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The Roe v. Wade Panic – Spotlight on Abortion in Canada

By Athina Pantazopoulos



With the overturning of Roe v. Wade in the USA this summer, a lot of eyes have turned to Canada as the perceived safe space for reproductive health services in North America. Americans have made tongue-in-cheek comments about emergency “camping trips” to the North, while some concerned Canadians have worried over whether legal access to abortion should be cemented in legislation to prevent a similar criminalization within Canada.


By looking at both the history of abortion in Canada, as well as the current state of access to abortion services, we can see that neither of these views accurately depict the state of abortion in Canada today.


History


Prior to the colonization of Canada, many First Nations in North America, including the Blackfoot Nation, used medicine to prevent and end unwanted pregnancies. This precursor to “modern” medical abortion was a normal part of medicinal practice in several Nations across the country.


With the arrival of colonial powers and the confederation of Canada, the Canadian legal system adopted and imposed the criminal restriction on abortion under law of the United Kingdom, and adopted its own criminal restrictions to abortion with the creation of the Canadian Criminal Code. Prior to 1969, it was a crime to either induce or undergo an abortion in Canada.


The first step towards decriminalizing abortion came in 1969 when the Criminal Code was amended to provide an exception for abortions performed in a hospital and approved in advance by a three-doctor abortion committee who ruled that the continuation of the pregnancy would endanger the life of the pregnant person. This exception provided very limited access to abortion, as 1) it was only a very narrow exception, and 2) many hospitals did not have an active three-doctor abortion committee.


By this point in Canada’s history, abortion was becoming an issue of some discussion, with groups on both sides of the issue speaking out. Feminist activist groups openly protested the criminalization of abortion.


It is in this climate that Doctor Henry Morgentaler opened his clinic. Doctor Henry Morgentaler operated a private clinic in the sixties and seventies where he performed a number of family planning procedures, including performing vasectomies, providing contraceptives, and performing illegal abortions. Morgentaler was arrested in 1973 but was eventually acquitted. When he returned to his practice, he opened a new clinic in Toronto, resumed offering abortions, and was once again arrested. This second criminal prosecution, like the first, was appealed up to the Supreme Court.


Unlike Morgentaler’s first conviction, the second conviction came after the Canadian Charter of Rights and Freedoms had come into force, and Morgentaler was able to advance a new defence that challenged the law directly for being inconsistent with the Charter. The Supreme Court of Canada found in 1988 that the section of the Criminal Code regulating abortion services violated section 7 of the Charter of Rights and Freedoms – the right to life, liberty, and security of the person. This section of the Criminal Code was struck and was no longer binding in Canadian Law.


It is crucial to note that the Supreme Court decision never indicated that abortion was a protected right under the Charter, only that the system in place regulating access to abortions under such limited conditions was inconsistent with the Charter and must be struck down. This distinction is important. While abortion is not illegal in Canada, it also does not have a protected status.


There were efforts to pass laws restricting abortion in Canada in the 1990s and mid-2000s, but none were passed.


Current Status


In its current status, abortion has been decriminalized as a result of the criminal restrictions on abortion being struck down. These restrictions were never replaced by any other form of legislation regulating abortion service, and because of this, there is no federal law in Canada that is specific to the regulation of abortion.


Abortion is therefore treated as a standard medical procedure, funded by federal transfers under the Canada Health Act and governed by provincial medical regulation. Because of this, provinces across Canada have wildly varied approaches to the treatment of abortion and wildly varied access to abortion services.


Some of the challenges to accessing abortion in select provinces is highlighted below.


New Brunswick

While funding for health care services is provided by the federal government, provincial governments decide how this funding is applied within their provincial health care systems.


In New Brunswick, this means that abortions must meet certain conditions in order to be classified as a medical service that is eligible for provincial funding. Abortion services that do not meet these conditions are paid out-of-pocket by the patient.


Prior to 2015, the province required that all funded abortions be approved in advance by two doctors and be performed by a “specialist”. With the amendment of Regulation 84-20 of the New Brunswick Medical Services Payment Act, the province removed these requirements and replaced them with the requirement that services be performed in an approved hospital facility.


There are only three hospitals in New Brunswick that are equipped to provide abortion services. And these facilities are all located in urban centers (1 in Bathurst, which only accepts patients from the Bathurst area, and 2 in Moncton).


While there are still private abortion clinics operating in New Brunswick, patients must pay for procedures out-of-pocket, impacting access for lower income patients.


There is some question of whether, by refusing to fund clinical abortions, New Brunswick is in violation of the Canada Health Act, sections 18 and 19, which prohibit extra-billing and user charges for services which are covered under Medicare. While the Premier of New Brunswick has previously stated that the regulations do not prevent the province from meeting its obligations under the Act, the federal government deducted $140,000 from their 2020 transfer payments to represent the amount of money that New Brunswick residents spent out-of-pocket on abortion services (the deduction was later reversed to fund the NB response to Covid-19).


