The US Supreme Court overturns Roe v. Wade: Key considerations for Canadian nurses

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.