Dobbs v. Jackson Women’s Health Organization, the US Supreme Court decision that overturned Roe v. Wade: Key considerations for Canadian nurses1
Disclaimer: This page contains information in relation to U.S. law. The CNPS does not provide advice with respect to U.S. law. The information is included to provide appropriate context and support for the risk management advice in relation to the provision of abortion services to U.S. citizens.
Did you know? The CNPS recently wrote to the federal Minister of Health and the Minister of Families, Children and Social Development regarding the provision of abortion services to U.S. residents to outline some of the legal concerns for Canadian nurses and nurse practitioners. These concerns echoed some of those raised by the Canadian Medical Protective Society (CMPA) on behalf of physicians. CNPS beneficiaries may view a confidential version of this letter by clicking here: Correspondence to Federal Government re provision of abortion services to US residents.
Understanding the decision:
On June 24, 2022, the Supreme Court of the United States (SCOTUS) issued its decision in Dobbs v. Jackson Women’s Health Organization2 through which it revisited and overturned its earlier decisions in Roe v. Wade3 and Planned Parenthood of Southeastern Pennsylvania v. Casey4. The Roe v. Wade and Casey decisions recognized abortion as a constitutionally protected right in all the United States.
The majority decision was delivered by Justice Alito, on behalf of 4 other judges: Thomas, Gorsuch, Kavanaugh and Barrett. Two of the judges, Thomas and Kavanaugh, issued additional reasons. Justice John Roberts issued his own reasons which concur with the majority decision. The three remaining justices of the SCOTUS, Breyer, Sotomayor and Kagan, issued a strongly worded dissent.
As a result of Dobbs, abortion no longer has the status of protected constitutional right in the U.S. Each state legislature can now adopt legislation that will criminalize or otherwise prohibit abortions, without limitations as to the gestational age of the fetus. Abortions can, therefore, be made illegal from the time of conception.
Some states had existing laws which criminalize abortion, but these laws have not been enforced because they were invalidated by the prior decisions of SCOTUS. These laws are again in full force and effect.
Other states, in anticipation of the Dobbs ruling, have adopted pending legislation (“trigger laws”) to criminalize abortion once they had received confirmation that they can legally do so.
Within a particular state, abortion legislation could still be challenged Before the courts as inconsistent with the constitution in that state. For that reason, it may be that we will not know the final status of abortion laws in some states for a long time.
For ease of reference, please consult this list of the current status of abortion rights across the U.S. via the U.S. Centre for Reproductive Rights.*
*This link is being provided for informational purposes only and does not constitute an endorsement or an approval by the CNPS of any of the products, services or opinions of the corporation or organization or individual. The CNPS is not responsible for the privacy or security practices or the content of external websites, services, or products.
As set out in the decision, the circumstances that led to the Dobbs judgment originated in a legal challenge by a health clinic in Mississippi and a physician practicing in that clinic against legislation that prohibits abortions beyond 15 weeks except in limited circumstances. Mississippi’s Gestational Age Act provides that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform […] or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than 15 weeks”5.
The challenge was successful before the District Court and before the 5th Circuit Court, based on the established principle from earlier SCOTUS rulings that the right to an abortion prior to viability was protected under the U.S. Constitution, particularly the 5th and 14th Amendments, first adopted in 1868, which provide, in part, that “no person shall […] be deprived of life, liberty, or property, without due process of law”6.
The Mississippi Department of Health appealed to SCOTUS on the basis that the decisions which recognized the right to an abortion under the constitutional Amendments were wrongly decided.
Prior to the landmark decisions of Roe v. Wade and Planned Parenthood of Southern Pennsylvania, abortion law in the United States was determined solely by individual states and differed across the nation. Many states criminalized abortion, while several legalized it. SCOTUS decriminalized abortion nationwide in 1973 through its decisions in Roe v. Wade and Doe v. Bolton7. Roe v. Wade imposed a federally mandated uniform framework for state legislation, establishing a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy. This basic framework was modified in Planned Parenthood v. Casey8, decided by the Court in 1992.
