canadian women who want a medical abortion (assuming they can find a provider) must resort to a more cumbersome method that uses the cytotoxic drug methotrexate, followed 5–7 days later by misoprostol.”).

453 MACQUARRIE, MACDONALD & CHAMBERS, supra note 447, at 23.

454 Id. 455 Id. 456 Id. 457 Id. at 23-26. See also Kate McKenna, Harrowing Experiences of Medical Abortions on Canada’s Prince Edward Island Renews Criticism, VICE (May 26, 2015), [https://perma.cc/H3338CCE] (woman used prescribed abortion medication, suffered complications, and faced emergencyroom doctor who refused to examine her, causing significant delays in receiving care and terminating pregnancy).

458 MCKENNA, supra note 31, passim. 459 Id. 460 Id. 461 Id. at 5; Brown, Ehrlich & MacQuarrie, supra note 69, at 254. 462 MCKENNA, supra note 31, at 60-98. See also JOHNSTONE, supra note 49, at 159-60 (discussing

contemporary reproductive rights activism in Prince Edward Island). 463 PAYNTER, ABORTION TO ABOLITION, supra note 87, at 75. 464 The conference organized by Colleen MacQuarrie, Tracy Penny Light, and Shannon Stettner was titled “Abortion: The Unfinished Revolution” and occurred at the University of Prince Edward Island on August 7-8, 2014. See Abortion: The Unfinished Revolution, [https://perma.cc/K9N7-DLDC] (last visited Jan. 20, 2025).

465 See supra note 447 and accompanying paragraphs. 466 Colleen MacQuarrie, “We Can Get There Faster If We All Move Together: The Birth and

Evolution of a Reproductive Justice Activist, in WITHOUT APOLOGY 157, supra note 47, at 159-62.

467 MCKENNA, supra note 31, at 60-98. 468 Id. at 98-99. 469 For an interview of McMillan and Nijhawan, see Jennifer Brown, Living the Dream, CANADIAN

LAWYER (Jan. 5, 2016), [https://perma.cc/4RSZ-Q749].

470 MCKENNA, supra note 31, at 99-102. 471 Id. at 106-09. 472 Id. at 114. 473 Id. 474 Id. 475 See GOVERNMENT OF PRINCE EDWARD ISLAND, Historic Premiers Gallery, [https://perma.cc /RC5Q-PBBB] (last visited Aug. 22, 2023); see also supra note 428 and accompanying paragraph (discussing the province’s decades-long anti-abortion policy).

III. FROM DOBBS TO AMERICAN EXCEPTIONALISM

476 Kevin Campbell, PC Leadership Candidate Argues His Plan to Restrict Abortion Funding,

CBC (Jan. 30, 2019), [https://perma.cc/5NW4-KEYJ].

477 Id. (emphasis added). 478 Id. 479 See generally PAYNTER, ABORTION TO ABOLITION, supra note 87; Gordon & Saurette, supra

note 91, at 278-79.

480 EPSTEIN & KOBYLKA, supra note 41, at 267 (quoting Justice Fears for Roe Ruling, N.Y. TIMES,

Sept. 14, 1988, at A24).

481 Reagan, supra note 96, at 8. 482 See ZIEGLER, AFTER ROE, supra note 41, at xii-xiv, 227-29. 483 See Jouet, Abortion and American Exceptionalism, supra note 9.

484 See supra note 19 and accompanying text. 485 For competing theories on America’s polarization, see generally AMERICAN GRIDLOCK: THE SOURCES, CHARACTER, AND IMPACT OF POLITICAL POLARIZATION (James Thurber & Antoine Yoshinaka eds., 2015); SOLUTIONS TO POLARIZATION IN AMERICA (Nathaniel Persily ed., 2015); ALAN ABRAMOWITZ, THE GREAT ALIGNMENT: RACE, PARTY TRANSFORMATION, AND THE RISE OF DONALD TRUMP (2018); MORRIS P. FIORINA, SAMUEL J. ABRAMS & JEREMY C. POPE, CULTURE WAR? THE MYTH OF A POLARIZED AMERICA (3d ed. 2010); LILLIANA MASON, UNCIVIL AGREEMENT: HOW POLITICS BECAME OUR IDENTITY (2018); NOLAN MCCARTY, POLARIZATION (2019); Shanto Iyengar ET AL., The Origins and Consequences of Affective Polarization in the United States, 22 ANN. REV. POL. SCI. 129 (2019); Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV. 273 (2011).

