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.)
Sorry to harp on your examples, but the Yaniv Human rights case you say was “close” was actually dismissed, with the trans woman being ordered to pay costs of $6000 to the estheticians, and being criticized because her complaint was “brought for improper motives”.
I am a new commenter and didn't say the law was making things up. However if the beauticians continue (after already having been forced through the stress of a tribunal hearing) to have to engage legal advice and have any concerns about this at all then the legal system has a problem it should be trying to fix.
This article is about neither. It is about whether judges should make law in the absence of legislation, to what extent it has merit, and to what extent removing power from elected to unelected bodies can pose problems.
Other examples are easy to find by googling. They fall under the 'living tree' theory of law, which Jen mentions and to which I'm sympathetic. But you can see the problem when politicians appoint judges, especially when there is an imbalance in the amount of time one party remains in power: Note howls from the left when Harper tried to appoint Nadon. Also the fears of a right-wing court under Harper. There would have been no such fear if the court wasn't making ideological decisions; our fear was specifically that they'd be made by "the other side".
R v. Jordan is your example that justifies the statement that the “Supreme Court has increasingly invented law on the fly”. The while article talks more about how the decision is appropriate and serving an important purpose in the justice system.
My concern with broad statements like you have made about courts somehow making up law is that it’s not only uninformed, but is the taken up by the wingnuts who think any decision they don’t agree with is wrong.
R v Jordan is but one example. I have urged you to google for others; they aren't hard to find.
Contrary to your assertion, the article is nuanced and absolutely does *not* conclude that the decision was appropriate: It provides a range of opinion.
I understand why the court wanted to put political pressure on the government to fund the court system appropriately. However, as the article makes clear, as did 4 of the 9 justices, providing a regulatory framework was not part of the case the justices were deciding. They chose to invent arbitrary specific time limits without having been asked by anyone to do so, and without much discussion or any input. In short, they created time lines out of whole cloth which is literally "made up law" "invented on the fly". It is not "uninformed" to state facts.
Wingnuts are going to wing nut. One is responsible for being able to back up one's arguments, but not for the behaviour of others.
The SCC adjusting its own rules is not quite the same as making laws on the fly. Is this article the only source of info you have on what they did and the reasons behind it? Is the SCC still putting out time limits, or is this a non-starter that really has nothing to do with the American SC and what their leaked draft is stirring up?
I think you need to read Jen's article more closely. The leak is irrelevant to it. Originalist versus living tree interpretations of constitutions is at issue, and more generally how broadly the consequences of unelected bodies interpreting and reading in rights beyond legislative texts.
I have provided two Supreme Court judgements in my comments on this thread. I don't have time to do your research.
(I agree with you on Nadon, although how that's germane is beyond me. Also, fwiw, I am on the left, support our Charter and am sympathetic to arguments for interpretive flexibility, all of which are also irrelevant, but which I mention because I think you are making assumptions about my politics.)
There is not a link to the article there. From the abstract it seems to be a review of the principles of statutory interpretation. You don’t think law schools should be teaching students the accepted approach to interpretation of legislation that has come from over a hundred years of case law and forms the basis for our legal system?
If you have access to the article perhaps you can share the bits that you find interesting?
I think the point being made is the laws are interpreted as to the ideology of the judicial appointee. What you read into any law written, be it a hundred or a day old, it will be interpreted as to the ideals of the person sitting in judgment. I hope that nails the case I am making shut.
To those who have your opinion perhaps but to others it’s common sense. You may believe any way you wish but it’s not that my case is lousy it’s your thought process that is. Common sense seems to be a disappearing entity today just as is personal responsibility.
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.
The intellectual honesty is refreshing, eh? It was political neglect to hang women's fates for generations on such a weak decision, rather than continue bolstering institutions of equality and fighting the fight in each and every US state.
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.
Their power erodes over time, though, if they don't work to protect their palaces. Without regular maintenance, everything slowly degrades. Universities allowed fear to override their own defense mechanisms in Covid and their credibility has cracks in it. I don't see many of them rushing to plaster them over. We've entered a fascinating time in Canadian history.