Roe v. Wade: The case was brought in 1969 by a Texas woman known by the pseudonym “Jane Roe”, who wanted an abortion. However, in Texas, abortion was illegal except when necessary to save the mother’s life. Roe challenged that law in U.S. Federal Court alleging that Texas’s abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas ruled in her favour and declared the relevant Texas abortion legislation unconstitutional. That ruling was appealed to the Supreme Court. The Supreme Court issued a 7–2 decision holding that the Due Process Clause of the 14th Amendment to the United States Constitution provides a fundamental “right to privacy”, which protects a pregnant woman’s right to an abortion. The Court also held that the right to abortion is not absolute and must be balanced against the government’s interests in protecting women’s health and prenatal life. The Court resolved these competing interests by establishing a framework for state legislation: during the first trimester, governments could not regulate abortion at all, except to require that abortions be performed by a licensed physician. During the second trimester up to the point of fetal viability, governments could regulate abortion but only for the purpose of protecting maternal health and not for protecting fetal life. After viability, which includes the third trimester of pregnancy and the last few weeks of the second trimester, abortions could be regulated and even prohibited, but only if the laws provided exceptions for abortions necessary to save the “life” or “health” of the mother. The Court also classified the right to abortion as “fundamental,” which required courts to evaluate challenged abortion laws under the “strict scrutiny” standard, the most stringent level of judicial review in the United States.
Planned Parenthood of Southern Pennsylvania v. Casey: In this case, five provisions of the Pennsylvania Abortion Control Act were challenged; among them were requirements for a waiting period, spousal notice, and for minors, parental consent prior to undergoing an abortion procedure. The Supreme Court, in a 5-4 decision, upheld the “essential holding” of Roe, which indicated that the Due Process Clause of the 14th Amendment to the United States Constitution protected a woman’s right to have an abortion prior to fetal viability. However, it overturned the trimester framework in favour of a viability analysis and abandoned Roe’s “strict scrutiny” standard in favour of an “undue burden” test. Fetal viability would allow states to implement abortion restrictions that apply during the first trimester of pregnancy. Undue burden meant that abortion restrictions would be unconstitutional when they were enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus”9. By application of this new standard of review, the Court upheld four of the five Pennsylvania requirements but invalidated the spousal notice requirement.
Abortion was a fundamental right in the United States from January 22, 1973 (Roe v. Wade), until June 24, 2022 (Dobbs), a period of 49 years, 5 months, 2 days. The return to determination of abortion laws state-by-state has only just begun.
In its majority decision, SCOTUS does not engage in an analysis of the rights of the fetus and the rights of the mother10.
The Court decided to set aside the concept of personal autonomy that their predecessors found to have been a common thread within several constitutional amendments (particularly in the right to liberty contained in the 14th Amendment). It did so largely for historical reasons. Firstly, the Court noted that it should be reluctant to rely on the Constitution to protect or recognize civil rights that are not expressly referenced in the Constitution. Secondly, the majority of the Court stated it should only do so in respect of rights “deeply rooted in our Nation’s history and tradition” and that are “essential to our Nation’s ‘scheme of ordered liberty’”11. In other words, only those rights that have been found, following a historical analysis, to have long been embedded in the fabric of the American society should be recognized. Following this reasoning, the Court determined that abortion rights do not meet the legal test. Not only have abortion rights only been recently recognized, but abortion had been criminalised for the greater period following the adoption of the constitutional amendments.
This is a marked departure from the “living constitution” philosophy, which asserts that a country’s constitution should reflect the current mores and values of society. This viewpoint is in contrast with “constitutional originalism,” which is the belief that the constitution is to be interpreted in a way that reflects the original meaning when it was written.
