The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

free and democratic society, because it did not advance the state’s purpose of protecting maternal life and health. 145 Although the Morgantaler decision was highly controversial at the time, the Parliament of Canada never used the NWC to pass any law overriding the decision, and, arguably, because Parliament was given the final say in the matter, legalized abortion is no longer a subject of political contestation. By contrast, Roe v. Wade (1973) in the U.S. undermined state legislatures, prompted political polarization on the issue of abortion, and helped create a conservative political ascendancy that moved American political culture sharply to the right. 146 This led U.S. Republican Presidents to monographically nominate judges opposed to abortion rights and the U.S. Supreme Court eventually overruled Roe v. Wade in 2022, such that abortion is no longer a constitutional right in the U.S. 147 In 1989, the Supreme Court of Canada concluded that the Province of British Columbia’s requirement that all B.C. licensed attorneys be Canadian citizens violated Section 15 of the Charter that guarantees equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. 148 Unlike the U.S. Supreme Court, which has regressively applied the U.S. Constitution’s Equal Protection Clause, the Supreme Court of Canada concluded that section 15 of the Charter can be broadly applied to protect and promote substantive equality of opportunity for all. 149 This was the basis for the Court’s 1997 decision recognizing Native Canadian ownership of their ancestral lands prior to European conquest and its 1998 decision recognizing Indigenous treaty rights, including not only the text of the treaty but all its surrounding circumstances. 150 It then 145 Id. 146 Roe v. Wade, 410 U.S. 113 (1973) and Lincoln Caplan, Ginsburg’s Roe v. Wade Blind Spot, NYTimes.com (May 13, 2013, 2:58 PM), http:// takingnote.blogs.nytimes.com/2013/05/ 13ginsburgs-roe-v-wade-blindspot. 147 Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). 148 Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 149 Id. 150 Delgamuukw v. British Columbia. [1997] 3 S.C.R. 1010 and R. v. Marshall [1999] 3 S.C.R. 456

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