How Roe Vs. Wade Changed Our Lives
Canada is like a jelly fish: its vital organs are outside its own body. Peter Brimelow made that observation in his great study of Canada, The Patriot Game. What he meant was the most important events in Canada's intellectual and cultural life occur outside Canada -- usually in the U.S. On Jan. 22, we observe the 25th anniversary of one of the most important of those exterior events: the decision of the U.S. Supreme Court in its famous abortion case, Roe vs. Wade.
I'm not going to belabor you with the familiar arguments about the rights and wrongs of abortion (although it is sobering to think that one out of every four U.S. pregnancies ends in abortion, according to the U.S. National Centre for Roe introduced a new approach to human rights into U.S. law; an approach we copied, utterly uncritically, when we The Roe decision did two startling things. First, it created a fundamental human right out of thin air. The 14th Amendment to the U.S. Constitution, adopted after the Civil War, forbids states to abridge anyone's 'life, liberty or property' without 'due process of law.' At the time of the Roe decision, that sentence was generally understood to mean a state could not do something bad to you unless it met certain standards of procedural fairness: it could not jail you, for example, without a fair trial. Roe reinterpreted the amendment. Instead of meaning the state must provide due process before abridging the citizen's But which liberties? After all, the most important liberties -- speech, religion, assembly, the vote, private property -- were already protected by the explicit language of the U.S. Constitution. And this brings us to the second startling For most of its first 200 years, the U.S. Constitution was understood to have nothing to say about these intimate matters. A state could outlaw adultery, fornication and sodomy if it wanted to (and most of them did). A state could Roe vs. Wade changed all that. Suddenly the vague word 'liberty' in the 14th Amendment was not so vague any more: it Both these changes hit Canada with special force. Our judges are even more willing than U.S. judges to strike down laws because they 'offend basic principles of justice' -- even if they do not offend any specific provision of our Constitution. And they have attacked traditional sexual norms even more zealously than U.S. judges, while turning their backs even more blatantly to the protection of ancient rights like property and speech. And when they do both, it is Roe vs. Wade that inspires them. In the U.S., the 25th anniversary of Roe vs. Wade will be an important event. Here it will pass largely unmarked. Yet Originally published in The Financial Post
Health Statistics). What's important for Canadians about Roe vs. Wade is not what it did to abortion in the U.S., but what it did to the law in Canada.
adopted our Charter of Rights & Freedoms in 1982. It might fairly be said that Roe vs. Wade is the foundation of Canadian constitutional law.
liberty, the amendment was now read to mean there were certain liberties that could never be abridged -- no matter how fair a process the state provided.
thing Roe did. It redirected the attention of the courts to an entire new field of human behavior: sex, marriage and the family.
choose to tax unmarried persons more heavily than married (and most of them did). A state could choose to forbid illegitimate children to inherit if their father died without a will (and most of them did). These might be sound policies or they might be foolish, but they were left up to the democratic majority within each state. If you disagreed with one of these laws, it was your obligation to persuade your fellow citizens to alter them. There was no point asking the courts for help. They would say to you: nothing in the constitution prevents a state from adopting an adultery law or favoring married people over unmarried. And if the constitution doesn't stop a state from doing something, then the state may. We are here to enforce the law. We are not here to function as nannies to the electorate, slapping their hands whenever they reach for something that isn't good for them.
was a charter of power to the courts to strike down any state-imposed restrictions on individual sexual conduct. With Roe, U.S. judges assumed sweeping new powers -- the power to strike down laws on the basis of abstract principles, rather than the language of the constitution. Second, it reoriented judges away from their concern with such liberties as speech, religion and private property to a new preoccupation with sexuality.
we, even more than the Americans, are ruled by it.