May 6, 2022·edited May 6, 2022Liked by Line Editor
This is really, really good. I'm on the left, but am concerned at the way our Supreme Court has increasingly invented law on the fly; our free speech rights came within a single vote of implosion recently in a ruling over a Quebec comic's joke. And while I initially cheered the creation of our federal and provincial human rights tribunals, I have become increasingly wary of their power-creep, as a critical mass of ideological members make rulings that have acquired the practical force of court rulings. (Several years ago, a self-identified transwoman in BC came close to winning a case that would have made poor, immigrant women wax that person's balls. Supporters of the hairy-balled claimant only fled when the person self-outed and their grift became clear. Although the specific individual lost their case for being a serial litigant, whether genitally male women can force women perform the service was, remarkably, left an open question.)
Great article. I don't have much to add except that I've been reading a lot about Roe lately and this is the first article that boldly concedes Alito has a point while still writing from a Pro-Choice bias. The Left simply can't seem to engage on this topic without being clouded by the distastrous outcomes that will be inevitable. These outcomes are the blind spot of those on the Right. In the end I think successful human lives and a functioning society should overrule jurisprudence, and I guess that is an uncomfortable truth.
A really great analysis of the situation. RBG always had reservations about Roe v. Wade. I lived in the US for quite awhile, and my fellow pro-choice friends were always concerned that it wouldn’t stand. And now we have Louisiana’s abortion law - no exceptions, even to save the mother’s life. Texas was grim enough - this is pure misogyny imo.
If you look at the issue from a constitutionality perspective, it hinges on when a fetus becomes a person and therefore has rights. While you are defining this you might as well discuss how many angels can dance on the head of a pin. This leaves you with the option of defining it through legislation and there are lots of moral issues which are. You have to have a well defined understanding of the moral centre on these issues which abortion does not have though. I am betting that the Harper Conservatives saw this as a "tar baby" and correctly steered clear of the issue.
If I were to pick an issue established by legal precedent in Canada that has been a thorn in our sides over the years, it would be the requirement for consultation on First Nations traditional lands. Consultation has been a poorly defined term in a legal sense and it has ended up being weaponized in many legal proceedings and has created a "gordian knot" of procedures and guidelines. Like Roe vs Wade, it falls in the centre of emotionally charged issues like resource development, climate change, and reconciliation. Somewhere under the facade of residential school issues, and missing and murdered indigenous women issues is a problem which makes Roe vs Wade look like a walk in the park.
You don't have to be convinced you are correct to want to have decisions left to a technocratic elite. You just have to believe that the technocratic elite will always be on your side. That's why the universities are so important: nobody can realistically expect to join the technocratic elite without a university degree, so ensuring an ideological monoculture in the universities eventually ensures one in the elite (of which, of course, university profs and admins are a part).
This is why attacking Trinity Western University's ability to offer law degrees was so important to the Laurentian elite. Lawyers and especially judges are members of the elite who can individually disrupt the "consensus". Professors, politicians, and senior civil servants are far less powerful when acting in small groups.
Jen, you lay out your argument better than many in the "formal" legal community. At times like this I'm glad that our SCC nomination process is not (overtly) partisan. That is to say, our Supreme Court Justices are not labeled with red or blue. However, there are a few examples of our highest court legislating from the bench. That whole Charter thing kinda took on a life of its own eh? Thanks for another no bullshit look past the MSM headlines.
The thing I think we need more of in our society is tolerance. Tolerance seems to me to be the cornerstone of a free society -- a willingness to be ok with people living and doing things you don't agree with as long as it doesn't unduely impact your freedoms.
If we become a society where we're only ok if we're surrounded by people living life pretty much as we would, then we're really shopping for a sympatheic autocracy. On same days, that's what our increasingly partisan politics feels like.
To bring it back to the issue at hand -- we're never, ever going to come to a policy on abortion that everyone approves of. Given the significant impact on women for limited abortion, the focus probably should be not on restricting or legistlating abortion, but on public policy measures thate reduce the demand for abortion as much as possible.
I read the ruling. It was dismissed, as I mentioned, because Yaniv was called a "vexatious litigant" (my comment said 'serial litigant") but the question of whether the immigrant women would otherwise have had to wax someone else's balls was left unaddressed. It is notable that Morgane Oger and other activists were insistent that they should be forced to do so as part of "gender affirming care" and only fled when Yaniv self-revealed. For another litigant, the question was left completely open. For a body with quasi-judicial powers that is frightening, particularly given the cost of paying a lawyer to defend oneself when the complainant has state representation.
I'm a reluctantly pro-choice. Abortion is gross, and a sin, and a waste of a potential life, but that doesn't mean we need the state to intervene. It's impractical and creates more problems than it solves. Better to work on making abortion obsolete. Numbers in Canada are trending down, so yay for that.