In Canada, in the early years of interpreting the Canadian Charter of Rights and Freedoms, Chief Justice Lamer stated in Re B.C.: Motor Vehicle Act12, “If the newly planted ‘living tree’ which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt its growth”13. The “living tree” doctrine14 is how the Constitution and the Charter are interpreted in Canada. We view a constitution as organic, that must be read in a broad and progressive manner to adapt it to the changing times.
This is contrary to the United States where there has been, and continues to be, strong opposition by some judges to the living constitution doctrine.
For example, Justice Clarence Thomas has routinely castigated the “living Constitution” doctrine. In one particularly strongly worded statement, he noted:
Let me put it this way; there are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial15.
In Dobbs, SCOTUS rejected the notion of the constitution as a living document, capable of evolving to appropriately reflect the current values of society. Its approach deliberately seeks to determine the rights of individuals in 2022 by reference to the values that were widely accepted decades and centuries ago and adopts the originalism doctrine of constitutional interpretation. This is a rationale that has been explicitly rejected in Canada.
The SCOTUS majority opinion may serve as a basis for reconsidering whether any of the rights announced in this Court’s substantive due process cases in the past are “privileges or immunities of citizens of the United States”16. Justice Thomas’ conclusion is that “we should eliminate [substantive due process] from our jurisprudence at the earliest opportunity”17.
Is abortion legal in Canada?
Abortion in Canada is legal at all stages of pregnancy, no matter the reason, and is publicly funded as a medical procedure. Access to abortion services and resources varies across the country, and some non-legal barriers continue to exist. That said, Canada has no criminal restrictions on abortion.
This was not always the case. Banned in 1869, for a hundred years, abortion was minimally legalized in 196918 under condition that a committee of doctors certified that continued pregnancy would likely endanger a woman’s life. In 1988, the Supreme Court of Canada (SCC) ruled, in the second Morgentaler case before it19, that the existing law was unconstitutional and struck down the impugned provisions of the 1969 Act. The SCC ruling found that the 1969 abortion law violated a woman’s right to “life, liberty and security of the person” guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms established in 198220. There was no single majority judgment in the 5-2 decision21.
Following the 1988 SCC decision, the federal government attempted to enact abortion legislation. It tried to find a compromise solution between offering easy access to abortion in the early stages of pregnancy and criminalizing late term ones, and on the other hand, it presented a Bill that would ban all abortions unless a doctor ruled the woman’s life or health would be threatened. These attempted legislative changes were unable to get through the House of Commons and the Senate.
No subsequent government has re-visited the 1988 SCC decision, which has led to the unique situation of Canada having no abortion law. Abortion is treated like any other medical procedure, governed by provincial or territorial and medical regulations.
Later cases relating to abortion have not challenged the right to abortion directly, although the “interests of the fetus” have been the subject of litigation. The SCC relied on the “born alive rule” from English common law to determine that the fetus was not a person22. Therefore, someone who had undergone an abortion cannot not be charged with murder, and someone else cannot seek to be guardian of a fetus.
The 1989 SCC decision Tremblay v. Daigle23 was highly publicized. Daigle’s former boyfriend, Tremblay, had obtained a restraining order to prevent her from having an abortion. This order was obtained in the province of Québec but was legally restricting across Canada. The SCC ruled that only the woman could make the choice; the man had no legal say in a woman’s choice to terminate a pregnancy or carry it to term.
Two subsequent SCC decisions addressed the “interest in the fetus”24. However, the right to abortion in Canada has remained untouched. A person may decide to obtain an abortion, and it is their choice alone.
If we limit this question to the near future, the answer is a clear “no.” There is no current challenge to a person’s right to an abortion before the courts in Canada.
Legal and risk management considerations when providing abortion services to U.S. citizens who currently reside in the US
The Canadian government has stated that it is open to American women seeking surgical abortions north of the border27. In fact, Public Safety Minister Marco Mendicino ensured Canada Border Services Agency entry guidelines are clear, so that women who may not be able to access healthcare including access to abortion are able to come to Canada28. The effect of U.S. citizens seeking abortion care in Canada could be especially impactful to near-border regions.
