The US Supreme Court Human Rights Counterrevolution — Implications for Canada
A recent series of radically partisan judicial decisions by the US Supreme Court marks the first rollback of fundamental human rights since the post-war era. These judicial pronouncements mark the first time in American legal history that the Supreme Court has revoked constitutional rights that had once been secured by the American Constitution. This turn of events can be said to be nothing more than a display by the judiciary of a distinctly anti-democratic legal character.
In a matter of days, the court decisions significantly eroded or outright obliterated human rights concerning bodily autonomy and abortion.
In Canada, it is tempting to take the position that such occurrence is irrelevant to us and will have no bearing on the constitutional rights entrenched in our legal system. However, such an assertion may well be incorrect. In many ways, the interplay between Canadian and American judicial pronouncements has influenced the making of Canada’s laws, and perhaps the opposite is also true.
Almost a decade ago, US Supreme Court Justice Scalia told Canadian judges that American law was self-contained, and that it had always bristled at the idea of outside legal influences. He further commented that in deciding the scope of American law, the opinions of foreign courts were unthinkable.
Prior to her untimely passing, the iconic US Supreme Court Justice Ruth Bader Ginsburg took a different view and stated that if she were to reform the United States Constitution, she would do so along lines much closer to the Canadian Charter of Rights and Freedoms. For better or for worse, Canadian and American jurisprudence are more intertwined than we would like to think.
In its decision in Dobbs v. Jackson Woman’s Health Authority, the Supreme Court of the Us overturned the decision in Roe vs Wade and found that there is no constitutional federal right to an abortion.
In light of this decision, it is worth examining the Supreme Court of Canada’s decision in R v Morgentaler, which functioned much the same as Roe, thereby enshrining a constitutional right to abortion.
In Morgentaler, the Supreme Court of Canada made mention of the interaction between the Canadian and American legal systems, and in so doing, stated that Roe v. Wade had been followed by the Supreme Court of the US in other decisions, including Thornburgh v. American College of Obstetricians and Gynecologists.
In the Thornburgh case, the Court identified the core value that American courts have found inherent in the concept of liberty, stating it this way:
Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government . . . . That promise extends to women as well as to men. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision — with the guidance of her physician and within the limits specified in Roe — whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all.
In Morgentaler, the Court stated that the respect for individual decision-making in matters of fundamental personal importance reflected in American jurisprudence also informed the Canadian Charter, including beliefs about human worth and dignity. The Chief Justice of the Supreme Court of Canada said this: “I would conclude therefore, that the right to liberty contained in section 7 (of the Canadian Charter of Rights and Freedoms) guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives.
Although in Morgentaler, the Supreme Court recognized a certain commonality between Canadian and American jurisprudence regarding the topic of abortion, the Chief Justice was quick to point out the difference between the Canadian and American jurisprudence. He reiterated that it would not be beneficial in Canada to allow a debate that was rooted in American constitutional dilemmas to shape our interpretation of the Charter. He said that we would be doing our own Constitution a disservice by allowing the American debate to define the issue for Canadians, all the while ignoring the truly fundamental structural differences between the two Constitutions.
That said, it is important to remember that comparative law is a two-way street. It is at best naive, and at worst, proud, to believe that the recent developments from the US Supreme Court will not have an influence on the Canadian legal world.
Just as Roe was cited by the Canadian Supreme Court in Morgentaler, so may Dobbs be cited by a future Canadian court. Just as judges have the power to recognize rights, so too do they have the ability to undermine the retention of such rights as guaranteed by the Canadian Constitution.
In July of 2022, an article co-authored for JURIST magazine by Steven Donziger and John Manderscheid dealt with the constitutional and jurisprudential repercussions of the decisions from the most recent session of the United States Supreme Court. This article above details the relevance of these decisions to the Canadian legal context and was written by John Manderscheid BA, MA, LLB, LLM. John is an articling student at Kirwin LLP and is a keen advocate of human rights. This article reflects his opinions only.