I'm fully accepting I may be profoundly wrong here, but I don't think abortion as a wedge has the same effect it had even 5 years ago. A lot has changed and the people behind the curtain don't seem to see it.
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.
If you believe in tolerance across the board in Canada, that labels you as a right wing extremist. If you believe in it only for certain causes, you can be part of the main stream.
Ha ... based on your other posts, I'm guessing you'd consider me part of the mainstream. Balancing rights is always going to be a challenge where there is conflict. I do think that the public health measures we undertook during COVID-19 were by and large quite reasonable, as a communicable disease makes it difficult to allow everyone to just do what they want. Given how vocal you are on this particular issue, I'd say we can agree to disagree here.
Another area that's a huge challenge -- allowing people to follow their faith but also ensuring all people in Canada can exercise their rights. In cases where a religous tradition forbids homosexuality or believes groups (like women) should not be treated as equals, we have a challenge. How can those people follow their faith freely while ensuring all groups are free in Canada? That strikes to the heart of someting like the Quebec law.
I think that Jen's point (and what I was trying to expand on here) is these grey areas are always going to be a bit of a negotiation. You're not going to legislate a faithful people to accept homosexuality. You can create an expectation that they need to tolerate it in Canadian society. That requires some tolerance on both sides -- tolerance in the wider society that a faith group holds beliefs at odds with the broader culture and tolerance within that faith group that they can hold these beliefs without undue punishment from the majority.
We seem to be moving towards a more absolutist stance -- that tolerance is not enough. I think that's dangerous as if we all have to agree -- who decides where the agreement lies?
If we really want tolerance, we need to keep repeating that it's not the job of the government to ban all bad things, nor is it the job of the government to compel all good things. There should be a wide gap between what is forbidden and what is compulsory, and we should either forbid or compel only when the benefit is large, proven, and not violative of core human rights such as bodily autonomy or the various other rights listed in the Charter.
I agree with the statement "it's not the job of the government to ban all bad things, nor is it the job of the government to compel all good things." Yet, the fact we disagree on issues surrounding the pandemic point out that negotiating between conflicts between the rights of individuals will always be challenging -- and will always have competing points of view of where the balance should lie.
Plus, political realities can be hard. Take for an easy example: manditory seat belt laws. If we take your statement, there's no good reason for governments to mandate the use of seat belts. By and large the consequences of not wearing a seat belt are confined to the individual (unbelted back seat passengers can injure front seat passengers in an accident, but that's a bit of an edge case!). Yet, most provinces mandate seat belt use. In the ideal world we wouldn't, but our public health insurance system might not pay for medical costs associated with non-belt wearing accident victims -- so individuals could make a choice, but that choice would have consequences born entirely to them. That would certainly be more ideologically pure. But, the reality is, you'd get a bunch of unfortunate folks who didn't really think about it, didn't wear a belt, got injured in an accident, got their claim rejected -- then went to the media. Many people would be sympathetic and gov'ts would find themselves paying out anyway. So ... we get seat belt laws. At the end of the day, I can live with seat belt laws. We get fewer deaths and injuries and people aren't great at making these kinds of everyday decision, so the legistlative nudge helps. Is it the right thing to do ideologically in a free society? Probably not ... but I can live with it! The trick is both finding a balance most people can live with AND accepting that what's acceptable today might not (yet) be ideal.
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 think the profession is provincially-regulated. What is so vexatious is that there are plenty of licensed members of the profession who will serve clients of any gender, professionally and compassionately.
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.
This is the thing to watch, in both our countries. It's now an immediate issue in the US, and the Democrats are going to have to start proving they mean it - not just wielding a tenuously held court ruling as a mallet to beat their opponents to a pulp with. They have to actually ACT, and do the work required. Not as easy as just yelling or blaming. The ones doing the work currently are extremists themselves - admitting their proposed laws would allow for an abortion as a women was full term and dilating, which is bat shit crazy. There is no moral nor medical nor legal reason to terminate the life of a viable infant. That "abortion" is called a c-section, and the baby can be saved and adopted out within any sophisticated Western medical system. The medical abortion pill solves the problem up to 8 weeks. So the period up for debate here is from 9-22 weeks. In both our countries.