In Canada, abortion is treated like any other medical procedure, governed by provincial or territorial and medical regulations. Depending on the extent of the prohibition in the patient’s U.S. state of residence, the abortion service could take the form of a medical or a surgical abortion (collectively referenced as “abortion services” in this section).
When considering whether to offer abortion services to non-Canadian residents, we invite you to take into account the following considerations.
- Different considerations would apply if the U.S. citizen were in Canada for reasons other than for receiving healthcare and were residing in Canada for an extended period (under a work or student visa, for instance); should you require advice in these circumstances, please contact the CNPS for assistance.
- This is not an exhaustive list of the risk management considerations related to the provision of abortion services to U.S. residents. Should you decide to provide or participate in the provision of these services, please contact the CNPS for further advice.
- Different considerations apply if a pregnancy is terminated because the fetus is not viable. Please contact the CNPS for assistance if you have questions regarding these circumstances.
Legal proceedings and liability protection considerations
Does the facility where abortion services will be rendered to non-Canadian residents provide professional liability protection for the nurses involved in the provision of these services, if claims are commenced in the U.S.? A non-Canadian resident who considers that they have been harmed in the provision of healthcare services received in Canada could decide to initiate litigation in their state of residence, rather than in Canada. While it may seem that a patient would be less inclined to initiate litigation if they continue to reside in a state where abortion is criminalized, this may not dissuade everyone.
- CNPS beneficiaries are eligible for assistance up to $10M per claim for the defence of claims and legal actions for claims, commenced in Canada, arising from nursing services rendered in Canada which are not adequately covered by the employer29.
- The risk of a legal proceeding commenced in the U.S. may be greater if the services or part of the services are provided while the patient is physically located in the U.S. (follow-up care, for instance).
- The risk of an action being commenced outside of Canada in relation to healthcare services rendered in Canada can be reduced by asking the patient to sign a “Governing Law and Jurisdictional Agreement”, in which the patient will recognize that the therapeutic relationship is governed by the laws of Canada. Healthcare facilities can access a sample “Governing Law and Jurisdictional Agreement” here. All nurse practitioners and nurses who operate as independent contractors and require a personal “Governing Law and Jurisdictional Agreement” should contact the CNPS to request a customized agreement.
- CNPS professional liability protection does not generally extend to litigation commenced outside of Canada. Where medically necessary services are provided in Canada to a non-Canadian resident, the CNPS may, subject to certain conditions, extend assistance to convince a court sitting outside of Canada to decline jurisdiction so that the matter could be litigated in Canada. However, this does not extend to all circumstances, and generally not to circumstances where (i) a non-Canadian resident is coming to Canada for the purpose of receiving healthcare services or (ii) the non-Canadian resident’s presentation for care was because of soliciting or advertising to patients outside Canada. Accordingly, nurses who are involved in the provision of abortion services to non-Canadian residents should obtain written confirmation, from the facility where these services are to be provided, that they are covered under the facility’s insurance policy and that the coverage extends to actions commenced outside of Canada. They should also be informed of the amount of coverage in the U.S. to ensure that it is adequate.
- CNPS beneficiaries are eligible for assistance up to $10M per claim for the defence of claims and legal actions for claims, commenced in Canada, arising from nursing services rendered in Canada which are not adequately covered by the employer29.
Does the law which criminalizes abortion in the state where the patient is located also criminalize the provision of abortion services by healthcare practitioners? Has the hospital, clinic or facility sought legal advice related to this risk, as it applies to its staff and its independent contractors?