486 See JOUET, supra note 19 (exploring the interrelationship between polarization and American

exceptionalism).

487 See Dobbs v. Jackson Women’s Health Org., (2022); Planned Parenthood of Se.

Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion); Roe v. Wade, (1973).

Picture 7: Barbara Kruger, Untitled (Your body is a battleground), 1989. Photographic silkscreen on vinyl. Courtesy of the artist, the Broad Art Foundation, and Sprüth Magers.

488 Barbara Kruger, Untitled (Your body is a battleground), THE BROAD (June 30, 1989),

[https://perma.cc/ENP6-5ENZ].

489 See generally ZIEGLER, AFTER ROE, supra note 41, at 213.

490 DUBOW, supra note 92, at 153-54, 159-60. 491 Id. at 159-60. 492 Id. 493 Id. at 164. 494 EPSTEIN & KOBYLKA, supra note 41, at 192. 495 Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Can.). See supra note 360 and

accompanying text.

496 Appellate procedures before the Supreme Courts of Canada and the United States are relatively similar. Appellants do not call witnesses or marshal evidence like trial counsel would. Even if a video is in the record, showing it during an appellate hearing would fall outside of standard practice.

497 MORTON, supra note 7, at 267. 498 Id. at 269. 499 MARSHALL MCLUHAN, UNDERSTANDING MEDIA ch. 1 (1964). 500 STONE, supra note 28, at 393.

501 Id. at 394. 502 Id. 503 Id. at 395. 504 EPSTEIN & KOBYLKA, supra note 41, at 31. 505 Id. at 31, 272. 506 Id. at 178, 239. 507 Id. at 221-22. 508 ZIEGLER, AFTER ROE, supra note 41, at 227-29. A vast literature has debated Roe and its impact on American democracy. See, e.g., ROE V. DOBBS, supra note 5; WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S MOST CONTROVERSIAL DECISION (Jack Balkin ed., 2005).

509 ZIEGLER, AFTER ROE, supra note 41, passim.

510 Harris v. McRae, 448 U.S. 297, 302-03 (1980). 511 EPSTEIN & KOBYLKA, supra note 41, at 210, 231. 512 Id. at 211. 513 Id. at 211-20, 244-45. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion); Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747 (1986); Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976).

514 Harris, 448 U.S. at 298. 515 See generally Webster v. Reprod. Health Servs., 492 U.S. 490, 492 (1989) (plurality opinion)

(holding that Missouri “need not commit any resources to performing abortions”). 516 Harris, 448 U.S. at 314-18; Maher v. Roe, 432 U.S. 464, 473-74 (1977). 517 That being noted, neither Roe nor the mainstream abortion debate addressed questions that the reproductive justice movement would later bring to the fore. Framing abortion simply as a “right” or “choice” could ignore impoverished and minority women who disproportionately lacked resources to access abortion in practice. See supra note 114 and accompanying text. Further, bans on abortion had long coexisted with coercive sterilization practices, especially against underprivileged women and those deemed irresponsible. Some women were even pressured or misled into sterilization on the very day when they received an abortion. These abuses led certain activists to be wary of doctors. “By contrast, Harry Blackmun wrote the Roe opinion as though the interests of doctors and their patients were virtually identical,” as Felicia Kornbluh writes in a book that explores this history in depth. KORNBLUH supra note 41, at 22.

518 See supra note 38 and accompanying text. 519 Gordon & Saurette, supra note 91, at 279.

520 ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 47-48, 81. 521 Id. 522 David Shribman, Campaign ‘88—Holy War: Rift Widens in GOP Between Traditionalist and

Evangelical Wings, WALL ST. J., Aug. 16, 1988, at 1.

523 Id. 524 Id. See ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 67 (discussing the 1988 Republican

National Convention).