I've also heard that the Roe decision was always dodgy from a legalistic standpoint.
One channel I watch made these points:
-Republicans lose with this ruling, since they have somewhat of a "dog who catches the car, what now?" scenario.
- Democrats reduce an expected midterm loss of 50 seats to 25, but now they're pressured to react, and Obama's failed promise to codify abortion rights is being noticed.
-Both sides have lost the bogeyman/promise of repealing Roe.
On the bright side, we're talking about it, and it's an important issue. Our culture sweeps death under the rug too much.
Good column. Having no idea it would become timely, a few months ago I did a piece comparing the politics of abortion in Canada and the United States. As was pointed out in this article, one difference was the nature of Supreme Court rulings. In the US, the court made a political decision. In Canada, the court told Parliament to do it - which proved incapable of doing so, leaving us with no law (for better or worse). The other big difference is the juristiction for criminal law. Canada has 1 criminal codes. There are 51 in the United States. This creates a much more differentiated legal regime (again, for better or worse). https://markstobbe.substack.com/p/the-politics-of-abortion?r=2rvjn&s=w&utm_campaign=post&utm_medium=web
Thanks for this Jen. Superb piece. I am adamantly pro-choice, but appreciated your thoughtful dissection of the issue. I am always uneasy when judges make laws, rather than the citizenry. I worry for the women in states that will criminalize abortion. In many respects this is a class issue, with visible minorities and poorer women being most threatened by this.
This is excellent. So much "analysis" of third rail issues just winds up being juvenile emotive word salads that never deal with the heart of the issue. It leads to weak laws, or, in the case of Canada on this issue, no law. True, long lasting legislation takes an immense amount of hard work and dedication, and the dirty truth is, Pro-Choicer's across North America simply haven't done it. They have lazily relied on Supreme court decisions that can be overturned or new precedent set the moment paradigms change.
As Jen noted, in Canada, it's doctors who control the access. Liberal and NDP politicians yell at conservatives, daring them to try and attempt to legislate it as a wedge issue, but nowhere in this country has a legislative body attempted to force a health body to offer it, or prescribe RU486. The medication may be legal - doesn't mean a doctor has to give it to anyone. In my opinion, it leaves a women in a worse situation than if the laws were clearly defined. It may not be illegal, but nor is it law to be provided. She has no protection either way.
This will backfire eventually, and we may be watching it happen in real time. Medical abortions (RU486) and innovations in contraception access (like IUDs and over the counter morning after pills) have fundamentally changed the root of the conversation (surgical abortions are down 95% in most of Canada). I've been watching a bunch of Boomers and GenXers yell at each other about a problem that has drastically changed in scope. No one is actually speaking to the in real time situation a young woman would find herself in.
If the demand for surgical abortions continues to drop, doctors will simply stop performing them in their clinics. We pay per service, and it wouldn't be financially advantageous for an OB/GYN to continue stocking the materials required for a procedure they rarely do. As Pro Lifers and Pro Choicers scream at each other, women may find themselves profoundly alone, with no one to turn to. Not sure that's great, either. And no one seems willing to hold Liberal legislators accountable for it.
Jen, Wow, just Wow! You really do present a logical discussion. As always, I am a fan of your writing and Matt's writing for your (plural, here) clarity and logic.
Now a couple of comments on the substance of the issue.
Perhaps as you can determine from my name, I am a male. That means that, by definition, I cannot approach the issue in the same fashion as a female. It also means that the access to or denial of that access would have a different effect on me than on a female.
I therefore propose that any decision on this topic in Canada be left entirely to women. Period.
I have the right to an opinion; absolutely, I do, but I simply have no competence, no knowledge, no basis beyond opinion to allow me to form any rational rule on this topic. Similarly, any other male should be disqualified.
You might object to my proposal on the basis that if I were a lawmaker I would have every right to vote on all subjects, no matter my knowledge on the subject, so why should abortion be different? Well, because it IS different. Get over it.
I offer as one final comment something that my wife has offered up for many years when the topic of restriction on abortion arises: if all you pro-life folks are serious about "saving the babies" are you going to raise those babies yourselves or are you simply going to ensure that they are born and then abandon the mothers and the babies? Definitely something to think about.
Excellent observations, but unfortunately it misses a crucial point: the conservative pro-life movement didn't only take over the courts, but it ensured that there is no *political* avenue for codifying abortion through decades of voter suppression and gerrymandering. There is actually no way for the pro-choice majority of the country, or even in a purple state, to pass legislation to protect women's rights. We are fortunate in Canada that we are not subject to the same political constraints.