Advocacy groups are taking action against New Brunswick’s restricted funding model. The Canadian Civil Liberties Association (CCLA) was granted public interest standing to pursue legal action against New Brunswick for unconstitutionally restricting abortion services in June 2021, and is continuing to speak out against Regulation 84-20.


Ontario


While the there are significantly more abortion service providers in Ontario, both in rural and urban areas, there are an even higher number of so-called “Crisis Pregnancy Centers” or CPCs.


Crisis Pregnancy Centers are non-profit organizations which seek to provide alternatives to abortion. While employees at these centers maintain that they are offering legitimate reproductive health services, many advocates of reproductive health rights have criticized these clinics for spreading misinformation, obstructing access to abortion services, and excluding members of the LGBTQ+ community.


These Centers have also been criticized by members of the medical field and legal scholars for unethical practices and “impeding the right to informed decision making”. Clinicians at CPCs are often unlicensed, spread information about abortion and pregnancy that has been widely discredited in the medical community, and refuse to provide referrals for abortion services.


Based on 2014 data collected by Action Canada, there are currently 77 active CPCs in Ontario, compared to only 38 providers of abortion services. While this is not an issue limited to Ontario, the province does have the highest number of CPCs in the Country.


Alberta


Alberta has the highest rate of female residents to abortions clinics in Canada. With only 5 abortion service providers in the province, Alberta had a rate of 1 clinic per approximately 209,000 female residents in 2019. That is more than double the next highest rate in the country (Ontario had 1 clinic per 86,900 residents).


The providers are also all located in the province’s two major urban centers, Calgary and Edmonton, leaving the rural population of Alberta to commute into these centers to meet with providers at their own expense and in their own time.


This is crucial because abortion is a time-sensitive procedure. Additionally, very few abortion service providers in Canada perform abortions after 24 weeks, and only one facility in Alberta offers abortion services after 20 weeks (only on a case-by-case basis). While it is rare that an abortion will be sought after 20 weeks (data collected by the Abortion Rights Coalition of Canada shows that over 85% of abortions are performed in the first 12 weeks, and over 98% are performed in the first 21 weeks), these situations do arise, often as a result of serious medical complications, and people needing these services are often required to travel out of the province or country to receive them.


A Canadian study conducted in 2012 assessed how far people in Canada are travelling to access abortion services. The study found that “approximately a third of women [surveyed] (29–36%) travelling to clinics in Alberta, Manitoba and Vancouver Island travelled more than 100 km to access [abortion] services”.


Conscientious Objection


Abortion is not an uncontroversial topic, even in the medical field.


There are doctors in Canada who will refuse to perform abortions on ethical grounds. These conscientious objectors became the subject of a 2019 Ontario Court of Appeal case, Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario.


In this case, a number of physicians from Ontario challenged a policy adopted by the Ontario College of Physicians and Surgeons in 2016, which required that physicians who objected to providing medical procedures, such as abortion, on the basis of their beliefs provide an “effective referral” to patients who requested these services. The physicians argued that this policy infringed on their Charter rights to freedom of conscience and religion by forcing them to be complicit in medical procedures that offended their religious beliefs.


The Ontario Court of Appeal ruled that while the physicians’ Charter rights were engaged, the mandatory referral policy was justified under section 1 of the Charter as it is necessary to the “facilitation of equitable patient access to health care services”. The Court also made a point of highlighting that many of the services that were objected to on conscientious grounds are time-sensitive procedures that are frequently sought by vulnerable patients, and that delaying access by not offering a referral can prevent access to these services altogether.


Because this case relates to the policies of an Ontario-specific regulatory body, it does not impact conscientious objectors in other provinces. Other provincial regulatory have their own conscientious objection policies, many of which do not require an effective referral to be given to patients when a physician objects to requested services.


Looking at a specific example in our own province, the College of Physicians and Surgeons of Alberta requires conscientious objectors to ensure that patients are:


offered timely access to:


a. a regulated member who is willing to provide the medical treatment, service or information; or


b. a resource that will provide accurate information about all available medical options.


Critics of the policy have noted that this second option does not actually require the physician to ensure that the patient has access to effective care, and the physicians who believe abortion to be harmful may view information about the harmful effects of abortion that has been discredited by the medical community at large as “accurate information” for the purpose of this policy.


Taken all together, this does not paint a pretty picture of Canada as the utopia of abortion care in North America. While there are no discussions in government about criminalizing abortion, lack of access and other non-legal barriers continue to make abortion inaccessible for many within our borders.


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