525 EPSTEIN & KOBYLKA, supra note 41, at 232, 235. 526 Id. at 235; ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 47. 527 The Senate vote for O’Connor was 99-0. Fred Barbash, O’Connor Confirmed as First Woman

on Supreme Court, WASH. POST (Sept. 22, 1981), [https://perma.cc/6M7S-TJNZ].

528 See ZIEGLER, ABORTION AND THE LAW, supra note 29, at 98-100. 529 United States v. Terry, No. 92CR.MISC #1PG.46 (RJW), 1995 WL 46679 (S.D.N.Y. Feb. 7,

1995).

530 Kevin Sack, Protestor Thrusts Fetus at a Surprised Clinton, N.Y. TIMES, July 15, 1992, at A11.

531 ROB SCHENCK, COSTLY GRACE: AN EVANGELICAL MINISTER’S REDISCOVERY OF FAITH, HOPE, AND LOVE (2018) (memoir recounting reverend’s crusade to influence government as a leader of the Religious Right until his paradigm shift).

532 Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court

Breach, N.Y. TIMES (Nov. 19, 2022), [https://perma.cc/E8PH-TCKA]. 533 ZIEGLER, DOLLARS FOR LIFE, supra note 41, at 68-69, 72. 534 Id. at 72. 535 Since 1977, anti-abortion activists had reportedly committed “11 murders, 42 bombings, 196 arsons, 491 assaults, and thousands of incidents of criminal activities directed at patients, providers, and volunteers” as of 2021. National Abortion Federation Releases 2021 Violence & Disruption Report, NAT’L ABORTION FED’N (June 24, 2022), [https://perma.cc/2CKD-584D].

536 See, e.g., EPSTEIN & KOBYLKA, supra note 41, at 273 (describing newspaper advertisements of

American Life League).

537 Webster v. Reprod. Health Servs., 492 U.S. 490, 492 (1989) (plurality opinion). 538 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 876 (1992) (plurality opinion). See also

note 310 (describing the trimester framework).

539 See, e.g., EPSTEIN & KOBYLKA, supra note 41, at 254 (discussing claims that Roe’s trimester

framework was “unworkable”).

540 Casey, 505 U.S. at 833. 541 EPSTEIN & KOBYLKA, supra note 41, at 236, 294. 542 Steve Alumbaugh & C.K. Rowland, The Links Between Platform-Based Appointment Criteria and Trial Judges’ Abortion Judgments, 74 JUDICATURE 153, 162 (1990). See also Jack M. Balkin, Abortion, Partisan Entrenchment, and the Republican Party, in ROE V. DOBBS 81, supra note 5, at 81100 (exploring the circumstances that led the conservative movement to gain profound influence in the federal judiciary since the Reagan era).

543 More State Abortion Restrictions Were Enacted in 2011–2013 Than in the Entire Previous

Decade, GUTTMACHER INST. (Jan. 2, 2014), [https://perma.cc/PND2-4PC5].

544 Brown, Ehrlich & MacQuarrie, supra note 69, at 247. 545 See STONE, supra note 28, at 408-09, 434-40. 546 See supra Section II. 547 579 U.S. 582 (2016). 548 Id. at 590-91. 549 Id. at 612.

550 Id. at 613-14. 551 Id. at 620. 552 Id. at 618. 553 Id. at 627. 554 See Dobbs v. Jackson Women’s Health Org., (2022). 555 Legal Woes for Mississippi’s Only Abortion Clinic, USA TODAY (Jan. 11, 2013), [https://perma.cc/RXJ7-956B]. In 1992, Mississippi reportedly had eight abortion facilities. By 2014, it had two abortion facilities and one clinic. See Jessica Arons, The Last Clinics Standing, ACLU, [https://perma.cc/5R2M-5VVV] (last visited Nov. 3, 2022); see also Brown, Ehrlich & MacQuarrie, supra note 69, at 247.

556 Oral Argument at 31:21, Dobbs v. Jackson Women’s Health Org., (2022) (No. 19-

1392), [https://perma.cc/54KK-ND4G] [hereinafter Dobbs Oral Arguments].

557 Id. 558 Mugambi Jouet, A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus,

and the Normative Challenge to Capital Punishment, 49 AM. J. CRIM. L. 119, 164 (2022).