This is really, really good. I'm on the left, but am concerned at the way our Supreme Court has increasingly invented law on the fly; our free speech rights came within a single vote of implosion recently in a ruling over a Quebec comic's joke. And while I initially cheered the creation of our federal and provincial human rights tribunals, I have become increasingly wary of their power-creep, as a critical mass of ideological members make rulings that have acquired the practical force of court rulings. (Several years ago, a self-identified transwoman in BC came close to winning a case that would have made poor, immigrant women wax that person's balls. Supporters of the hairy-balled claimant only fled when the person self-outed and their grift became clear. Although the specific individual lost their case for being a serial litigant, whether genitally male women can force women perform the service was, remarkably, left an open question.)
Great article. I don't have much to add except that I've been reading a lot about Roe lately and this is the first article that boldly concedes Alito has a point while still writing from a Pro-Choice bias. The Left simply can't seem to engage on this topic without being clouded by the distastrous outcomes that will be inevitable. These outcomes are the blind spot of those on the Right. In the end I think successful human lives and a functioning society should overrule jurisprudence, and I guess that is an uncomfortable truth.
A really great analysis of the situation. RBG always had reservations about Roe v. Wade. I lived in the US for quite awhile, and my fellow pro-choice friends were always concerned that it wouldn’t stand. And now we have Louisiana’s abortion law - no exceptions, even to save the mother’s life. Texas was grim enough - this is pure misogyny imo.
If you look at the issue from a constitutionality perspective, it hinges on when a fetus becomes a person and therefore has rights. While you are defining this you might as well discuss how many angels can dance on the head of a pin. This leaves you with the option of defining it through legislation and there are lots of moral issues which are. You have to have a well defined understanding of the moral centre on these issues which abortion does not have though. I am betting that the Harper Conservatives saw this as a "tar baby" and correctly steered clear of the issue.
If I were to pick an issue established by legal precedent in Canada that has been a thorn in our sides over the years, it would be the requirement for consultation on First Nations traditional lands. Consultation has been a poorly defined term in a legal sense and it has ended up being weaponized in many legal proceedings and has created a "gordian knot" of procedures and guidelines. Like Roe vs Wade, it falls in the centre of emotionally charged issues like resource development, climate change, and reconciliation. Somewhere under the facade of residential school issues, and missing and murdered indigenous women issues is a problem which makes Roe vs Wade look like a walk in the park.
You don't have to be convinced you are correct to want to have decisions left to a technocratic elite. You just have to believe that the technocratic elite will always be on your side. That's why the universities are so important: nobody can realistically expect to join the technocratic elite without a university degree, so ensuring an ideological monoculture in the universities eventually ensures one in the elite (of which, of course, university profs and admins are a part).
This is why attacking Trinity Western University's ability to offer law degrees was so important to the Laurentian elite. Lawyers and especially judges are members of the elite who can individually disrupt the "consensus". Professors, politicians, and senior civil servants are far less powerful when acting in small groups.
You got me with this one, Jen. I just subscribed for a year. Love ya.
Jen, you lay out your argument better than many in the "formal" legal community. At times like this I'm glad that our SCC nomination process is not (overtly) partisan. That is to say, our Supreme Court Justices are not labeled with red or blue. However, there are a few examples of our highest court legislating from the bench. That whole Charter thing kinda took on a life of its own eh? Thanks for another no bullshit look past the MSM headlines.
Excellent. Thought provoking and a clear case for the necessity of inclusive and engaging politics.
The thing I think we need more of in our society is tolerance. Tolerance seems to me to be the cornerstone of a free society -- a willingness to be ok with people living and doing things you don't agree with as long as it doesn't unduely impact your freedoms.
If we become a society where we're only ok if we're surrounded by people living life pretty much as we would, then we're really shopping for a sympatheic autocracy. On same days, that's what our increasingly partisan politics feels like.
To bring it back to the issue at hand -- we're never, ever going to come to a policy on abortion that everyone approves of. Given the significant impact on women for limited abortion, the focus probably should be not on restricting or legistlating abortion, but on public policy measures thate reduce the demand for abortion as much as possible.
I read the ruling. It was dismissed, as I mentioned, because Yaniv was called a "vexatious litigant" (my comment said 'serial litigant") but the question of whether the immigrant women would otherwise have had to wax someone else's balls was left unaddressed. It is notable that Morgane Oger and other activists were insistent that they should be forced to do so as part of "gender affirming care" and only fled when Yaniv self-revealed. For another litigant, the question was left completely open. For a body with quasi-judicial powers that is frightening, particularly given the cost of paying a lawyer to defend oneself when the complainant has state representation.