And it will be interesting to see, post Covid, if abortion is still the single issue absolutism for people than it once was. I'm not convinced. Too much has changed in 20 years, both socially and medically, on this issue.
I find it interesting ,Laura, that you highlight proposed laws that "would allow for an abortion as a women was full term and dilating, which is bat shit crazy (why batshit crazy?)" down to "period up for debate here is 9-22 weeks (debate?). In both our countries(incorrect)."
In Canada, a woman can technically ask for an abortion right up to the last minute. Do you know how many late-term abortions are carried out in Canada each year and why? Not very many (count on one hand).
Women don't want to have an abortion. They certainly don't want an abortion if the infant was hoped and planned for. Women do not use abortion as a form of birth control. Women don't, as young girls, wonder what their first abortion will be like. Women certainly don't need the church/religious knock off down the road to tell them they are murderers. Women also don't need their government at any level to tell them it's legal or not. Ultimately abortion is a decision between a woman and her doctor. It is a minor medical procedure, more simple than removing tonsils or a gall bladder.
To what end is having laws that specifically apply to only half the population other than control.
Every child a wanted child should be the goal. Currently, in Canada, we have minimal interference and that's a good thing. And having Health Canada run things is fine. It is a health issue. Are we going to start voting on every tonsil?
My grandkids are old enough that this could be an issue for them and what I think is needed is much better instruction on contraception and responsibility rather than rehashing old rules. The Americans could learn a thing or 2 from us.
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
A comprehensive story, thanks! But, see my link, I think it needs mention that the evangelical decision to invent it as their issue, provided the voting drivers behind all their politicians' "Kabuki theatre".
Indeed - as the article you linked up with - if you go back to the 1970s', the strongest Christian opposition to choice on abortion came from Catholics. Certainly in the states, that has moved towards Martin Luther and John Calvin.
There is much Kabuki theatre going on (from both sides) on the abortion question (as there is on so many others). I'm not sure if you follow David French - a very conservative, pro-life, fundamentalist who is also intellectually rigorous and principled. He often observes that he has asked many in the pro-life movement what they would prefer:
- a shift in social conditions and cultural assumptions such that abortions just stopped happening; that every pregnant woman choose to deliver the baby, or
- a national law imposing criminal sanctions for abortion; even if large numbers of pregnant woman and abortion providers broke the law to have abortions.
French reports that the majority of pro-life activists say they would prefer to have the (less-effective) law. He says their stated reason is that they value the moral denunciation inherent in the law - but suspects it is a question of power.
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.
Laura, you make some good points; very thoughtful comment.
I have elsewhere in this commentary noted that I, as a male [and all males], should be disqualified simply because I [we] am a male from deciding in any way (i.e., if I [we] were a legislator, judge, etc., etc.) from participating in the determination of whether or not abortion should be legal / illegal, provided / not provided, etc. That choice, I posit, should be exclusively for women.
Problem is most OBs who are qualified to do the surgeries are men. The Kensington Clinic in Calgary is run by a man. No legislators or judges make that determination in this country. Doctors and only doctors, do.
Most polls show it's actually more women than men that want abortion banned.
Laura, I absolutely understand that my proposal is perhaps utopian. However..
There is a difference between someone who runs a business or has a profession and being in a position to legislate a rule / law.
As for polls showing that more women than men want abortion banned, I must admit that I had not heard such a statistic. On the other hand, I must ask [again, apologies, for I am a mere male] should that be in any way indicative of [again, apologies] validity of the opposition to abortion? [Again, apologies. As they say, just asking - awful phrase!].
And, finally, you reference the Kensington Clinic. Yes, I do understand that it is run by a man as are many other such clinics. But, but, but I again note that having a job or a profession is quite different than legislating, etc.
Yes, such an action would have a potential (likelihood?) to affect people's jobs but then, that is something that government does all the time.
As for leaving things in the hands of women, I cannot make any prediction about the likelihood (or otherwise) of allowing women to choose the "correct" way forward. What I can say is that I, as a male, should be disqualified from telling you, as a female, should choose.