559 See id. at 124, 126-27, 162-63, 168; Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) (finding the death penalty unconstitutional); Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion) (reauthorizing the death penalty); see also supra note 318 and accompanying text (discussing the abolition of capital punishment in Canada in 1976).

560 A group of researchers found that the Affordable Care Act “is the most challenged statute in American history” and that “[t]he breadth of the more than 2,000 legal challenges has been staggering.” Abbe R. Gluck, Mark Regan & Erica Turret, The Affordable Care Act’s Litigation Decade, 108 GEO. L.J. 1471, 1472-73 (2020). High-profile cases that reached the U.S. Supreme Court are only a fraction of the endless challenges before state and federal judges, besides maneuvers and infighting within legislatures. See generally id.

561 JOUET, supra note 19, at 66-67, 157-62. 562 See Jouet, Abortion and American Exceptionalism, supra note 9 (exploring the interplay of

mobilization on abortion and the polarization of modern America).

563 See supra note 500 and accompanying text. 564 See generally MARC J. HETHERINGTON & JONATHAN D. WEILER, AUTHORITARIANISM & POLARIZATION IN AMERICAN POLITICS 79 (2009); AMANDA HOLLIS-BRUSKY & JOSHUA C. WILSON, SEPARATE BUT FAITHFUL: THE CHRISTIAN RIGHT’S RADICAL STRUGGLE TO TRANSFORM LAW AND LEGAL CULTURE ch. 2 (2020); GEORGE M. MARSDEN, UNDERSTANDING FUNDAMENTALISM AND EVANGELICALISM 76-79, 106-08 (1991); STEPHEN PROTHERO, RELIGIOUS LITERACY: WHAT EVERY AMERICAN NEEDS TO KNOW—AND DOESN’T 144 (2007); STONE, supra note 28, at 403-06; ZIEGLER, DOLLARS FOR LIFE, supra note 41, passim.

565 Dobbs Oral Arguments, supra note 556, at 26:35.

566 Id. at 31:21. But see ZIEGLER, ABORTION AND THE LAW, supra note 29 (analyzing how the

positions and rhetoric of the pro-choice and pro-life movements evolved in Roe’s aftermath).

567 See supra Section I.B. 568 See Jouet, Abortion and American Exceptionalism, supra note 9. 569 Among other evidence, a comprehensive survey concluded that a solid majority of Americans support relatively liberal access to abortion: “About six-in-ten (63%) say abortion should be legal in all or most cases. This share has grown 4 percentage points since 2021 – the year prior to the 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe.” PEW RSCH. CTR., BROAD PUBLIC SUPPORT FOR ABORTION PERSISTS 2 YEARS AFTER DOBBS 3 (2024). See also GALLUP, Abortion, [https://perma.cc/Q7SG-FA6K] (last visited Aug. 7, 2024) (indicating that, as of 2024, 54 percent of Americans are “pro-choice” whereas 41 percent are “pro-life”); Hannah Knowles, Emily Guskin & Scott Clement, Americans Dismayed at End of Roe Are Less Certain They Will Vote, Poll Finds, WASH. POST (July 29, 2022), [https://perma.cc/9FCC-N68J] (indicating that nearly two-thirds of Americans opposed Dobbs’s overruling of Roe).

570 See also Ginsburg, supra note 5, at 264 (“In a number of other countries, abortion politics have

been intense but episodic, and once liberalization has occurred, the issue has been settled.”).

571 See Jouet, Abortion and American Exceptionalism, supra note 9. 572 See generally id.; PEW RSCH. CTR., BEING CHRISTIAN IN WESTERN EUROPE 47-48, 95-96, 98, 107, 122 (2018); Louis Cornelissen, Religiosity in Canada and Its Evolution from 1985 to 2019, STAT. CAN.: INSIGHTS ON CAN. SOC’Y, Oct. 2021, at 1, 5-8.