It would be necessary to carefully consider the laws of the state where a U.S. patient resides to adequately assess the risk of a criminal prosecution against a Canadian healthcare provider who participated in the provision of abortion services. A law that criminalizes abortions could well extend not only to a patient seeking abortion, but also to practitioners providing abortion services. We cannot eliminate the possibility that efforts would be made to charge a Canadian healthcare provider if the healthcare provider is deemed to engage in an illegal activity in the U.S. or against a U.S. citizen. This may be a significant consideration for any nurse contemplating travel in the U.S. state in question or living in a border town and frequently crossing into the U.S. state.
In addition, the boundaries of where nurses practising may be more difficult to delineate if services are provided by way of virtual care or are otherwise deemed to cross national boundaries.
Please note that the CNPS does not provide advice with respect to U.S. laws and CNPS assistance does not generally extend to criminal charges outside of Canada.
Could nurses providing abortion services in Canada be compelled to appear as witnesses in a U.S. legal proceeding with respect to the provision of abortion services?
Compelling the attendance of a Canadian witness or documents generated in Canada and located in Canada would generally require the collaboration or the endorsement of Canadian authorities. However, to the extent that healthcare information in some facilities is maintained in a cloud-based application on servers located in the U.S., it may be that some of this information may be more easily compellable, unless measures are adopted by the U.S. federal government to restrict access to personal information.
CNPS assistance generally extends to proceedings or other legal measures undertaken in Canada to compel attendance as a witness or production of documents in a U.S. proceeding. Should these efforts be successful, however, CNPS assistance will generally not extend to representation before U.S. courts or in relation to U.S. proceedings.
Providing abortion services on a volunteer basis does not reduce the risk of being involved in a legal proceeding.
Would all or any part of the service be provided by way of virtual care?
- If some aspects of the healthcare services are provided virtually while the patient is still in the U.S., the state laws where the patient resides should be reviewed to determine if the services will be considered to fall within the definition of nursing practice in the state where the patient is located. State laws may prohibit the provision of health services virtually without holding a practising license issued by that state.
- If the provision of virtual nursing services is considered to fall within the definition of nursing practice in the state where the patient is located, would U.S. law enforcement authorities consider that healthcare professionals participating in the provision of abortion services by way of virtual care are subject to state law and are acting directly in contravention of the abortion laws of that state?
- Even if the virtual provision of abortion services would not fall within the definition of nursing practice in the state where the patient is located, would the conduct still be considered to contravene the abortion legislation in that state? This may be the case, for instance, if the legislation makes it illegal to procure an abortion or to counsel a patient to obtain an abortion.
In the case of a medical abortion, how will the U.S. resident access the medication?
- The pharmacist in the state where the patient resides may well not be permitted to issue medication in contravention of abortion laws or simply because they have been issued by a Canadian authorized prescriber.
- Canadian pharmacists are generally not authorized to issue and deliver prescriptions across Canadian borders directly to individual patients.
- There may be restrictions on transporting medication into the U.S. or a specific state pursuant to federal U.S. legislation or the specific state law.
What are the arrangements for pre and post procedure care when the client is not in Canada and not in a Canadian facility? Will the patient be able to seek medical assistance in the event of a complication surfacing once the patient returns home? Is there a risk that the patient would avoid or delay seeking medical attention for fear of criminal prosecution?
Will electronic information be exchanged with a U.S. resident that could subsequently be accessed by state law enforcement authorities to initiate legal proceedings against that resident? Are the healthcare records of the Canadian facility maintained in Canada or in the U.S.?
- If electronic documentation is exchanged with a U.S. patient by text or email, and the patient uses a cell phone or data service provider located in the U.S., consideration would have to be given to the specific laws in the state where the resident is located to determine if access to abortion services outside of the state would contravene state laws and whether the patient’s personal cell phone or data could be accessed to support a prosecution.
- Legal and regulatory documentation standards applicable in the province or territory where the nurse or nurse practitioner is located continue to apply, notwithstanding any concern that attempts may be made to access those records by law enforcement authorities outside of Canada.
