Poilievre, Roe, And What It Means For Canada

The Politics And Policy

I was almost the family member of a member of the Canadian Supreme Court.

Technically, I can say I was, given that Marc Nadon did technically get appointed to the Court, before issues arising from whether he counted as a “Quebec” Justice arose and he was booted. I’ve actually met the man – my mother’s first cousin – once in my life, at a funeral for his (and my mother’s) uncle, which I only attended so that my mother wouldn’t have to drive to and from Montreal alone, and so I could go to my favourite record store on Metcalfe.

I bring this up not as a flex – we sat in the basement of a west island funeral home for a couple of hours together and he would almost assuredly forget I exist if I ever met him again – but I say this to show my understanding of the Court, and its place in this country. I also say this as someone who skipped school in the 11th grade to watch the Court hear oral arguments in the Senate reform reference, which meant that I was interviewed three times that day – CBC and Radio-Canada for TV, and by a Canadian Press journalist. I have thought a lot about the Court, the role of Harper’s appointees on the Court, and the role of our two key institutions, the Court and Parliament.

All of this is just usually background info that I never get to use, because none of this matters usually in Canada. I couldn’t tell you how many of the 9 on the Court as of the Nadon Reference or Carter are still on it now, because these sorts of appointments don’t end up mattering much. With a Court in the mould of the Canadian one, partisanship isn’t rampant – or, at least, Conservatives suck at picking Justices with the brazenness to impose political views on the Constitution. By the end of his term, Harper had chosen 7 of the 9 members of the Supreme Court, and far from being a rubber stamp for Harper, they were his most effective opposition in the majority days.

We have all seen what happened in the US, and while it was fairly obvious where this was going since SCOTUS decided to take Dobbs, it is no more acceptable and no less heartbreaking. But, because of course it did, we decided to make this conversation about Canada, and Pierre Poilievre, instead of leaving the focus on what the US has just done.

I didn’t want to be writing this column yet, because it feels like us making this moment which is very not about us actually about us, but whatever. (My complaints and ill will do not extend to those pointing out access gaps here at home – that is valuable work that should be highlighted, and I should do a better job of retweeting, if I’m being honest.)

If Pierre Poilievre wins the next election, there will be no diminishment of a woman’s right to choose. If Pierre Poilievre wins a majority, there will be no diminishment of a woman’s right to choose. The reasons for this are about sixfold, and I’ll lay them out in a minute, but there is no risk this decade to abortion rights in this country. Would Poilievre be as willing to move on expanding access as I suspect Justin Trudeau will be in the next 3 years? Probably not, and if access is your main concern, then yes, Skippy will probably be worse than where we expect the Liberals to be. But if your concern is the right – the lack of criminalization and punishment for the act – then there is no short or medium term risk.

The reasons are crucial – at most there are ~60 pro-life Conservative MPs, if you assume that every MP who voted against the conversion therapy ban can be counted and that the new MPs are also SoCons, but it’s roughly fair to say about half the caucus might be the upper limit of pro-lifers. In 2012, 91 of a caucus of 167 voted for the motion to study when life exists, and some of those – including Poilievre – voted for that motion then and has subsequently voted against reopening the abortion debate. This is mostly consistent with where the party’s voters are in terms of temperament, with the party’s supporters splitting close to 50/50 on Biden/Trump, per a 2020 Leger/338 Canada poll.

The lower you turn the CPC vote – or, the combined CPC-PPC vote, more accurately – the more the share of Trump-supporting Canadian Cons goes, because the average LPC-CPC swing voter in Mississauga views the GOP as fascists and the Cons as okay largely because they aren’t like those psychos. The Harper-McGuinty-Wynne-Trudeau-Ford voters are all united on who they’d vote for in the US, so when those are voting for the Conservatives, then the party’s voters look more moderate. When the Liberals do particularly well in these areas, the voters left in the Tory pool are disproportionately western SoCons. The same thing applies with the caucus – the Tory membership in Oakville likely won’t nominate someone as right wing as the membership in Leduc, because in Oakville the average member is likelier less right wing, and the voters they need to win are pro-choice.

A theoretical Poilievre wave would probably see some more anti-choice Members in, but the chances it would hit 100 MPs is for the birds, but let’s game out some scenario where the Tories have an anti-choice majority. They’d need a whole lot of Senators appointed to retire fast, because they have no hope of having the votes to pass an abortion restriction through the Senate as currently constituted, let alone after 3 more years of Trudeau’s appointments. Would the Senate kill the bill? They did in in 1989 with the first one, so, yes they would.