The Dobbs majority signed on to an opinion in which decisions and laws written by men were presented as America’s history and traditions, without a single woman’s voice represented, and which claimed those traditions were sufficient to justify stripping women today of a half-century of constitutional

573 Dobbs v. Jackson Women’s Health Org., , 250 (2022). 574 Id. On scholarly criticism of Dobbs’s historical analysis, see the sources cited above at 42, as well as JACK M. BALKIN, MEMORY AND AUTHORITY: THE USES OF HISTORY IN CONSTITUTIONAL INTERPRETATION 202-06 (2024); Deborah Dinner, Originalism and the Misogynist Distortion of History in Dobbs, L. & HIST. REV. (June 14 2022), [https://perma.cc/7NGX-6E57]; Sara McDougall, Mireille Pardon & Karl Shoemaker, “Abortion Was a Crime”? Three Medievalists Respond to “English Cases Dating All the Way Back to the 13th Century Corroborate the Treatises’ Statements That Abortion Was a Crime.”, L. & HIST. REV. (June 14, 2022), [https://perma.cc/V5LL-Q2ST]; History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the AHA and the OAH, AM. HIST. ASS’N (July 2, 2022), [https://perma.cc/EX9D-QH86].

575 See also supra note 44 and accompanying text. 576 See generally supra note 42. 577 Id. 578 BALKIN, supra note 574, at 36, 58-59, 77-82 (exploring the distinctive attraction of originalism in America from a comparative angle); Jamal Greene, On the Origins of Originalism, 88 TEX. L. REV. 1, 18-61 (2009) (discussing the absence of originalism in other Western democracies).

rights. This is not an account of history that is “conceptually quite separate from the preferences of the judge himself.”579

579 Siegel, Memory Games, supra note 48, at 1193 (quoting Antonin Scalia, Originalism: The

Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989 .

580 Dobbs, 597 U.S. at 231-32. 581 See generally supra note 42 (sources offering diverse perspectives on Roe and Dobbs). 582 Dobbs, 597 U.S. at 359 (Breyer, J., Sotomayor, J., and Kagan, J., dissenting). 583 Ellie Silverman, Outside Kavanaugh’s Home, a Neighbor Rallies for Abortion Rights, WASH.

POST (May 7, 2022, 10:00 AM), [https://perma.cc/FRU9-XCUX].

584 See generally Theresa Man Ling Lee, Rethinking the Personal and the Political: Feminist

Activism and Civic Engagement, 22 HYPATIA 163 (2007).

585 See Kate Scanlon, Donald Trump Attacks Pro-Life Critics After Video Arguing Abortion Must Be Left to the States, AM. JESUIT REV. (Apr. 10, 2024), [https://perma.cc/Z7YL-SXBM] (discussing Trump’s evolving position and statements about the anti-abortion movement being an electoral liability); Michael Scherer & Josh Dawsey, GOP Delegates Adopt New Platform that Mirrors Trump on a Host of Issues, WASH. POST, July 9, 2024, at A9 (indicating that the 2024 Republican platform rejected the pro-life movement’s call for “a constitutional amendment to give embryos or fetuses legal rights”).

586 Michelle L. Price & Peter Smith, Donald Trump Tells a Group That Calls for Banning All Abortions to Stand Up for ‘Innocent Life’, AP (June 10, 2024, 12:58 PM), [https://perma.cc/J6Q35QC4]. See also Natalie Allison & Megan Messerly, Anti-Abortion Groups Rally Behind Trump Despite Their Disappointment, POLITICO (Apr. 8, 2024, 8:33 AM), [https://perma.cc/Y7XN-N7HW] (noting that leading anti-abortion groups reiterated their support for Trump, despite his refusal to endorse a nationwide ban).

587 Read Trump Abortion Statement, THE HILL (Apr. 8, 2024, 11:11 AM), [https://perma.cc/6CDX-

VYAW].

588 Id. 589 Id. 590 Id. 591 See GALLUP, supra note 569 (poll asking “Would you like to see the Supreme Court overturn [the] Roe v. Wade decision concerning abortion, or not?”); see also supra note 569 and accompanying text (discussing additional polling data).

592 See supra note 3. 593 Farrer, supra note 3. 594 Speaker’s Manuscript – Literature Prize 2022: Annie Ernaux (Oct. 2022), [https://perma.cc

/TT67-PZH8].