But you are speaking about legislating that person's job. You can't pass an abortion law without it. It's the mess we are in. We can't legislate it, because doing so by default, "removes choice". So we have left it in the hands of the medical profession to regulate without legal protection for either party. The number of doctors willing to enter this quagmire is shrinking, compounding the problem we have, and no legislative body is willing to face it head on.
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.
"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."
Ken, C'mon. Tons and tons and tons of Christians in this country adopt babies, run foster homes and run entire non-profits to support single mothers. I've volunteered with them. So yes, "Pro Lifers" will raise the babies. Any infant or young child in this country available for adoption is taken within hours of the decision being made, usually adopted by the family they are fostering in. I have several friends with multiple children they have adopted out of foster care.
Yup, I agree that many folks have adopted babies and done an absolute wizard job of raising them. In fact, it is my understanding that the is a - pardon the expression - a shortage of adoptable babies.
Yes, yes, yes. But, but, but.
If you force a woman to bear a child she could quite easily choose to keep that child. I wouldn't blame her for such a decision but economically that might not be a wise decision; but that is the decision that she took. Emotionally and in terms of family support as a child grows that might not be the best decision.
So, where are the pro-lifers in helping those women that are forced to bear the child but don't give them up for adoption?
Laura, I absolutely refuse to accept that it is acceptable to force a woman to have a child and to then force her to give the child up for adoption but there is no support for a woman who is forced to have that child and then has no support while that child goes through the twenty or whatever years of growing.
Very good point. The best question to ask a pro-lifer is: "How much money is in your fund?" "What fund?" "Your fund to support the single and poverty-stricken mothers of these babies you are so determined to see born." There is always silence after that.
Okay, that's one. I'm glad to hear it that it exists but I'm sure you're aware that that is a rarity... and that is because the vast majority of these people don't actually care about life. They want to control people's sex lives which is why they are also opposed to sex education and readily available contraception. Somebody said these people believe that life begins at conception and ends at birth.
It's not. There are many of them around the country. There is a high school in Calgary just for teenage mothers with a free day care staffed by dedicated volunteers.
Are you seriously excluding men with uteruses from the discussion? And including women without them? Why? What about post-menopausal women? There are plenty of good and compelling pro-choice arguments, but "men shouldn't say anything" isn't one of them.
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.
I would point out that the conservative right is not the only party guilty of gerrymandering in the U.S. And if your argument is that the Dems are literally helpless to keep abortion legal in many (albeit not all) States in the U.S. through the ordinary democratic processes, I suspect you're about to be surprised.
Abortion access in the US is about to get much more spotty by State, but there's also every possibility that US Conservatives are going to wildly overreach their grasp on this one. Andrew Sullivan's piece this week is worth checking out.
Thanks for your reply, Jen. Of course the Dems are also guilty of gerrymandering, but as we've seen over and over, Republicans have been very successful in winning and maintaining political power despite lacking majority support.
I suspect and hope you're right that the overreach will backfire. It's simply not sustainable in the long term. Thanks for the Sullivan recommendation. I'll check it out.
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.)
I could wax poetically for hours on this item, but shall demure.
That would be "demur."
I must have had wax on my fingers before hitting the keyboard.
"I do this all the time," he said demurely. :)
Sorry to harp on your examples, but the Yaniv Human rights case you say was “close” was actually dismissed, with the trans woman being ordered to pay costs of $6000 to the estheticians, and being criticized because her complaint was “brought for improper motives”.
It wasn’t close at all by my reading.
The decision is here if you’re interested: http://www.bchrt.bc.ca/shareddocs/decisions/2019/oct/222_Yaniv_v_Various_Waxing_Salons_No_2_2019_BCHRT_222.pdf
Yaniv has since brought more cases forward. This is wrong. https://nationalpost.com/news/trans-activist-jessica-yaniv-files-second-lawsuit-against-3-beauticians-after-losing-human-rights-suit-to-them-in-2019
But how is it an indictment of the court system? She is nuts but the tribunal has handled it appropriately so far in my opinion.
This started with you saying the legal system was making things up. But I don’t see any examples of that here.