Let’s say they got it through the Senate too, somehow, though – it would get tossed in two seconds by the first court that heard the challenge and be left on ice until it made its way to the Supreme Court, which would laugh the Government out of the room – if they even agreed to hear the challenge to the bill, which they might not even have to. Ah, but they can appoint Justices, I hear you say, but that would require almost ten years in power and lucky retirements, and everyone currently qualified to be a judge in this country would never find such a clear-cut Morgentaler violation constitutional for partisan reasons.

The argument for vigilance is “nobody thought they’d ever come for Roe, but if you thought that, that’s because you wanted to believe that, not because it was ever close to true. All of the things that were supposedly unthinkable was actually quite obvious – my reaction to Scalia’s death was “McConnell will never let Obama fill the seat”, because why the fuck would he? Trump promised pro-life SCOTUS nominees, and he got them. If you thought Roe was safe, it was because you did not want to believe people who explicitly told you their ambitions.

In Canada? Doug Ford has promised no changes to the law, Francois Legault has imposed a pro-choice litmus test for his candidates, and Newfoundland and BC both have left-of-centre Premiers, so there goes some fanciful notion of any constitutional amendment passing, as someone floated in my mentions. The idea of courtpacking should be robustly guarded against, but let’s be very clear about the limits of the risk here. It took 50 years for the right in America to overturn Roe. For the Canadian right to have the ability to overturn Morgentaler, it would probably take another 50.

If you want to use this as a reason not to elect Conservatives, do it, but know you’re playing politics with the rights of women. If that is worth it for you to try and beat Skippy, go right ahead – the supposedly pro-choice MP has still made no public comment on this since the decision dropped, and we are approaching 36 hours now – so unless he’s actually camping without his phones or internet, he’s staying silent because whatever he says now is a loss for him.

If he comes out for the decision, as one Conservative MP did, then he’s tossed the next election away. If he does what Brown and Charest have done and comes out for reproductive rights, then Leslyn Lewis has a lane with the membership. Silence isn’t edifying, but it’s his only chance to keep this tent alive until September 10th. If I know the Liberals as well as I think I do, the fall will see the Feds offering to cover Americans who come to Canada for abortions with direct transfers to provincial governments, plus federal funding directly to the Fredericton clinic, and some long term plan to reduce barriers to access over five years whose deadlines slip and slip further away because of bureaucracy. The Conservatives will have to, at some point, take a vote on abortion, and that vote will either see the PPC take advantage if Poilievre tacks to the centre, or it will ensure that the Liberals have this weapon for the next 3 years.

This is the thing about all of the people so convinced that Skippy will win – and I especially direct this to Frank Graves, who decided to condescend to me (in a conversation that I wasn’t in until someone else tagged me) that the commentariat always underestimates populism before blocking me when I correctly pointed out that the commentariat is almost uniformly “2025 is Skippy’s to win”. How the fuck does Poilievre keep the two ends of the Conservative coalition together when Scheer and O’Toole couldn’t? There are deep, gaping chasms between what Albertan, rural MPs want and what the prospective MPs in Mississauga and Scarborough want, and yet the commentariat thinks all of this can be waved away. It can’t. This is the reality of the next election, not Skippy’s ability to make good videos on social media that nobody except political tragics watch, especially to the end. The problem with Skippy is he is playing on easy right now, in the same way Adrian Dix was for the entirety of his leadership of the BC NDP before the 2013 election campaign actually started. Criticizing passport office failures and delays at Pearson are easy to do – it’s issue of the day stuff, basic, basic shit. Presenting as an alternative Prime Minister is really, really hard.

You want to talk about the politics of abortion? It’s a winner for the Liberals, because yes, it is a wedge issue for the Cons. Run as anti-choice, say goodbye to any chance in hell of winning. Take pro-choice votes on expansion of access, and the PPC takes 8% of the vote in 2025. Split down the middle and nobody’s happy. Don’t lie and say a Conservative government will be the end of Morgentaler and the end of choice in Canada, focus on access, and let the Conservative civil war continue.

The thing that people understate in determining election outcomes – and I definitely made this mistake in 2016 – is issue salience. It doesn’t matter if you agree with the Liberals on 7 of 10 issues if you agree with the Conservatives on the three you care about the most. Raising abortion up the salience rankings is a double edged sword – it will exacerbate the Liberal decline in Northern Ontario and solidify their hold on the suburbs. Pro-life voters might vote for a pro-choice Con leader if nobody cares about abortion as an issue, but if it’s a defining fight in the next three years, that will be harder.

I don’t think Skippy can win the next election. Many others disagree with that, and they’re fully within their rights to do so. But this – not his fucking social media skills, or his ability to get crowds now – will decide the next election, and the actual fundamentals point to a very very hard path ahead.