- If the health records relating to the provision of abortion services in Canada are maintained using a cloud-based application, they may be maintained on servers located in the U.S. This may only be elicited by consulting the office or facility’s IT expert overseeing the management of personal health information. It may be that records located in the U.S. would be more easily accessible to law enforcement authorities in the U.S.
How does the facility or healthcare professional intend to communicate the availability of abortion services to U.S. citizens?
- Advertisement of abortion services in the U.S. may contravene abortion laws in the state where the patient resides. It may also limit access to professional liability protection or coverage in respect of those services. It would be important to discuss with the professional liability protection provider whether publicly indicating on a Canadian website the availability of abortion services to U.S. citizens might compromise access to professional liability protection in the event of a claim.
- Notwithstanding that it is legal in Canada, abortion remains a sensitive and contentious issue. In recent years, as the number of contacts or “friends” have continued to expand, some regulatory bodies have scrutinized the use of social media as a public communication tool notwithstanding those settings may be set to “private”. Nurses are at risk of complaints to regulatory bodies when using social media to share emotional reactions on health-related issues.
Particularly at this time, when in many settings, healthcare resources are limited, would the provision of abortion services to U.S. citizens compromise access to Canadian residents?
Is the facility where abortion services are provided owned by a healthcare professional? If not, the nurse may have greater legal and professional obligations to ensure compliance with the appropriate regulatory framework.
Does the clinic, facility, hospital have a written policy about providing abortion services to non-Canadian residents? Does the policy address the questions raised in this section?
Any provision of abortion services in Canada to U.S. citizens would require, as a first step, a careful examination of the laws of the state where the patient is located to determine the potential legal implications for Canadian healthcare providers and their U.S. patients.
Nurses and nurse practitioners who are involved in the care of U.S. citizens who are specifically seeking abortion services in Canada require another form of professional liability protection or coverage that specifically extends to legal proceedings initiated in the U.S. The coverage should extend to both civil and criminal proceedings, keeping in mind, of course, that a defendant in a criminal proceeding must personally comply with any sanction that may be imposed as a result of these proceedings.
CNPS beneficiaries who have additional questions regarding the provision of abortion citizens to non-Canadian residents or who would like advice as to how to raise these issues in their workplace can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.
This section contains information about recent U.S. developments. CNPS legal counsel are not licensed to practice U.S. law. The information contained in this section is presented for information only as a summary of the decision and is not intended to provide any legal advice on U.S. law.
Dobbs v. Jackson Women’s Health Organization, No 19-1392 (2022)
Roe v. Wade, 410 U.S. 113 (1973)
Dobbs v. Jackson Women’s Health Organization, at page 1.
Dobbs, No. 19-132, at page 1.
Doe v. Bolton, 410 U.S. 179 (1973)
Supra, note 4.
This point is highlighted in the dissenting opinion: Dobbs, No. 19-132 dissent, at page 26.
Supra note 4, at page 12.
Re B.C.: Motor Vehicle Act,  2 SCR. 486
Ibid, at para. 53.
Edwards v. Canada (AG),  UKPC 86.
Clarence Thomas, 2008 Wriston Lecture to the Manhattan Institute: Judging in A Government By Consent, 2008.
Dobbs, at page 7.
Ibid, at page 7.
Criminal Law Amendment Act, S. C. 1968-69, c. 38, s.18.
R. v. Morgentaler,  1 SCR 30.
Chief Justice Dickson, Justice Beetz, and Justice Wilson all wrote decisions finding the law to be unconstitutional, for varying reasons of support. Justice McIntyre wrote the dissenting opinion.
Tremblay v. Daigle,  2 SCR 530.
Dobson (Litigation Guardian of) v. Dobson,  2 SCR 752; Kamloops v. Nielsen,  2 SCR 2.
Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Ibid, at s 28.
Ibid. June 20, 2022
Please consult https://cnps.ca/services/plp-core/ for further details.
Please consult the Supplementary Protection program terms of eligibility at https://cnps.ca/services/regulatory-complaints/.
Published July 12, 2022.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.