I am a new commenter and didn't say the law was making things up. However if the beauticians continue (after already having been forced through the stress of a tribunal hearing) to have to engage legal advice and have any concerns about this at all then the legal system has a problem it should be trying to fix.
The waxing of balls and other frivolous lawsuits, and abortion laws in the US have nothing to do with one another.
This article is about neither. It is about whether judges should make law in the absence of legislation, to what extent it has merit, and to what extent removing power from elected to unelected bodies can pose problems.
Can you give some more examples of the SCC inventing law on the fly?
Here, and from a left newspaper's perspective: https://www.thestar.com/news/gta/2017/03/19/how-an-invented-supreme-court-ruling-has-rocked-the-canadian-justice-system.html
Other examples are easy to find by googling. They fall under the 'living tree' theory of law, which Jen mentions and to which I'm sympathetic. But you can see the problem when politicians appoint judges, especially when there is an imbalance in the amount of time one party remains in power: Note howls from the left when Harper tried to appoint Nadon. Also the fears of a right-wing court under Harper. There would have been no such fear if the court wasn't making ideological decisions; our fear was specifically that they'd be made by "the other side".
https://www.theglobeandmail.com/news/politics/the-coming-conservative-court-harper-to-reshape-judiciary/article595398/
R v. Jordan is your example that justifies the statement that the “Supreme Court has increasingly invented law on the fly”. The while article talks more about how the decision is appropriate and serving an important purpose in the justice system.
My concern with broad statements like you have made about courts somehow making up law is that it’s not only uninformed, but is the taken up by the wingnuts who think any decision they don’t agree with is wrong.
R v Jordan is but one example. I have urged you to google for others; they aren't hard to find.
Contrary to your assertion, the article is nuanced and absolutely does *not* conclude that the decision was appropriate: It provides a range of opinion.
I understand why the court wanted to put political pressure on the government to fund the court system appropriately. However, as the article makes clear, as did 4 of the 9 justices, providing a regulatory framework was not part of the case the justices were deciding. They chose to invent arbitrary specific time limits without having been asked by anyone to do so, and without much discussion or any input. In short, they created time lines out of whole cloth which is literally "made up law" "invented on the fly". It is not "uninformed" to state facts.
Wingnuts are going to wing nut. One is responsible for being able to back up one's arguments, but not for the behaviour of others.
I googled. Can't find anything. Cite, please.
The SCC adjusting its own rules is not quite the same as making laws on the fly. Is this article the only source of info you have on what they did and the reasons behind it? Is the SCC still putting out time limits, or is this a non-starter that really has nothing to do with the American SC and what their leaked draft is stirring up?
And Nadon wasn't qualified.
I think you need to read Jen's article more closely. The leak is irrelevant to it. Originalist versus living tree interpretations of constitutions is at issue, and more generally how broadly the consequences of unelected bodies interpreting and reading in rights beyond legislative texts.
I have provided two Supreme Court judgements in my comments on this thread. I don't have time to do your research.
(I agree with you on Nadon, although how that's germane is beyond me. Also, fwiw, I am on the left, support our Charter and am sympathetic to arguments for interpretive flexibility, all of which are also irrelevant, but which I mention because I think you are making assumptions about my politics.)
The Universities that are teaching the up and coming litigators are doing so to the ideology of the Universities and academia. https://www.semanticscholar.org/paper/STATUTORY-INTERPRETATION-IN-A-NEW-NUTSHELL-Sullivan/fb8821ff0e0b9eb8fed2e856ee80e7d87dbcc502
There is not a link to the article there. From the abstract it seems to be a review of the principles of statutory interpretation. You don’t think law schools should be teaching students the accepted approach to interpretation of legislation that has come from over a hundred years of case law and forms the basis for our legal system?
If you have access to the article perhaps you can share the bits that you find interesting?
I think the point being made is the laws are interpreted as to the ideology of the judicial appointee. What you read into any law written, be it a hundred or a day old, it will be interpreted as to the ideals of the person sitting in judgment. I hope that nails the case I am making shut.
Lousy case ML.
To those who have your opinion perhaps but to others it’s common sense. You may believe any way you wish but it’s not that my case is lousy it’s your thought process that is. Common sense seems to be a disappearing entity today just as is personal responsibility.
