The Morgentaler abortion clinic in New Brunswick has announced that it will be closing its doors after a 20 year struggle with the provincial government over access to funding. The closure is a sore reminder of the limitations of the landmark R v. Morgentaler case that legalized abortion in Canada. To recap, in 1988, Dr. Henry Morgentaler won his case, and the Supreme Court struck down the abortion provisions in Canada’s criminal code in a five to two split. A majority of the Supreme Court judges found that the abortion laws, section 251, offended a pregnant woman’s constitutionally protected right not to be deprived of her “life, liberty, and security of person.”
However, this case did not give women a legal right to abortion in Canada, only the right to access abortion. In the Morgentaler ruling, the court did not declare abortion a constitutional right. In fact, the two dissenting judges, McIntyre and La Forest JJ. wrote in their decisions, “… save for the provisions of the Criminal Code permitting abortion where the life or health of the woman is at risk, no right of abortion can be found in Canadian law, custom or tradition and the Charter, including s.7, does not create such a right.”
Furthermore, the courts did not specify in what capacity it would be legal. For this reason, there is wide disparity between services offered by each province in Canada. In British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland, abortions are paid publicly funded, whether it is performed in a hospital or private clinic. In Saskatchewan, the Northwest Territories, Nunavut, and Yukon, hospital abortions are paid for by taxpayers but, there are no private clinics. In New Brunswick hospital abortions are publicly funded but not private clinics, and Prince Edward Island does not perform abortions at all.
Osgoode law professor Dr. Jula Hughes writes about what facilitates such wide disparity, given the ambiguity of earlier court cases in her article, The closure of the Morgentaler Clinic and the Rule of Law in New Brunswick. Dr. Hughes highlights the myriad of legislation that has been passed in New Brunswick limiting the rights of women to access abortion. In 1989, the Minister of Health promulgated a revised schedule to the general regulation under the Medical Services Payment Act. It states:
The following are deemed not to be entitled services….
(a.1) abortion, unless the abortion is performed by a specialist in the field of obstetrics and gynaecology in a hospital facility approved by the jurisdiction in which the hospital facility is located and two medical practitioners certify in writing that the abortion was medically required;
This act was later amended in 1994 to include section 2.01, which states:
Notwithstanding any other provision of this Act, the medical services plan shall not provide payment for (…) entitled services furnished in a private hospital facility in the Province.
These developments in New Brunswick legislation are clearly not in keeping with the spirit of the court’s ruling and Dr. Hughes argues, “The net effect of these developments is that despite clear law on the right to access funded abortions, the provincial government will be able to continue to discriminate against women with impunity.” Despite these discrepancies and the risk to reverting back to the days of back doors and wire coat hangers, publicly funded abortions do not rank high on Canadians’ list of priorities even today. In March of 2013, Life Canada polled 2,008 Canadians, using a 2.2% margin of error 19 times of 20 and found that 54% of Canadians think abortion should be financed through taxes, but only in case of medical emergencies such as a threat to the mother’s life, or in the case of rape or incest. 13% believe that paying for abortions should be the individual’s responsibility. Thus, 67% of Canadians polled do not support tax-funding of all abortions.
This survey reveals the deep seeded discrimination that underpins our own cultural perception of this issue. There isn’t enough awareness of the significance of women not having fair and equal access to abortion. Awareness of the discrimination, injustice, inequality and persistent second rate status of women in Canadian society. Awareness of the patriarchy that holds our rights to self-determination, liberty and security hostage on account of our function. We are worth the value of our reproductive parts, and not valued for our subjective psychological, mental and emotional processes that really define who we are. Going thorough with a pregnancy and giving birth to a child should always be a choice, and it is even better if planned. But, for a myriad of reasons that shouldn’t need to be explained- there is no medical doctor or second opinion on the planet that is qualified to make that decision for any woman.
– M’Lisa Colbert