The Constitutionality of Abortion Policy in New Brunswick – Chapter 2

Tia Beaudoin, a recent Political Science Honours graduate at University of New Brunswick, has kindly offered her thesis as a series of guest blog posts on the subject of the abortion policy in NB, with particular regard to the laws that have resulted in abortion being virtually inaccessible for much of the Maritimes.

As it’s very long, I’ve broken it up into multiple posts:

Cover / Works Cited
Chapter 1: A Social and Legal History of Abortion in Canada
Chapter 2: New Brunswick: Openly Defying the Canada Health Act

As an editor’s note, I should point out that Dr. Henry Morgentaler died last May, and after his death, the clinic he founded in New Brunswick — which he’d been fighting to force the government to cover the costs of the procedures done there in the courts over the last 11 years — was forced to close for lack of funding, despite the Canada Health Act requiring funding of abortions. The provincial government, thanks to Regulation 84-20, only covers funding for abortions recommended by two doctors as “medically necessary” — a law that makes it nearly impossible to obtain the two doctors’ sign-off during the mandated first twelve weeks of the woman’s pregnancy. Those two facts essentially make it impossible to get medical funding, and the clinic under Morgentaler had mandated to never turn away a woman in need. As a result, it has lost close to $100,000 over the past ten years.

Worse, the lawsuit was dropped in the wake of the ongoing backlash against Regulation 84-20.

Chapter 2: New Brunswick: Openly Defying the Canada Health Act

Under the Canadian constitution, legislation, regulation, insuring of medical procedures is strictly under provincial jurisdiction.1 The federal Canada Health Act legislates that all provinces must cover medically necessary procedures within their respective provincial health insurance plans in order to be eligible for the Canada Health Transfer; which is a fund given by the federal government to provincial governments to help supplement provincial medical insurance payments among other things. Within the following chapter I will detail the government of New Brunswick’s problematic interpretation of the federal legislative void in which abortion has existed since 1988. 2 Included in this will be an explanation of the relevant court cases ongoing in the province. I will also discuss how the province has continued to be unpunished for its disregard of the Canada Health Act, although the federal government has full knowledge of New Brunswick’s transgressions. In addition I will conclude by discussing the importance of clinic abortion access, along with the numerous benefits these clinics can provide both to the government and to women in New Brunswick. New Brunswick’s abortion policy is operating in contravention to women’s Charter rights on several levels, and is extremely inaccessible when compared to many other Canadian provinces.

The government of New Brunswick had made their views about abortion clear prior to the 1988 Supreme Court decision, and unfortunately there have not been many positive changes made since that time. In 1985, three years before the monumental decision, Morgentaler wrote the legislative assembly of New Brunswick a letter detailing his intention to open up a private abortion clinic in Fredericton. Premier Richard Hatfield and his Progressive Conservative government responded by amending the province’s Medical Act. The changes put physicians at risk of losing their license if they were caught practicing abortions outside of a hospital. This legislation was entirely redundant at the time, as abortion was still included in Canada’s Criminal Code, and the procedure was only permissible in an accredited hospital with the written permission of that hospital’s TAC. It was clear that the changes were only made strategically to prevent Morgentaler from opening a clinic in New Brunswick.3 Once the 1988 Supreme Court decision came to pass, and abortion passed on to provincial jurisdiction, Morgentaler chose to challenge the New Brunswick’s 1985 legislation in court in 1989.

In the 1989 case, Morgentaler petitioned for reimbursement for giving three New Brunswick women abortions in his Quebec clinic. The 1985 legislation was the only legislation the province had concerning abortion, and it did not detail procedure for funding abortions outside of the province.4 The province, led at the time by Liberal Premier Frank McKenna, defended itself by referencing their abortion funding policy, which stated that abortion is a funded service under Medicare only when “it is determined by two doctors to be medically required and performed by a specialist in an approved hospital.”5 This policy was in practice, but had never been “formally adopted”, which is to say that the Legislative Assembly of New Brunswick had not yet voted on the legislation and made this policy law under the Medical Services Payment Act. Morgentaler won his suit, and the government quickly remedied their mistake by passing the legislation into law after the court case had been decided, which became Regulation 84-20. The regulation reads as follows;

[abortion is an unentitled service] 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.6

This legislation does not allow for abortions performed within private clinics to be funded by the provincial medical insurance system under any circumstance. This abortion policy is extremely restrictive and problematic for a variety of reasons.

