As Nova Scotia lawyers, we are dismayed by the recent decision of the Supreme Court of the United States in Dobbs v Jackson Women’s Health Organization, which represents a landmark step backwards for American law.
The majority in Dobbs overruled the Court’s previous decisions in Roe v Wade and Planned Parenthood of Southeastern Pa. v Casey, upending decades of established protection for the constitutional right to access abortion; harming the millions of people who are now deprived of access to a fundamental healthcare service; and exposing abortion seekers and providers, and their supporters, to criminalization. Notably, the end of Roe will have a disproportionate impact on people of colour, particularly Black women and trans people, as the Black Law Students’ Association of Canada has pointed out.
Dobbs is devastating reminder that law has the power to shape lives, for better or worse.
The Supreme Court of Canada’s 1988 decision in R v Morgentaler — which cited Roe v Wade — has been a positive force in Canadian law. In Morgentaler, the Court struck down the remaining Criminal Code provisions that limited abortion access, finding they were contrary to the Canadian Charter of Rights and Freedoms. Since then, abortion has been decriminalized across Canada and generally treated as an insured health service, with a robust web of protections for abortion access built into our health care system.
It can be tempting to celebrate the current state of Canadian law — and some aspects are certainly worth celebrating — without critically examining the flaws of our own legal system. But the truth is, Canada’s legal system has not stopped reproductive injustices from happening, including the forced sterilization of Indigenous women (the subject of a class action launched in 2018), and the practice of “birth alerts”, which the Nova Scotia government has only recently promised to end.
And, yes, barriers to abortion access still remain, including here in Nova Scotia.
Consider, for example, Cape Breton: while medication abortion (abortion using pills) is available throughout Nova Scotia, procedural (aka surgical) abortion is not provided anywhere on Cape Breton Island, so people must travel to the mainland to access care. Geographical barriers like this can lead to significant additional costs, including travel, accommodation, and childcare. (Abortion Support Services Atlantic is a local group offering support for these kinds of expenses.)
Less tangible but no less troublesome is the stigma around abortion that may still exist, which has led to reports of people being refused care in their home communities. Claims of “conscientious objection” from health professionals can also impede access — even though, as we interpret the law, objectors would have the duty to provide an effective referral to their abortion-seeking patients, or give patients information on how to self-refer.
The good news is that Nova Scotia has made great strides over the last five years. Abortion services, which are free for anyone with a valid health card, can now be accessed by calling the toll-free provincial self-referral line at 1-833-352-0719. A doctor’s referral is not required. (More information about abortion access in Nova Scotia can be found here, and information for other provinces and territories can be found here.)
This progress is real and important. But Dobbs still hangs over us: the movement for abortion rights is a global one, and such a massive setback in the US is rightly perceived as a threat to reproductive freedoms everywhere. As episode one of the Aborsh podcast recently pointed out, “because of cross-border cultural pollination, Canada often falls into step with American political trends. And that means we absolutely need to be talking about Canadian abortion rights.”
This brings us back to our responsibilities as Nova Scotia lawyers.
Our law society’s Code of Professional Conduct tells us we “should not hesitate to speak out against an injustice.” The decision in Dobbs is an injustice. It is also an opportunity to use our privilege as lawyers to safeguard and advance abortion access, and advocate on other pressing issues of reproductive justice, within our province and beyond. If a case like Dobbs ever makes its way into a Canadian court, we need to be ready.
So what can we do right now? We can refresh ourselves on the legal framework for abortion access in Canada and in Nova Scotia, correct misinformation about the availability of abortion, and push for expanded access to abortion pills (like making them available over the counter, and through online ordering). We can monitor legislative developments and litigation, and educate the public on what these developments mean. And, of course, we can confidently advise our clients on issues related to abortion care.
We call on our colleagues in the Nova Scotia Bar to show Nova Scotians, through words and actions, that their right to abortion access is respected and protected. Now is not the time to be complacent.
Julianne Stevenson and Jennifer Taylor are Nova Scotia lawyers and the authors of Access to Choice: The Legal Framework for Abortion Access in Nova Scotia (2020) and Self-Managed Abortion in Canada: A Status Report(2022). They wrote this open letter in their personal capacities.