I'm a reluctantly pro-choice. Abortion is gross, and a sin, and a waste of a potential life, but that doesn't mean we need the state to intervene. It's impractical and creates more problems than it solves. Better to work on making abortion obsolete. Numbers in Canada are trending down, so yay for that.
I've also heard that the Roe decision was always dodgy from a legalistic standpoint.
One channel I watch made these points:
-Republicans lose with this ruling, since they have somewhat of a "dog who catches the car, what now?" scenario.
- Democrats reduce an expected midterm loss of 50 seats to 25, but now they're pressured to react, and Obama's failed promise to codify abortion rights is being noticed.
-Both sides have lost the bogeyman/promise of repealing Roe.
On the bright side, we're talking about it, and it's an important issue. Our culture sweeps death under the rug too much.
Good column. Having no idea it would become timely, a few months ago I did a piece comparing the politics of abortion in Canada and the United States. As was pointed out in this article, one difference was the nature of Supreme Court rulings. In the US, the court made a political decision. In Canada, the court told Parliament to do it - which proved incapable of doing so, leaving us with no law (for better or worse). The other big difference is the juristiction for criminal law. Canada has 1 criminal codes. There are 51 in the United States. This creates a much more differentiated legal regime (again, for better or worse). https://markstobbe.substack.com/p/the-politics-of-abortion?r=2rvjn&s=w&utm_campaign=post&utm_medium=web
Thanks for this Jen. Superb piece. I am adamantly pro-choice, but appreciated your thoughtful dissection of the issue. I am always uneasy when judges make laws, rather than the citizenry. I worry for the women in states that will criminalize abortion. In many respects this is a class issue, with visible minorities and poorer women being most threatened by this.
This is excellent. So much "analysis" of third rail issues just winds up being juvenile emotive word salads that never deal with the heart of the issue. It leads to weak laws, or, in the case of Canada on this issue, no law. True, long lasting legislation takes an immense amount of hard work and dedication, and the dirty truth is, Pro-Choicer's across North America simply haven't done it. They have lazily relied on Supreme court decisions that can be overturned or new precedent set the moment paradigms change.
As Jen noted, in Canada, it's doctors who control the access. Liberal and NDP politicians yell at conservatives, daring them to try and attempt to legislate it as a wedge issue, but nowhere in this country has a legislative body attempted to force a health body to offer it, or prescribe RU486. The medication may be legal - doesn't mean a doctor has to give it to anyone. In my opinion, it leaves a women in a worse situation than if the laws were clearly defined. It may not be illegal, but nor is it law to be provided. She has no protection either way.
This will backfire eventually, and we may be watching it happen in real time. Medical abortions (RU486) and innovations in contraception access (like IUDs and over the counter morning after pills) have fundamentally changed the root of the conversation (surgical abortions are down 95% in most of Canada). I've been watching a bunch of Boomers and GenXers yell at each other about a problem that has drastically changed in scope. No one is actually speaking to the in real time situation a young woman would find herself in.
If the demand for surgical abortions continues to drop, doctors will simply stop performing them in their clinics. We pay per service, and it wouldn't be financially advantageous for an OB/GYN to continue stocking the materials required for a procedure they rarely do. As Pro Lifers and Pro Choicers scream at each other, women may find themselves profoundly alone, with no one to turn to. Not sure that's great, either. And no one seems willing to hold Liberal legislators accountable for it.
Jen, Wow, just Wow! You really do present a logical discussion. As always, I am a fan of your writing and Matt's writing for your (plural, here) clarity and logic.
Now a couple of comments on the substance of the issue.
Perhaps as you can determine from my name, I am a male. That means that, by definition, I cannot approach the issue in the same fashion as a female. It also means that the access to or denial of that access would have a different effect on me than on a female.
I therefore propose that any decision on this topic in Canada be left entirely to women. Period.
I have the right to an opinion; absolutely, I do, but I simply have no competence, no knowledge, no basis beyond opinion to allow me to form any rational rule on this topic. Similarly, any other male should be disqualified.
You might object to my proposal on the basis that if I were a lawmaker I would have every right to vote on all subjects, no matter my knowledge on the subject, so why should abortion be different? Well, because it IS different. Get over it.
I offer as one final comment something that my wife has offered up for many years when the topic of restriction on abortion arises: if all you pro-life folks are serious about "saving the babies" are you going to raise those babies yourselves or are you simply going to ensure that they are born and then abandon the mothers and the babies? Definitely something to think about.
Excellent observations, but unfortunately it misses a crucial point: the conservative pro-life movement didn't only take over the courts, but it ensured that there is no *political* avenue for codifying abortion through decades of voter suppression and gerrymandering. There is actually no way for the pro-choice majority of the country, or even in a purple state, to pass legislation to protect women's rights. We are fortunate in Canada that we are not subject to the same political constraints.