There are many problems with abortion access caused by political reasons, in addition to this; New Brunswick women face many social barriers to obtaining abortion. Anti-choice attitudes may not necessarily be connected to a religious sense of morality, however they are often related. The majority of the province is made up of rural communities, many of which are known to be home to particularly devout Christian groups. Although there are a wide variety of Christian faiths in New Brunswick, each with differing levels of social conservatism, on the whole most of these are staunchly anti-choice institutions. Communities are often heavily influenced by the dominant religion, and this force may persuade a woman to be fearful of the social stigma and consequences attached to receiving an abortion even if that is what she desires, in the case that anyone ever found out about her choice. Also, the dominance of anti-choice beliefs and rhetoric in a woman’s community can prevent her from having a non-judgmental support network close to her home, which can be very important for some women when they make the choice to have an abortion. In addition to this, if a woman is unable to receive a publicly funded abortion in New Brunswick and elects to purchase an abortion at the Fredericton Morgentaler clinic, she may have to endure walking past a very active group of anti-choice protesters who congregate outside of the clinic weekly. This group has bought the property which neighbors the clinic so they could set up an anti-choice establishment to offer an alternative to abortion for women who have unwanted pregnancies. For women new to the area, it would be easy to mistake one building for the other and unexpectedly encounter anti-choice attitudes, which would only serve to confuse and upset a woman in such a delicate and time sensitive situation. As dubious as these issues are, they do not compare to the vast array of administrative and procedural access problems caused by the actual legislation involved in public abortion funding in New Brunswick.

Many issues surround abortion in New Brunswick. Firstly, there are few hospitals in New Brunswick that perform abortions. The Dr. Everett Chalmers Regional Hospital in Fredericton stopped performing abortions in the summer of 2006 because the facility could not staff enough doctors.7 This could be because specialists are difficult to hire, or because the specialists on hand were unwilling to perform the procedure, as doctors are legally allowed to refuse to provide services to which they are morally opposed.8 The second part of this issue is it is very difficult to find out which hospitals provide abortions. Many resources claim that one or two hospitals in the province currently provide this procedure, however after extensive research, a recent listing has not been found. The names of the hospitals have purposefully not been released to the public.9 This information would likely be provided to the patient after receiving her two referrals, if she could manage to find two doctors willing to give them.

Simone Leibovitch, current manager of the Fredericton Morgentaler Clinic, is cited in many newspaper articles discussing the problems with the provincial abortion policy. She claims that abortion access is a monumental problem in New Brunswick,10 and she explains that barriers from lack of referrals hurt women’s chances of receiving a publicly funded abortion.11 Many doctors in the province have been known as anti-choice, and will refuse to give abortion referrals based on personal morals, which is perfectly legal. However many of them go a step further and refuse to direct the woman in need to someone who will provide a referral. A few anti-choice doctors will refer women seeking abortion to anti-choice establishments to receive anti-choice counseling. According to a guest editorial in the Canadian Medical Association Journal,

…regardless of their personal beliefs, [physicians] should not prevent women from accessing abortion. Health care professionals who withhold a diagnosis, fail to provide appropriate referrals, delay access, misdirect women, or provide punitive treatment are committing malpractice and risk lawsuits and disciplinary proceedings. Physicians who prevent women from accessing abortion also breach the CMA’s [Canadian Medical Association] Code of Ethics…[and] they also violate CMA policy…for example, it’s positions taken on full and immediate counseling and access without delay.12

In addition to bad referrals, many women do not have family doctors, especially in rural communities. /span>

Delays in service are caused by all of these factors. The time it takes to set up two separate appointments to find two good referrals, as well as the wait time to see a specialist greatly increases the time a woman must wait between finding out about her pregnancy and her abortion. An abortion can only be publicly funded if it is provided before 12 weeks; this places a very strict time limit to find the referrals and make appointments, in addition to the wait times to see the very few specialists who are willing to perform the procedure. Since there are rumored to be only two specialists available, each in separate hospitals, there can be long wait times, and there is no backup plan for when either or both of these doctors fall ill, go on vacation, or retire. This is unnecessarily difficult, as abortions, especially before 12 weeks, can easily be performed by family physicians, which can be accessed by more women with increased ease.13 In addition to this, access is extremely difficult for women in rural communities. This is a momentous problem considering the majority of New Brunswick is made up of rural communities. Many women must travel for hours, not only to receive their abortion from a specialist, who is usually employed at larger city hospitals because these hospitals have more funding than rural health care facilities, but also to gain referrals. Accessing referrals can be very difficult in small socially conservative communities, and maintaining anonymity is very challenging. All of the travel time involved in this process is not reimbursed. Despite all of this, possibly the most controversial issue with New Brunswick abortion policy is that abortions provided in clinics are not funded under any circumstance.

