In Canada, the criminalization of abortion was abolished by the Supreme Court in the Morgentaler case in 1988: “Forcing a woman, under threat of criminal sanction, to carry the fetus to term, unless she fulfills certain criteria independent of his own priorities and aspirations, is a profound interference with his body and therefore an attack on the security of his person. »
Posted yesterday at 11:00 a.m.
Through convoluted bills or administrative practices, certain elected Conservatives (federal and provincial) are trying to reduce women’s safety. If the criminalization of abortion were to be reborn from its ashes, our Supreme Court would necessarily be seized of the dispute. What would be the legal impact of the Morgentaler judgment?
Favorable to the predictability of the law and fair justice, respect for precedent repels arbitrariness. Exceptionally, and for compelling reasons, the Supreme Court may revoke a previous decision. However, the advantages must clearly outweigh the disadvantages. A precedent can become inappropriate and the evolution of the law, weaken its correctness.
At first glance, the Morgentaler precedent seems unalterable…unless the federal legislator mentions the derogatory provision of the Canadian Charter allowing a woman’s right to security to be circumvented. How to predict the future?
If the Canadian Constitution does not authorize the provinces to sanction an abortion, the American political system allows the federated states to do so and to adopt criminal sanctions. Under religious blaze, conservative Republican elected officials are busy proscribing the right to abortion in states and severely punishing any participant in the crime.
At the federal level, paralyzed by a robust pro-life senatorial phalanx, the Biden administration appears handcuffed. Any national law recognizing the right to abortion by the House of Representatives would be cynically blocked by the Senate. Congress being frozen, the Supreme Court had free rein to impose its law.
Decline of a well-established precedent
In theory, the principle of precedent protects the security of the legal order and supports citizens’ trust in judicial institutions. Contaminated by political partisanship, the recent majority judgment of the United States Supreme Court on abortion painstakingly debunks a long-established legal precedent.
During the Senate confirmation process for Justices Kavanaugh, Gorsuch, and Barrett, the former two clearly characterized Roe v. Wade of permanently established precedent. They have recognized the importance of this overriding rule of law for half a century. Although Judge Barrett has publicly shown her opposition to abortion, she has never spoken about her intentions.
Architect of the recent majority judgment on abortion, Judge Alito engineered his destructive plan over a long period of time. Perfect careerist in the administration of President Reagan, this Catholic conservative had written on an employment form: “I firmly believe that the Constitution does not protect the right to abortion. »
Acting out
In a legal opinion concocted in 1985 on the conformity of laws regulating abortion in two states, the approach of civil servant Samuel Alito was intended to be strategic. Given the makeup of the Supreme Court at the time, the overturning of the fetish Roe v. Wade seemed unlikely to him. It was better to wait for new blood at the high court.
During his appointment as judge, the named Alito reassured the senators on abortion. For a long time, he displayed a devastating approach to the previous Roe. Nevertheless, he testified serenely, while rejecting the profile of pro-life ideologue. In short, the new judge said he had an open mind.
The recent split judgment of the Supreme Court of the United States ousts the right to abortion. He lets filter the aggressiveness gnawing the judge Alito, from where certain inopportune comments. The Roe v. Wade would, he says, be manifestly wrong and would have harmful consequences, to the point of inflaming social debate and short-circuiting the democratic process.
Since women represent 51% of the population, noted Magistrate Alito, they can defend their life choices within the political process of the federated states. No need for the Roe judgment to protect them. It is a distorted mirage of sectarian, puritanical democracy.
For more than a decade, Judge Alito kept a low profile. For having stealthily prepared his coup de Jarnac, he is now magnified by a large phalanx of bigots.
To each his singer!