Krauthammer falsely claimed U.S. is only Western country to legalize abortion "by judicial fiat"


Referring to Roe v. Wade, the landmark 1973 Supreme Court ruling legalizing abortion in the United States, Washington Post columnist Charles Krauthammer falsely claimed that the United States is the only Western nation that has "legalized abortion by judicial fiat rather than by the popular will expressed democratically." In fact, the Canadian Supreme Court declared Canada's abortion laws unconstitutional in 1988, leaving Canada without federal regulations on abortion.

According to a United Nations review (Microsoft Word document) of Canadian abortion laws, abortions were illegal under all circumstances in Canada prior to 1969, when the law was amended to permit abortions to preserve the life of the woman, Even then, abortions were permitted only in a hospital that had a "therapeutic abortion committee" and only after obtaining that committee's authorization. The U.N. review summarized the restrictions:

An abortion was required to be carried out by a qualified medical practitioner in an accredited or approved hospital that had a therapeutic abortion committee comprised of no fewer than three qualified medical practitioners (not including the one performing the abortion). The Committee was responsible for determining whether a specific abortion could be performed legally, how long into a pregnancy it could be performed, and whether a married woman had to obtain the consent of her husband, or a minor, the consent of her parents. A physician who performed an abortion in violation of the law could be sentenced to life imprisonment, and a woman who consented to an abortion to two years' imprisonment.

On January 28, 1988, the Supreme Court of Canada ruled in the case of R. v. Morgentaler that Canada's abortion restrictions violated the Canadian Charter of Rights and Freedoms, which states that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." According to the majority opinion of Chief Justice Robert George Brian Dickson and former Justice Antonio Lamer:

State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person. Section 251 [of Canada's Criminal Code] clearly interferes with a woman's physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person. A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established.

As a consequence of the court's decision, Canada currently has no federal laws restricting abortion. The Canadian government attempted to introduce new abortion restrictions into the Criminal Code in 1991 but, according to the U.N. document, "was unable to achieve a majority of Parliament members' approval for its proposal." The Toronto Star reported on February 1, 1991: "In a stunning move, the appointed Senate has defeated a government bill that would have put abortion back into the Criminal Code. The vote was 43-43, and under Senate rules that means defeat."

From Krauthammer's September 16 Washington Post column:

In our lifetime has there been a more politically poisonous Supreme Court decision than Roe v. Wade? Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even [Supreme Court Justice] Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.

Posted In
Government, The Judiciary, Health Care, Reproductive Rights
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