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.
The intellectual honesty is refreshing, eh? It was political neglect to hang women's fates for generations on such a weak decision, rather than continue bolstering institutions of equality and fighting the fight in each and every US state.
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.
Their power erodes over time, though, if they don't work to protect their palaces. Without regular maintenance, everything slowly degrades. Universities allowed fear to override their own defense mechanisms in Covid and their credibility has cracks in it. I don't see many of them rushing to plaster them over. We've entered a fascinating time in Canadian history.
I'm fully accepting I may be profoundly wrong here, but I don't think abortion as a wedge has the same effect it had even 5 years ago. A lot has changed and the people behind the curtain don't seem to see it.
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.
If you believe in tolerance across the board in Canada, that labels you as a right wing extremist. If you believe in it only for certain causes, you can be part of the main stream.
Ha ... based on your other posts, I'm guessing you'd consider me part of the mainstream. Balancing rights is always going to be a challenge where there is conflict. I do think that the public health measures we undertook during COVID-19 were by and large quite reasonable, as a communicable disease makes it difficult to allow everyone to just do what they want. Given how vocal you are on this particular issue, I'd say we can agree to disagree here.
Another area that's a huge challenge -- allowing people to follow their faith but also ensuring all people in Canada can exercise their rights. In cases where a religous tradition forbids homosexuality or believes groups (like women) should not be treated as equals, we have a challenge. How can those people follow their faith freely while ensuring all groups are free in Canada? That strikes to the heart of someting like the Quebec law.
I think that Jen's point (and what I was trying to expand on here) is these grey areas are always going to be a bit of a negotiation. You're not going to legislate a faithful people to accept homosexuality. You can create an expectation that they need to tolerate it in Canadian society. That requires some tolerance on both sides -- tolerance in the wider society that a faith group holds beliefs at odds with the broader culture and tolerance within that faith group that they can hold these beliefs without undue punishment from the majority.
We seem to be moving towards a more absolutist stance -- that tolerance is not enough. I think that's dangerous as if we all have to agree -- who decides where the agreement lies?
If we really want tolerance, we need to keep repeating that it's not the job of the government to ban all bad things, nor is it the job of the government to compel all good things. There should be a wide gap between what is forbidden and what is compulsory, and we should either forbid or compel only when the benefit is large, proven, and not violative of core human rights such as bodily autonomy or the various other rights listed in the Charter.
I agree with the statement "it's not the job of the government to ban all bad things, nor is it the job of the government to compel all good things." Yet, the fact we disagree on issues surrounding the pandemic point out that negotiating between conflicts between the rights of individuals will always be challenging -- and will always have competing points of view of where the balance should lie.
Plus, political realities can be hard. Take for an easy example: manditory seat belt laws. If we take your statement, there's no good reason for governments to mandate the use of seat belts. By and large the consequences of not wearing a seat belt are confined to the individual (unbelted back seat passengers can injure front seat passengers in an accident, but that's a bit of an edge case!). Yet, most provinces mandate seat belt use. In the ideal world we wouldn't, but our public health insurance system might not pay for medical costs associated with non-belt wearing accident victims -- so individuals could make a choice, but that choice would have consequences born entirely to them. That would certainly be more ideologically pure. But, the reality is, you'd get a bunch of unfortunate folks who didn't really think about it, didn't wear a belt, got injured in an accident, got their claim rejected -- then went to the media. Many people would be sympathetic and gov'ts would find themselves paying out anyway. So ... we get seat belt laws. At the end of the day, I can live with seat belt laws. We get fewer deaths and injuries and people aren't great at making these kinds of everyday decision, so the legistlative nudge helps. Is it the right thing to do ideologically in a free society? Probably not ... but I can live with it! The trick is both finding a balance most people can live with AND accepting that what's acceptable today might not (yet) be ideal.
The heart won't light up.
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 think the profession is provincially-regulated. What is so vexatious is that there are plenty of licensed members of the profession who will serve clients of any gender, professionally and compassionately.
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.
