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Parent, Jonathan --- "Institutional norms, Parliament, and the courts: explaining the absence of abortion restrictions in Canada" [2019] ELECD 2331; in Sterett, M. Susan; Walker, D. Lee (eds), "Research Handbook on Law and Courts" (Edward Elgar Publishing, 2019) 173

Book Title: Research Handbook on Law and Courts

Editor(s): Sterett, M. Susan; Walker, D. Lee

Publisher: Edward Elgar Publishing

Section: Chapter 12

Section Title: Institutional norms, Parliament, and the courts: explaining the absence of abortion restrictions in Canada

Author(s): Parent, Jonathan

Number of pages: 13

Abstract/Description:

Canada is the only Western democracy that currently lacks any restrictions on access to abortion services, a status that has existed since the country’s Supreme Court struck down the relevant statute in the landmark case of R. v. Morgentaler in 1988. Following that decision, Canada’s Parliament failed to pass a revised law that would have survived judicial scrutiny despite apparently broad support for such a measure among legislators. How this unique position was reached has much to tell us about interbranch relations and the critical role that structural changes and longstanding norms can play in driving policy outputs. To the extent that separation of powers models derived from the American system seek to provide insight into the relationships between the legislative and judicial branches, this study suggests that institutional features unique to particular national contexts can have a profound impact on the ways in which branches of government interact with each other. Using a process tracing approach examining the major court decisions treating abortion in Canada and records of parliamentary debates and cabinet meetings, this chapter demonstrates that norms such as parliamentary supremacy and the introduction of the Charter of Rights and Freedoms in 1982 altered the behavior of policy makers in such a way that they were ultimately unable to craft policy that most actors nevertheless desired.