595 ANNIE ERNAUX, HAPPENING (Tanya Leslie trans., Seven Stories Press 1st ed. 2001).

596 See Jouet, Abortion and American Exceptionalism, supra note 9, at 5. 597 Id. 598 Id. See, e.g., Timothy Bella, Doctor in 10-Year-Old’s Abortion Case Takes Legal Step Against Indiana AG, WASH. POST (July 19, 2022, 6:26 PM), [https://perma.cc/HTW2-CBY8]; Timothy Bella, Woman Says She Carried Dead Fetus for 2 Weeks After Texas Abortion Ban, WASH. POST (July 20, 2022, 4:16 PM), [https://perma.cc/Y7DM-7NAG]; Ariana Eunjung Cha & Emily Wax-Thibodeaux, Abortion Foes Push to Narrow ‘Life of Mother’ Exceptions, WASH. POST (May 13, 2022, 7:08 PM), [https://perma.cc/GX7D-UBWT]; Elizabeth Chuck, Post-Roe, Exceptions to State Abortion Bans Won’t Be Easy to Acquire, NBC (June 24, 2022, 1:24 PM), [https://perma.cc/T5JD-F3BL]; Jan Hoffman, The New Abortion Bans: Almost No Exceptions for Rape, Incest or Health, N.Y. TIMES (June 9, 2022), [https://perma.cc/8ZER-YT8W]; Maggie Koerth & Amelia Thomson-DeVeaux, Even Exceptions to Abortion Bans Pit a Mother’s Life Against Doctors’ Fears, FIVETHIRTYEIGHT (June 30, 2022, 6:00 AM), [https://perma.cc/EUY4-NLSZ].

599 For example, an organization led by then-Senate Minority Leader Mitch McConnell circulated a memo “argu[ing] that Republicans can’t just call themselves ‘pro-life’ anymore or say the Supreme Court pushed the issue to the states, because of public opinion shifts since last year. The memo also says that any candidate who does not support exceptions for rape, incest and the life of the mother will be vulnerable.” Michael Scherer, Divisions Over Abortion Roil 2024 GOP Presidential Field, WASH. POST, Oct. 8, 2023, at A4.

600 See supra note 598. 601 See generally Silvia De Zordo, Giulia Zanini, Joanna Mishtal, Camille Garnsey, Ann-Katherin Ziegler & Caitlin Gerdts, Gestational Age Limits for Abortion and Cross-Border Reproductive Care in Europe: A Mixed-Methods Study, 128 BEST PRAC. & RSCH. CLINICAL OBSTETRICS & GYNAECOLOGY 838 (2020) (studying obstacles that gestational limits pose to abortion access); Lucía Berro Pizzarossa, Tamara Hervey & Anniek de Ruijter, Abortion Law in Europe: The Promise and Pitfalls of Human Rights and Transnational Trade Law in the Face of Criminalization with Exceptions, in RESEARCH HANDBOOK ON INTERNATIONAL ABORTION LAW 374, supra note 10 (analyzing limitations to abortion access in countries with ostensibly liberal policies); Payal K. Shah and Jihan Jacob, Beyond Abortion Decriminalization: Human Rights Perspectives on the Role of Law in Creating Enabling Environments for Abortion Access, in RESEARCH HANDBOOK ON INTERNATIONAL ABORTION LAW 343, supra note 10 (addressing shortcomings in fulfilling human rights surrounding abortion); Ronli Sifris & Suzanne

Belton, Australia: Abortion and Human Rights, 19 HEALTH & HUM. RTS. 209 (2017) (exploring obstacles to abortion in Australia).

602 Illustratively, a comparative report indicated that “almost all European countries allow abortion on request or on broad social grounds, at least in the first trimester of pregnancy, and almost all countries also ensure that abortion is legal throughout pregnancy when necessary to protect the health or life of a pregnant individual. A very small minority maintain highly restrictive laws prohibiting abortion in almost all circumstances.” CTR. REPROD. RTS., supra note 24, at 1. See also Roe Abolition Makes U.S. a Global Outlier, supra note 10 (discussing the liberalization of abortion in modern Western democracies and various other regions of the world).