This is the thing to watch, in both our countries. It's now an immediate issue in the US, and the Democrats are going to have to start proving they mean it - not just wielding a tenuously held court ruling as a mallet to beat their opponents to a pulp with. They have to actually ACT, and do the work required. Not as easy as just yelling or blaming. The ones doing the work currently are extremists themselves - admitting their proposed laws would allow for an abortion as a women was full term and dilating, which is bat shit crazy. There is no moral nor medical nor legal reason to terminate the life of a viable infant. That "abortion" is called a c-section, and the baby can be saved and adopted out within any sophisticated Western medical system. The medical abortion pill solves the problem up to 8 weeks. So the period up for debate here is from 9-22 weeks. In both our countries.
And it will be interesting to see, post Covid, if abortion is still the single issue absolutism for people than it once was. I'm not convinced. Too much has changed in 20 years, both socially and medically, on this issue.
I find it interesting ,Laura, that you highlight proposed laws that "would allow for an abortion as a women was full term and dilating, which is bat shit crazy (why batshit crazy?)" down to "period up for debate here is 9-22 weeks (debate?). In both our countries(incorrect)."
In Canada, a woman can technically ask for an abortion right up to the last minute. Do you know how many late-term abortions are carried out in Canada each year and why? Not very many (count on one hand).
Women don't want to have an abortion. They certainly don't want an abortion if the infant was hoped and planned for. Women do not use abortion as a form of birth control. Women don't, as young girls, wonder what their first abortion will be like. Women certainly don't need the church/religious knock off down the road to tell them they are murderers. Women also don't need their government at any level to tell them it's legal or not. Ultimately abortion is a decision between a woman and her doctor. It is a minor medical procedure, more simple than removing tonsils or a gall bladder.
To what end is having laws that specifically apply to only half the population other than control.
Every child a wanted child should be the goal. Currently, in Canada, we have minimal interference and that's a good thing. And having Health Canada run things is fine. It is a health issue. Are we going to start voting on every tonsil?
My grandkids are old enough that this could be an issue for them and what I think is needed is much better instruction on contraception and responsibility rather than rehashing old rules. The Americans could learn a thing or 2 from us.
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
A comprehensive story, thanks! But, see my link, I think it needs mention that the evangelical decision to invent it as their issue, provided the voting drivers behind all their politicians' "Kabuki theatre".
Indeed - as the article you linked up with - if you go back to the 1970s', the strongest Christian opposition to choice on abortion came from Catholics. Certainly in the states, that has moved towards Martin Luther and John Calvin.
There is much Kabuki theatre going on (from both sides) on the abortion question (as there is on so many others). I'm not sure if you follow David French - a very conservative, pro-life, fundamentalist who is also intellectually rigorous and principled. He often observes that he has asked many in the pro-life movement what they would prefer:
- a shift in social conditions and cultural assumptions such that abortions just stopped happening; that every pregnant woman choose to deliver the baby, or
- a national law imposing criminal sanctions for abortion; even if large numbers of pregnant woman and abortion providers broke the law to have abortions.
French reports that the majority of pro-life activists say they would prefer to have the (less-effective) law. He says their stated reason is that they value the moral denunciation inherent in the law - but suspects it is a question of power.
French's choices are garbage. So much for being principled.
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.
Laura, you make some good points; very thoughtful comment.
I have elsewhere in this commentary noted that I, as a male [and all males], should be disqualified simply because I [we] am a male from deciding in any way (i.e., if I [we] were a legislator, judge, etc., etc.) from participating in the determination of whether or not abortion should be legal / illegal, provided / not provided, etc. That choice, I posit, should be exclusively for women.
Problem is most OBs who are qualified to do the surgeries are men. The Kensington Clinic in Calgary is run by a man. No legislators or judges make that determination in this country. Doctors and only doctors, do.
Most polls show it's actually more women than men that want abortion banned.
Laura, I absolutely understand that my proposal is perhaps utopian. However..
There is a difference between someone who runs a business or has a profession and being in a position to legislate a rule / law.
As for polls showing that more women than men want abortion banned, I must admit that I had not heard such a statistic. On the other hand, I must ask [again, apologies, for I am a mere male] should that be in any way indicative of [again, apologies] validity of the opposition to abortion? [Again, apologies. As they say, just asking - awful phrase!].
