In the Roe v. Wade decision in 1973, the Supreme Court of the United States rendered invalid the duly-passed statutes, relative to abortion, enacted in 43 states, thus opening the way for over 19 million abortions.  Of the nine Supreme Court Judges only two dissented: Mr. Justice J. Rehnquist (the recently-nominated Chief Justice of the Supreme Court), and Mr. Justice J. White.  This decision was immediately followed by loud political outcry and over the years it has been the target of devastating criticism from legal experts.  Since 1973, there have been numerous attempts by State Legislatures and by Federal Congress to restrict the application of the Roe decision.

It can be argued, quite rightly, that the decisions of the Untied States Supreme Court are irrelevant in Canada.  However, it is in fact that in both the hearings before Morgentaler trial in Toronto, and later in the crown appeal to the Supreme Court, Court of Appeal, Morris Manning (the counsel for Morgentaler et al) used the Roe v Wade decision as a basis for much of his argument against the present law in Canada.  It is in this context that the most recent decision of the United States Supreme Court is of great importance to Canada.

Chief Justice Burger

Chief Justice Burger was one of the seven judges who concurred with the Roe decision in 1973.  However, in the most recent decision (Thornburgh v. American College of Obstetricians and Gynecologists, June 11, 1986), he bitterly criticized the pro-abortion opinion of the five majority judges.  He said that the concerns which the dissenting judges expressed in the Roe decision (and which he himself to some extent, had shared), have now been realized, and he made it very evident that he believes that Roe should be re-examined.

If any credence is to be given in Canada to the arguments in Roe v. Wade, it is clear that Chief Justice Burger’s present opinion will be important. For this reason we are giving his dissent in full.

Informed consent

The Pennsylvania Abortion Control Act of 1982, signed by Governor Thornburgh, stated that the requirements that a woman give her “informed consent’ to an abortion included that she should be informed

  • of the name of the physician who would perform the abortion,
  • of the particular medical risks of the abortion procedure and of carrying the baby to term,
  • that there may be “detrimental physical and psychological effects.”
  • That medical assistance benefits were available for pre-natal care, childbirth and neonatal care,
  • Of the development of the fetus, and of alternatives to abortion.

Other sections of the Act said that in post-viability abortions the physician must exercise the degree of care required to preserve the health and life of the unborn child, and further that a second physician should be present when viability is possible to ensure that reasonable steps are taken to preserve the health and life of the child.

Five members of the Supreme Court held that this Act, which had been passed by the House and Senate of Pennsylvania, was unconstitutional.  Four members, Chief Justice Burger, and Justices White, Rehnquist and O’Connor dissented.