603 See Kelly Gordon & Rachael Johnstone, Abortion Anarchy? The Case for Abortion Decriminalization, 34 SOC. & LEGAL STUD. 168, 168 (2024) (“For most of the last 35 years, Canada has stood alone as a global exception to the criminalization of abortion.”); Abortion Decriminalization, CTR. REPROD. RTS (last visited Aug. 10, 2024), [https://perma.cc/Q35T-X99A] (last visited Aug. 10, 2024) (“Canada is the only country that has taken this crucial step.”); but see infra note 605 (discussing decriminalization in New Zealand).

604 See supra note 337 and accompanying text. 605 Abortion Legislation Act 2020 (N.Z.). A study exploring New Zealand’s reform explained: “Abortion is no longer a crime. Instead, it is regulated under general health law, which adopts a gestational model. For pregnancies under 20 weeks’ gestation, abortion does not attract specific legal restrictions. In the case of pregnancies over 20 weeks’ gestation, a statutory test applies. For many, reform of the restrictive framework, first established over four decades ago, was well overdue. Conversely, critics have described the new legislation as not only overly permissive, but the ‘world’s most extreme abortion law.’” Jeanne M. Snelling, Beyond Criminalisation: Abortion Law Reform in Aotearoa New Zealand, 30 MED. L. REV. 216, 217 (2022) (internal citation omitted).

606 See generally Pizzarossa, Hervey & de Ruijter, supra note 601, at 377. 607 For instance, a post-Dobbs poll found that 56 percent of Canadians believe that abortion should be permitted whenever a woman chooses, up 13 points from a 2010 poll. Another 33 percent think that abortion should be permitted in certain circumstances. In Wake of Roe v Wade, Canadians Becoming Firmer in Their Conviction for a Women’s Right to Choose, IPSOS (July 29, 2022), [https://perma.cc /3ZBB-8HQM].

608 FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 197

(2003).

609 See generally HETHERINGTON & WEILER, supra note 564, at 22-24 (discussing the concept of

salience).

610 See McCann & Walker, supra note 23. 611 See id. 612 Ivette Gomez ET AL., 10 Things to Know About Abortion Access Since the Dobbs Decision, KFF

(June 20, 2024), [https://perma.cc/7GPU-B46H].

613 Id. 614 Id. 615 See Kavitha Surana, Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable., PRO PUBLICA (Sept. 16, 2024), [https://perma.cc/J62P-5DF4]; Kavitha Surana, Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed at Home and Died, PRO PUBLICA (Sept. 18, 2024), [https://perma.cc/FYL7-DJ4Z].

616 See generally Michelle Oberman, What Will and Won’t Happen When Abortion Is Banned, 9 J. L. & BIOSCIENCES 1 (2022). Long before Dobbs, many experts and members of civil society had

CONCLUSION

observed that efforts to sharply restrict access to abortion would not necessarily stop abortion but lead to death, injury, and otherwise burdensome practices. See, e.g., Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 SUP. CT. REV. 277, 317-28 (2020) (discussing public debate over the toll that Louisiana restrictions would have on destitute and minority women).

617 Andrew Mayeda & Althia Raj, Harper Vows Not to Reopen Abortion Debate as Prime Minister, NAT’L POST (Can.) (Apr. 21, 2011), [https://perma.cc/XV4Q-LRFR]. See also Gloria Galloway, Harper Denounces ‘Unfortunate’ Bid to Reopen Abortion Debate, GLOBE & MAIL, Apr. 27, 2012, at A8. The main debate during Harper’s tenure was over providing foreign aid to anti-abortion groups and decreasing aid to pro-choice groups. See JOHNSTONE, supra note 49, at 75-77.

618 See WITHOUT APOLOGY, supra note 47. Among many other voices, a woman who grew up in a religious community in the Toronto area related her experience vividly: “Fear keeps me from attending pro-choice events because of the pro-life individuals who may be in attendance. Fear keeps me from talking openly or in depth about the abortion . . . . I want to eradicate the stigma that surrounds abortion and that keeps some of us silent. But I will still write this without using my real name.” Kristen, A Lonely Ride, in WITHOUT APOLOGY 117, supra note 47, at 120.