Clearly New Brunswick’s abortion policy is extremely inequitable, and violates women’s Charter rights as well as the Canada Health Act. Many of these violations are similar to those found in the Supreme Court’s Morgentaler decision of 1988 against Trudeau’s section 251of the Criminal Code. It was because of this that Dr. Morgentaler decided to sue the Government of New Brunswick in 2003. He argued that Regulation 84-20 contained within the Medical Services Payment Act was unconstitutional by violating women’s Charter rights, specifically sections 7 and 15. The physician also argued that the regulation violates the Canada Health Act.14 Ever since, the provincial government and the local anti-choice group Coalition for Life has been attempting to stall the proceedings using an assortment of techniques.

The first of these delaying tactics was employed by the Coalition for Life. The group applied for intervener status for the case in 2004, because they desired to represent “the [fetus’s] right to life” in court. They were denied, and lost their appeal to that decision.15,16 The case was stationary for the following four years, until the provincial government challenged Morgentaler’s standing in 2008. The government’s lawyers argued that Dr. Morgentaler was not a woman and therefore the regulation does not directly affect him. As reported in Fredericton’s Daily Gleaner, “Judge Paulette Garnett has granted Morgentaler ‘public interest standing’ to represent women in his lawsuit against the province.”17 This permission was granted because the judge recognized that “There are many valid reasons why women who have had abortions at the Fredericton Clinic would not or could not bring this challenge.”18 The province appealed in 2009, but the verdict held. It was redundant for the province to challenge his standing in the first place, because he had already represented women in the highest court in the country for almost the same reasons, it is clear that this decision was made only to stall the case for a greater period of time.

A complaint has been made to the New Brunswick Human Rights Commission by a female physician known only as A.A. in 2008. She raised two important issues in her complaint. She felt as though the procedures followed through Regulation 84-20 constituted sexual discrimination against her and her ability to provide healthcare for her patients. According to Dr. Johnstone’s interpretation, “Central to her [A.A.’s] claim was her perception that, as a female doctor providing sexual healthcare, she is subject to uniquely negative treatment as a result of the regulation.” Secondly, in her case A.A. asserted that the regulation actively forced her to act contrary to the Canadian Medical Association’s stance on abortion, which states that delays in providing abortion services are forbidden, and that abortion should be equally available to all Canadian women. She argued that Regulation 84-20 discriminates against New Brunswick women on the basis of sex, and causes “psychological harm” to her patients. In her preliminary hearing, her second issue was denied, because under the Human Rights Act, only individuals belonging to a certain group may bring forward a claim of discrimination against that group. A.A. cannot represent women who are in need of/have had abortions because she does not allege to be a member of that specific group. The commission chose to hear her first claim; however in 2011 the provincial government once again employed delaying tactics by infringing on the case. The government of New Brunswick challenged the board’s jurisdiction on both claims. The judge upheld the original conclusion. No further developments have been recently made.

It is unsurprising that the current government wishes to delay the ruling for the Morgentaler suit. It is due to the familiar problem of political stagnation in New Brunswick politics. The members of the Legislative Assembly who are personally pro-choice are fearful of supporting the cause in their public lives because they fear they will lose voter support from the largely older, conservative electorate. However, the New Brunswick politicians with the highest concentration of power to change the status quo are publicly and unashamedly anti-choice. Current Premier David Alward won a Conservative majority, and the day following his win he was quoted by the Globe and Mail flaunting his anti-choice views, which were not at odds with the opinions of the previous four premiers; “…David Alward…said the province will continue to contest [abortion]. ‘That was my position before’ he said tersely…‘My ‘position hasn’t changed.’ It’s a familiar line in the sand. ”19 In 2010, Alward once again demonstrated his affiliation with the anti-choice by attending the 10th annual “March for Life” rally.20 He also stated as recently as 201l, “I believe life begins at conception…I was proud to have been a part of a government that fought to see the Morgentaler clinic not be funded in New Brunswick. Abortion services are provided already.”21 This belief that there is nothing wrong with the current system appears common among New Brunswick’s politicians. In 2006, the then provincial Minister of Health Brad Green told the Daily Gleaner:

The health minister said as long as abortions are available somewhere in the province, it meets the Canada Health Act requirement to provide the service. He said many procedures, such as cancer care and heart surgery, are offered in only one center and people must drive a long way to where they’re offered.22

