Abortion Rights Without Law: A Constitutional Reflection

Abstract

Abortion rights in Canada seem both too small and too big for law, or perhaps we only think so because of how we think about law, which confirms the view that we are better off without it. Maybe then we should ask a different question: is there an abortion rights law to which we would say yes? Can we imagine a statutory scheme, or, more provocatively, a legislative package, with a radically reimagined role for the state and its power? Could law assemble the diverse experiences of abortion into something material rather than abstract? Could law create a care infrastructure to support people in all their reproductive decisions and throughout their reproductive lives: the right to end a pregnancy, the right to continue one, and the right to parent your child in a safe and healthy environment? Wouldn’t we say yes to a law that holds space for this political future? In Canada, this is no speculative imagination. Our Supreme Court accepts that constitutional futures can take shape in innovative laws that affirm and reach ahead to our political aspirations. We need only make them.