Patrick Moreau is a professor of literature in Montreal, editor-in-chief of the journal Argument and essayist. He notably published These words that think for us (Liber, 2017) and contributed to the collective work edited by R. Antonius and N. Baillargeon, Identity, “race”, freedom of expression, which has just been published in PUL
There has been a lot of talk for a few days about the invalidation of the judgment Roe v. wade by the Supreme Court of the United States, and we will talk about it for a long time. This judgment marks a historic setback for women’s rights in our southern neighbours. It does not make terminations of pregnancy illegal across the federation, but, by ceasing to recognize the right to abortion as a constitutional right, it gives back to the various states the possibility of legislating on this question. It is clear that many will not deprive themselves of it; already, some have announced their intention to ban abortions on their territory. Ultimately, this will primarily penalize women from underprivileged backgrounds, some of whom will be financially unable to change state in order to undergo a pregnancy termination. It is something heard.
There is however an angle from which this judgment of the Supreme Court is almost not approached, and which would however be the most instructive, especially outside the United States: it is the political angle. What in fact allows this deconstitutionalization of the right to abortion? This invalidation in 2022 of the 1973 judgment is only made possible by the functioning of American democracy, which submits the laws of the various States to respect for the Constitution of the United States, of which the nine judges of the Supreme Court are the only authorized interpreters.
However, it is obviously difficult to take certain decisions such as the legalization of abortion or the limitation of the right to possess a weapon on the basis of a text drafted for the most part at the end of the 18th century.e century. It must also be recognized that, in this perspective, the judgment Roe v. wade of 1973 was not very solid, since it was based on a principle, respect for private life, which is not enshrined in the said Constitution. To counter this difficulty, the majority judges at the time derived this new constitutionalized right to abortion from the Fourteenth Amendment passed in 1868, which intended to protect the rights of former slaves who became citizens after the abolition of slavery.
Contested from the outset, not only by opponents of abortion, but also because of the fragility of its legal foundations, which made many fear an arbitrariness of the decisions of the magistrates, Roe v. wade thus contributed to politicizing the decisions of the Court. He revived the specter of a “government by judges” that dated back to the New Deal, when social measures taken by Roosevelt to end the Great Depression of 1929 were systematically vetoed by a then-conservative Supreme Court.
The problem with this politicization of the Court is that a decision taken by a majority of judges, who have shown themselves to be very inventive in interpreting the Constitution, can be overturned fifty years later by a new majority. From this point of view, the invalidation of Roe v. wade appears as an afterthought victory for Donald Trump, who was able, during his term, to appoint three judges to the Supreme Court, thus tilting the majority in favor of magistrates appointed by Republican presidents (six against three).
And since nothing obliges the magistrates appointed to the Supreme Court to retire, we can expect that this Court will take many other controversial decisions in the future.
Could such a scenario happen right here in Canada? Although the Canadian media often pretend to believe that the Ottawa Supreme Court is not politicized, unlike its alter ego of Washington is obviously an illusion. Judges are appointed by the Prime Minister and belong, as in the United States, to the ideological movement of the ruling party.
It would therefore be entirely possible that in the future a conservative government with reactionary tendencies would appoint a majority of magistrates who were won over to its ideas. We can bet then that these new “wise men” would certainly be able to take advantage of as much latitude as their predecessors to interpret the Constitution and the Charter of Rights and Freedoms and to invalidate certain previous decisions as well as democratically voted laws.
Those who, in Quebec as in Canada, are rightly devastated by this recent decision of the Supreme Court of the United States should therefore think twice before congratulating themselves when, in a few months, they see Bill 21 implemented. lint by the Supreme Court of Canada. Not that it is to be feared that a conservative Court will reconsider its decision and establish secularism in Canada (on this side, there is really nothing to fear and the non-secular nature of Canada is a consensus among both liberals than among the conservatives), but rather because they thus contribute to a politicization of justice and to an omnipotence of judges which undermines a separation and above all a balance of powers which are so essential to the proper functioning of ‘a democracy.
In the United States, as in Canada, the parties in power have long taken refuge under the umbrella of the rights defined by their respective Supreme Courts, so as not to have to legislate on certain questions which did not enjoy unanimous support, such as the abortion or gay marriage. This pusillanimous attitude largely explains why we are where we are today. Obviously, laws can also be modified or repealed, but this cannot be done in such a denial of democracy.