And, finally, you reference the Kensington Clinic. Yes, I do understand that it is run by a man as are many other such clinics. But, but, but I again note that having a job or a profession is quite different than legislating, etc.
I think my point is that if this is left in the hands of women, and women alone, the results may surprise people.
Yes, such an action would have a potential (likelihood?) to affect people's jobs but then, that is something that government does all the time.
As for leaving things in the hands of women, I cannot make any prediction about the likelihood (or otherwise) of allowing women to choose the "correct" way forward. What I can say is that I, as a male, should be disqualified from telling you, as a female, should choose.
But you are speaking about legislating that person's job. You can't pass an abortion law without it. It's the mess we are in. We can't legislate it, because doing so by default, "removes choice". So we have left it in the hands of the medical profession to regulate without legal protection for either party. The number of doctors willing to enter this quagmire is shrinking, compounding the problem we have, and no legislative body is willing to face it head on.
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.
"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."
Ken, C'mon. Tons and tons and tons of Christians in this country adopt babies, run foster homes and run entire non-profits to support single mothers. I've volunteered with them. So yes, "Pro Lifers" will raise the babies. Any infant or young child in this country available for adoption is taken within hours of the decision being made, usually adopted by the family they are fostering in. I have several friends with multiple children they have adopted out of foster care.
Yup, I agree that many folks have adopted babies and done an absolute wizard job of raising them. In fact, it is my understanding that the is a - pardon the expression - a shortage of adoptable babies.
Yes, yes, yes. But, but, but.
If you force a woman to bear a child she could quite easily choose to keep that child. I wouldn't blame her for such a decision but economically that might not be a wise decision; but that is the decision that she took. Emotionally and in terms of family support as a child grows that might not be the best decision.
So, where are the pro-lifers in helping those women that are forced to bear the child but don't give them up for adoption?
Laura, I absolutely refuse to accept that it is acceptable to force a woman to have a child and to then force her to give the child up for adoption but there is no support for a woman who is forced to have that child and then has no support while that child goes through the twenty or whatever years of growing.
Oh yes, everything is rosy in the Xian baby and child care crèche.
Very good point. The best question to ask a pro-lifer is: "How much money is in your fund?" "What fund?" "Your fund to support the single and poverty-stricken mothers of these babies you are so determined to see born." There is always silence after that.
No there isn't. There is a massive, Christian run non-profit in Calgary that does just that with millions in privately raised funding.
I heard there was good money to be made in the baby racket.
Okay, that's one. I'm glad to hear it that it exists but I'm sure you're aware that that is a rarity... and that is because the vast majority of these people don't actually care about life. They want to control people's sex lives which is why they are also opposed to sex education and readily available contraception. Somebody said these people believe that life begins at conception and ends at birth.
It's not. There are many of them around the country. There is a high school in Calgary just for teenage mothers with a free day care staffed by dedicated volunteers.
Maybe the high school should have concentrated on classes for boys and girls covering contraception and responsibility.
No free daycare for older yet still vulnerable young moms? Is this also Xian run? You have 2 outfits in Calgary. Nothing in Edmonton?
Are you seriously excluding men with uteruses from the discussion? And including women without them? Why? What about post-menopausal women? There are plenty of good and compelling pro-choice arguments, but "men shouldn't say anything" isn't one of them.
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.
I would point out that the conservative right is not the only party guilty of gerrymandering in the U.S. And if your argument is that the Dems are literally helpless to keep abortion legal in many (albeit not all) States in the U.S. through the ordinary democratic processes, I suspect you're about to be surprised.
Abortion access in the US is about to get much more spotty by State, but there's also every possibility that US Conservatives are going to wildly overreach their grasp on this one. Andrew Sullivan's piece this week is worth checking out.
Thanks for your reply, Jen. Of course the Dems are also guilty of gerrymandering, but as we've seen over and over, Republicans have been very successful in winning and maintaining political power despite lacking majority support.
I suspect and hope you're right that the overreach will backfire. It's simply not sustainable in the long term. Thanks for the Sullivan recommendation. I'll check it out.