619 In 2024, an abortion clinic in Fredericton, New Brunswick, was forced to close due to funding problems and the provincial government’s refusal to allow Medicare coverage. Before Clinic 554 opened in 2015, the building had housed the Morgentaler clinic since 1994. A report indicated that “[s]urgical abortions are only paid for by Medicare at the two hospitals in Moncton and at Chaleur Hospital in Bathurst. No other hospital in New Brunswick offers the service.” Aidan Cox, Clinic 554 to Close, Bringing Clinic-Based Abortions to End in Fredericton Area, CBC NEWS (Jan. 31, 2024), [https://perma.cc/X9US-JEZD].

620 See supra note 477 and accompanying text. 621 Editorial, On Abortion and Guns, Why Canada Ended Up in a Different–And Better–Place than

the U.S, GLOBE & MAIL, June 25, 2022, at A10.

622 In 2012, for instance, a legislator proposed a bill to study the Criminal Code’s definition of when human life begins—an attempt to gradually revisit the decriminalization of abortion. Nevertheless, the House of Commons voted 203 to 91 against it, as did Conservative Prime Minister Stephen Harper. Laura Payton, Motion to Study When Life Begins Defeated in Parliament, CBC NEWS (Sept. 26, 2012), [https://perma.cc/DAQ7-2TFV]. It is possible that in the future such initiatives will escalate in Parliament, that voting margins will shrink, and that abortion rights in Canada will be incrementally eviscerated. At present, however, the question is not whether this is possible but whether it is plausible.

623 See, e.g., JOHNSTONE, supra note 49, at 80 (“Anti-abortion legislation, advanced by backbench MPs, is a constant fixture in the House of Commons, where nearly fifty such bills have been defeated in less than thirty years. Although the failure of these bills to pass may seem like a boon, their nearly constant onslaught highlights a looming threat.”); see also id. at 96 (quoting the manager of Ontario Coalition of Abortion Clinics stating that she had no “great faith” in the government’s willingness to protect abortion rights).

624 Tristin Hopper, Are Conservatives Poised to Split Again?, NAT’L POST (June 28, 2022),

[https://perma.cc/5HNC-UH3E].

625 CONSERVATIVE PARTY CAN., POLICY DECLARATION (2023), [https://perma.cc/65R9-TQNK].

626 Poilievre Reiterates: No Changes to Abortion, Same-Sex Marriage and Cannabis Laws in Tory

Plans, MONTREAL GAZETTE (June 5, 2024), [https://perma.cc/26QE-K34M].

627 Id. 628 Stephanie Taylor, Poilievre Says He Plans to Promote Adoption as ‘Greater Good’ Over Legislating Abortion, NAT’L POST (Can.) (Oct. 1, 2024), [https://perma.cc/U2L3-QATX]. Incidentally, Poilievre’s comments about facilitating adoption should be understood in the context of him having been adopted as a child; and differ from politicians who simply call for a ban on abortion and promote adoption as the alternative. Id.

629 Id. 630 Id.; Poilievre Reiterates, supra note 626; John Paul Tasker, Pierre Poilievre Disagrees with Conservative MP Who Wants to Vote Against Same-Sex Marriage, CBC NEWS (June 3, 2024, 11:47 AM), [https://perma.cc/995B-N3P4].

631 See generally Kate McKenna, Ex-Conservative MP Claims Anti-Abortion Movement Has

Influence Inside the Party, CBC NEWS (Oct. 24, 2024, 2:49 PM), [https://perma.cc/U6EZ-REU3].

632 Andrew Lawton, Who Is the Real Pierre Poilievre?, THE WALRUS (July 1, 2024, 6:30 AM),

[https://perma.cc/NQ2G-SD8K].

633 Id. 634 Id. 635 See generally David Baxter, Could Notwithstanding Clause Be Used on Abortion? Poilievre’s Office Says ‘Never’., GLOB. NEWS (May 9, 2024), [https://perma.cc/XQ98-A9J5]; McKenna, supra note 631.

636 See supra note 15 and accompanying text. 637 See McCann & Walker, supra note 23. 638 See Jouet, Abortion and American Exceptionalism, supra note 9 (exploring the outsized

influence of the U.S. anti-abortion movement as a special-interest group).