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Dr. Henry Morgentaler raises his arms in victory at a news conference in Toronto, Jan. 28, 1988. The Morgentaler Clinic in Fredericton will close at the end of July, a move the facility’s manager says will restrict the rights of women in New Brunswick seeking abortions. (Blaise Edwards/THE CANADIAN PRESS)
Dr. Henry Morgentaler raises his arms in victory at a news conference in Toronto, Jan. 28, 1988. The Morgentaler Clinic in Fredericton will close at the end of July, a move the facility’s manager says will restrict the rights of women in New Brunswick seeking abortions. (Blaise Edwards/THE CANADIAN PRESS)

Rachael Johnstone

New Brunswick shines a light on the fragile state of women’s reproductive rights Add to ...

Rachael Johnstone is an assistant professor at the Bader International Study Centre at Queen’s University

Last week, the Fredericton Morgentaler clinic announced that it would be closing its doors in July due to a lack of funding. The closure of the clinic, which performs more than half of all abortions in New Brunswick, will remove the only real option for abortion access for many women in the province.

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This news follows less than a year after the passing of Dr. Henry Morgentaler, whose landmark 1988 Supreme Court case was responsible for striking down Canada’s abortion law and shifting jurisdiction over the procedure to the provinces as a health care service. This case is often portrayed as the final battle for abortion rights in Canada, but the realities of accessing abortion in New Brunswick reveal the continued fragility of women’s reproductive rights.

Prince Edward Island, where no abortion services are available, is often touted as the worst province in Canada with regard to abortion access. While this reputation is well deserved, it has often obscured some similarly disturbing policies in New Brunswick.

The nature of access to abortion services in New Brunswick is set out in regulation 84-20 of the Medical Services Payment Act, put in place by the Frank McKenna government in 1989. The regulation lays out the requirements for coverage of abortion under the provincial Medicare program. Women seeking coverage must obtain written approval from two doctors who must determine that an abortion is “medically necessary” before they can make an appointment with a gynecologist at one of two New Brunswick hospitals authorized to perform abortions. It is a race against time to secure these permissions and an appointment for the procedure before the 12th week of gestation. This regulation appears to be modeled on pre-1988 therapeutic abortion committees, which required the approval of multiple doctors for a woman to access a legal abortion – requirements that have no foundation in medicine.

New Brunswick women, many of whom have neither a family doctor, nor the means, information, or support necessary to negotiate these bureaucratic hoops, often find themselves without access to a safe and legal medical service. Young, rural, and poor women are particularly susceptible to these barriers.

Women unable to access services in the province can seek services in other provinces but must pay out of pocket. In contrast to many other provinces, New Brunswick has no reciprocal arrangements with other provinces to cover the procedure.

New Brunswick’s policies are in clear violation of the Canada Health Act, which was created to ensure Canadians receive “reasonable access to health services without financial or other barriers” and infringes on women’s s. 7 (security of the person) and s. 15 (equality) Charter rights. So, how is it that these policies have been able to persist? Certainly, the constitutionality of Regulation 84-20 has not gone uncontested.

In 2005, then federal health minister Ujjal Dosanjh (Liberal) initiated a process designed to resolve disputes in the interpretation of the Canada Health Act (dispute avoidance resolution or DAR) for New Brunswick’s refusal to reimburse clinic abortions. New Brunswick health minister Elvy Robichaud (Progressive Conservative) declared that the province would not “bow to pressure” from the federal Liberals and refused to engage in talks. Before the completion of the process, Stephen Harper’s federal Conservatives came to power and discontinued the DAR talks with the province.

In 2003, Mr. Morgentaler challenged the constitutionality of regulation 84-20 in court, citing its violation of both the Canada Health Act and the Charter. Sadly, the substance of his claims was never debated in court. Instead, the case was subject to a multitude of delays: after an anti-abortion interest group engaged in drawn out appeals to gain intervener status in the case (they were consistently denied), the government attempted to challenge Mr. Morgentaler’s standing to bring the case forward (they were likewise unsuccessful). These tactics delayed the case well into 2009 when Mr. Morgentaler’s health was in decline and he was unable to pursue the case. His death in 2013 has left the case unresolved.

Rather than engaging with the substance of Mr. Morgentaler’s claims, the New Brunswick government has staunchly refused to justify its adherence to outdated regulations that compromise the health and rights of its female residents.

As the realities of a lack of abortion access have begun to fade from the collective memory, and Canadian women feel secure in their rights to access safe and legal abortion services, we must resist the urge to treat abortion rights as guaranteed. A recent report by UPEI researchers reveals that many women without access to services on the Island have returned to the pre-1988 practices of self-abortion and self-harm. How long will it be before the same patterns re-emerge in New Brunswick?

Almost three decades after abortion was decriminalized in Canada, it is time to revisit abortion policy in the provinces and its implications for the life and health of women. Most importantly, it is time to hold the federal and provincial governments to account for their treatment of women’s rights.

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