This very issue was brought up in the Morgentaler decision by the Supreme Court Justices nearly 20 years before Mr. Green made that statement. In Chief Justice Dickenson’s argument, it states

If women were seeking anonymity outside of their home town or were simply confronting the reality that it is often difficult to obtain medical services in rural areas, it might be appropriate to say ‘let them travel’. But the evidence establishes convincingly that it is the law itself which in many ways prevents access to local therapeutic abortion facilities. 23

In New Brunswick, the rule that abortions are not funded in clinics prevents access, just as the federal law was found to prevent access in 1988. In addition to analyzing the Morgentaler decision of 1988, upon an in-depth examination of the Canada Health Act, one quickly realizes how wrong Mr. Green’s claims are.

The Canada Health Act is the federal legislation which attempts to ensure everyone in Canada is able to receive similar health insurance under their provincial healthcare plan. Contained within its pages are certain criteria that provinces must follow with their individual insurance plans in order to receive their full share of the Canada Health Transfer, a federal grant which supplements provincial insurance.24 The legislation does not detail which procedures must be covered, only that procedures deemed “medically necessary” must be covered by provincial plans. These medically necessary procedures must be performed in “hospitals”, however, clinics are included in that definition if they are providing medically necessary services. The provinces individually decide what services will be considered medically necessary, they make these decisions alongside the provincial College of Physicians and Surgeons and the provincial chapters of the Canadian Medical Association.25 Joyce Arthur states;

Since all provinces already insure abortion done in regular hospitals, this means that all provinces have deemed abortions to be a medically necessary hospital service. Therefore, abortion clinics are covered under the CHA as ‘hospitals’ and must be fully funded.

The legislation is very clear on this matter. Provinces cannot fully fund a service performed in a hospital and not fund the same service performed in a clinic.

This point was further emphasized when Diane Marleau, Federal Health Minister in 1994 wrote a letter to each provincial Health Minister clarifying the federal position on insuring medically necessary services performed at private clinics;

The letter stated that the definition of “hospital” contained in the Act includes any public facility that provides acute, rehabilitative or chronic care. Thus, when a provincial/ territorial health insurance plan pays the physician fee for a medically necessary service delivered at a private clinic, it must also pay the facility fee or face a deduction from federal transfer payments.26

Funding for medically necessary services must be fully and equally provided in hospitals and clinics.27 Marleau made this explicitly clear in the early 1990’s, and yet many provinces blatantly disregard this rule, and proceed to break the law over the course of decades. The government of New Brunswick is unfortunately one of the worst offenders, and has never suffered a financial penalty.

There is a certain stereotype that is associated with private clinics, and this stereotype makes it even more unnecessarily difficult to bring about social change to abortion policy in New Brunswick. Many people unaware of the access issues wonder why a woman would choose to pay for her abortion in a private clinic over receiving one for free in a hospital, some assume that private clinics are built by avaricious businesses attempting to make a profit off of women in a difficult situation. Aside from the obvious problems discussed above concerning women’s access to publicly funded abortions in New Brunswick, abortion clinics generally provide better reproductive care than a hospital is equipped for. According to Joyce Arthur, “…abortion is probably the only medically necessary surgery that is delivered much better in clinics than in hospitals.”28

Abortions performed in clinics give women an equal if not better abortion experience. Funding these abortions would not only fulfill women’s Charter rights, it would be more economical and increase ease of access. Currently in New Brunswick rising healthcare costs have become a very large thorn in the government’s side. With an aging population and a shortage of doctors, pressure on the healthcare system in New Brunswick is steadily on the rise. The government has resorted to cutting costs however they can in order to save money and help pay off the provincial deficit. As Leibovitch pointed out in the Daily Gleaner, from the government’s perspective, paying for an abortion performed by a specialist in a hospital setting would be far more expensive than paying for the procedure to be performed in a clinic by a family doctor. The government could potentially save thousands of dollars by paying for clinic abortions as well as those given in hospitals, as many women seeking out abortions would rather go to a clinic with decreased wait times, and specialized before and after care. The Fredericton clinic is also equipped with mass amounts of contraceptive and sexual health information, and is capable of inserting an IUD (intra-uterine device, a long term contraceptive method) within the same appointment as an abortion; this all aids to the decrease of the abortion rate in the province. It has been proven that abortion rates decrease in countries with higher abortion and contraceptive access. Also, in hospitals women are at risk of coming into contact with anti-choice healthcare professionals, whereas in a clinic specializing in women’s health, such as the Fredericton Morgentaler Clinic, the staff is required to be pro-choice, and is specially trained to be knowledgeable, non-judgmental, understanding, and friendly no matter what choices a woman makes. Despite all of the benefits to publicly funded abortions in clinics, they are unfortunately not available in New Brunswick, even though they are guaranteed by the Canada Health Act. At one time, New Brunswick came very close to being punished by the federal government for this oversight, but this was aim was unsuccessful.

