Research Handbook on Law and Courts
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Research Handbook on Law and Courts

Edited by Susan M. Sterett and Lee D. Walker

The Research Handbook on Law and Courts provides a systematic analysis of new work on courts as governing institutions. Authors consider how courts have taken on regulating fundamental categories of inclusion and exclusion, including citizenship rights. Courts’ centrality to governance is addressed in sections on judicial processes, sub-national courts, and political accountability, all analyzed in multiple legal/political systems. Other chapters turn to analyzing the worldwide push for diversity in staffing courts. Finally, the digitization of records changes both court processes and studying courts. Authors included in the Handbook discuss theoretical, empirical and methodological approaches to studying courts as governing institutions. They also identify promising areas of future research.
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Chapter 12: Institutional norms, Parliament, and the courts: explaining the absence of abortion restrictions in Canada

Jonathan Parent

Abstract

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.

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