Drafts can change, but it’s likely U.S. Supreme Court justices will stand by their decisions on the basic question of whether Roe v. Wade stands or falls. Canada could be dragged into the turmoil over American abortion law in a number of ways.
It will pit states against states and laws against laws in a way not seen since the Civil War era, said Rachel Rebouché, acting dean of the Beasley Law School at Philadelphia’s Temple University.
“It’s the intensity of interstate conflict, groups of states that have a radically different vision of what justice requires, and what the scope of their power should be, and who are intent on having that vision realized,” she said.
Thirteen states have so-called “trigger laws” that would criminalize abortion the moment Roe ceases to be federal law. Thirteen more are believed likely to follow suit later. Some of those states with trigger laws lie on the Canada-U.S. border.
True “trigger laws,” such as Mississippi’s, were passed just recently. But a law that might have the most immediate effect at the border is over 90 years old.
Michigan passed a felony ban on abortion in 1931 — Act 328 — that is only in abeyance because of Roe v. Wade.
The state’s Republican-dominated legislature is unlikely to overturn that law and Democratic Gov. Gretchen Whitmer can’t veto a law already signed by another governor nearly a century ago.
The risk of an ‘international incident’
Both Whitmer and Planned Parenthood have sued to overturn Act 328. But their arguments depend heavily on rulings the Supreme Court now appears ready to reverse: Roe v. Wade and Planned Parenthood v. Casey.
Michigan residents seeking abortions will likely turn first to Illinois — but for a woman in Detroit, Windsor could be closer. The average cost of an abortion in Canada is also slightly lower than in many U.S. states.
Robert Currie is an expert on transnational criminal law at Dalhousie University in Halifax.
“I think there’s certainly a possibility that people will cross the border into Canada,” he said, “either to avoid criminal prosecution for having obtained an abortion or to be able to obtain one. In either situation, there’s the potential for it to create an international incident of some kind.”
An ‘abortion desert’ on the border
Like Ontario, large parts of western Canada are likely to find themselves across the border from states where abortion is restricted. North Dakota and Idaho already have trigger laws waiting to go into effect.
Red-state Montana, with its libertarian traditions, has bucked the trend of other Republican-controlled states, but access there is anything but secure.
Minnesota, where Democrats narrowly control the House and Republicans the Senate, also faces a strong challenge.
Some Americans seeking abortion services might find themselves much closer to Canadian facilities than to U.S. abortion providers.
“I think where travel is feasible, it will happen,” said Rebouché. “North Dakota, South Dakota is what many people think will become an abortion desert. It will depend on where is the cheapest place to get to and what are the impediments to getting there.”
Impediments might include not having a valid passport, she said. “Seventy-five per cent of abortion seekers in the U.S. are considered either low-income or ‘very poor’, living below the poverty line.”
The bans also could make things harder for Canadian women who currently travel to the U.S. for late-term abortions that, while not prohibited in Canada, are also not available in practice.
Justice Samuel Alito’s draft ruling on Roe v. Wade came in the case of Dobbs v. Jackson Women’s Health Organization, which centres on a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy.
The overthrow of Roe v. Wade would end a half-century period in American politics when the U.S. government could be expected to either officially support (Democrats) or officially tolerate (Republicans) legal abortion.
Currie said a Canadian online pharmacy that sells abortion pills to customers in the U.S. probably has little to fear from state laws.
But “it’s entirely possible that the U.S. might criminalize the shipping of those things as well as the ordering. So that raises the maybe remote, but real possibility that people engaging in perfectly legal conduct in Canada may be the subject of American extraterritorial criminal law.”
Rebouché said that many U.S. states have cracked down on telehealth prescriptions. “Nineteen states either explicitly ban it, or require some kind of in-person care and ultrasound counselling,” she said.
“But Canadian providers might be somewhat more insulated, because it’s going to be hard to drag a Canadian provider into court to subject them to U.S. laws.”
One of the thorniest areas is likely to be criminal prosecution of women, and of providers.
Rebouché said that states already are seeking to nullify one another’s laws.
“California is not just legislating to protect Californian citizens’ right to abortion in their own state, but also with an eye to the travellers who are not Californians who are going to come to the state,” she said.
“Missouri just this spring in anticipation of Dobbs was contemplating a bill that I think is going to become much more common, trying to attach Missouri abortion law to its citizens when they leave the state, and penalizing providers who provide abortion to Missouri citizens outside the state.
“This really strikes at the heart of the kind of cooperation and comity that states have had in the U.S., and it speaks to the divisions that are going to erupt that were the hallmark of the Civil War.”
Extradition: not going to happen
States that ban abortion can use extradition requests to pursue those accused in other states. “But importantly,” said Currie, “all international extradition requests are made at the federal level. So a state that wanted to prosecute somebody who had fled to Canada cannot make the request itself. It has to go through the U.S. Department of State.”
State Department lawyers, said Currie, know the extradition treaty requires double criminality. “It requires that the crime they’re requesting extradition for is also a crime in Canada. That not being the case in this situation, those American officials would most likely simply not make the request.”
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Refugee claims are another matter.
“In the Canadian view,” said Currie, prosecution for abortion “would be a breach of their internationally protected human rights. So there’s a lot of potential for cross-border traffic of that kind.”
Echoes of a violent era
As long as the federal government remains in the hands of the Democratic Party, states like Texas likely would have little recourse to pursue people out-of-state, for all of the extraterritorial claims advanced in its law.
But if Republicans return to power in the White House, the situation would change.
Even if abortion were not banned federally, new federal laws could give teeth to state laws that claim extraterritoriality and seek extradition. It has happened before.
The situation could resemble the years before the U.S. Civil War, when people fleeing slave states found refuge in free states that refused to hand them over.
Rebouché said she sees parallels today.
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“You’ll have states like Mississippi and Texas who ban abortion, ban it before six weeks,” she said.
“On the other hand, you’re going to have states like Connecticut, that’s already passed a law just waiting for the governor’s signature, or California, that are going to be proactive in just the opposite way — passing laws to protect providers, and to increase funding for abortion travel, becoming kind of that safe haven of abortion care.
“That starkness of position is going to intensify interstate conflict.”
In the 1850s, harsh interstate disputes escalated when the federal government and Supreme Court began to impose slave state demands and values on free states through the Fugitive Slave Act and the Dred Scott decision, empowering federal marshals to drag people across state lines back to slavery.
In the North, vigilance committees formed and some resisted U.S. marshals by force. There were dramatic rescues by large crowds overpowering federal officials. Vermont ordered state law officers to come to the aid of fugitives in open defiance of the federal statute. The effort to impose the South’s laws on the North only succeeded in pushing the country toward open conflict.
Throughout that turbulent period, the Underground Railroad carried people north to the only jurisdiction where they could really feel safe — Canada.
The Supreme Court draft ruling of 2022 does not allow states to interfere in each other’s jurisdictions. But the end of Roe v. Wade would open the door to changes at the federal level that could be more far-reaching than any state trigger law.