In 2005 then federal Health Minister Ujjal Dosanjh publicly recognized that New Brunswick was in a state of non-compliance with the Canada Health Act due to their restrictive abortion policy, specifically because abortions provided at clinics are not insured. According to the Canada Health Act Annual Report for 2005-2006, Dosanjh referred New Brunswick’s case to the Canada Health Act Dispute Avoidance Resolution review panel, otherwise known as a DAR.29 According to Judy Burwell, former director of the Fredericton Morgentaler Clinic, the New Brunswick government was not acting in a manner which was conducive to negotiations. This was demonstrated by various means, such as ignoring phone calls, to the provincial Minister of Health publicly stating that the provincial government refused to “bow to pressure” from the federal Liberals.30 However, before any resolution could be achieved, in the 2006 election, Paul Martin’s Liberal government was ousted in favour of Harper’s Conservatives. Dosanjh was replaced with Health Minister Tony Clement, who quickly announced “the federal government does not intend to pursue the matter of abortion funding at the NB clinic”.31 In the 2006-2007 Report, the results of New Brunswick’s review were never discussed. In fact, New Brunswick’s abortion legislation was completely left out of the “Compliance Issues” section.32 The federal Conservative government has not used the DAR process to sanction any province with reference to their abortion provision since Dosanjh’s efforts.33 Non-compliance with the Canada Health Act usually results in deductions from the Canada Health Transfer. In the past, both Alberta and Newfoundland have been penalized with deductions for not funding abortions performed in clinics. These deductions resulted in policy changes which allowed women to have publicly funded abortions in clinics within those provinces, in addition to previously held rights to funded abortions within hospitals.34 New Brunswick has never had to suffer such a financial penalty, although the government is guilty of the same infractions. Plainly, there have never been any repercussions for New Brunswick blatantly defying federal legislation, despite the relevant federal officials being fully aware of the problems.35

1 Johnstone, pg. 80.

2 Ibid.

3 Johnstone, pg. 84.

4 Ibid, 85

5 Ibid, 86

6 Ibid

7 Llewellyn, Stephen. “Abortion Policy makes N.B. look ‘backwoods’, says NDP Leader.” The Daily Gleaner, May 24, 2006.

8 Sandra Rodgers, and Jocelyn Downie, “Abortion: ensuring access,” Canadian Medical Association Journal, 175, no. 1 (2006): 9

9 Shaw, pg. 23.

10 Chris Morris. “Morgentaler gets legal standing to take on N.B.” The Daily Gleaner, August 9, 2008.

11 Oliver Moore. “No takers for abortion debate in New Brunswick.” The Globe and Mail, September 30, 2010.

12 Rodgers and Downie, 2006

13 Pro Choice Action Network: Repeal New Brunswick’s Ant-Abortion Law Now!

14 Johnstone, pg. 91.

15 Ibid.

16 Jeremy Dickson. “Abortion lawsuit sparks rally.” The Daily Gleaner, May 17, 2007.

17 Morris, 2008

18 Johnstone, pg. 92.

19 Moore, 2010

20 Ibid.

21 Brett Bundale. “Abortion lawsuit languishes.” The Daily Gleaner, January 21, 2011.

22 Llewellyn, 2006

23 R. v. Morgentaler, pg. 71.

24 Arthur, 2002, ‘Untangling the Canada Health Act’

25 Arthur, 2002, ‘What does ‘medically necessary’ mean anyway?’

26 Tony Clement. Health Canada, “Canada Health Act Annual Report 2005-2006.” Last modified December 2006.

27 Arthur 2009, pg. 4.

28 Arthur, 2002, ‘The ‘stink’ of private clinics.’

29 Clement, 2006

30 Johnstone, pg. 94.

31 Ibid.

32 Tony Clement. Health Canada, “Canada Health Act Annual Report, 2006-2007.” Last modified December 2007.

33 Johnstone, pg. 94.

34 Leona Aglukkaq. Health Canada, “Canada Health Act Annual Report 2011-2012.” Last modified December 2012.

35 Ibid.

The Constitutionality of Abortion Policy in New Brunswick – Chapter 2

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