In a bid to force Prince Edward Island to provide hospital-based abortions, pro-choice activists have launched a lawsuit accusing the province of violating women's rights based on a moral choice they say government has no right to make.
The lawsuit is now the major front in the fight over access to abortion in Canada, and would take the courts into a new realm: judicially required abortion services.
The battle goes back to the prosecution of Henry Morgentaler in 1988, when the Supreme Court of Canada struck down the federal criminal law that required women to apply to hospital committees and meet certain criteria to have an abortion. Prince Edward Island passed a resolution that year opposing the performing of abortions, and is now the only province where hospitals do not offer the procedure. The Supreme Court of Canada has never declared women have a right to an abortion.
As of June, the province's Liberal government arranged to pay for abortions done in Moncton, N.B., two hours away from the capital, Charlottetown, by car. The province, which has a population of 146,000, also covers abortions done in Nova Scotia. But the pro-choice group behind the lawsuit says that poor, marginalized or rural women find it difficult to get to Moncton or Nova Scotia. PEI has no private-sector providers of abortion.
The province has maintained an anti-abortion policy ever since the 1988 Supreme Court ruling, according to a notice of application filed on Tuesday in PEI Supreme Court by an advocacy group, Abortion Access Now PEI Inc.
"The purpose of the Abortion Policy is to advance a particular conception of morality and to restrict access to abortion as a socially undesirable or immoral practice," the notice says. It cites three obstacles in PEI: government-funded abortions must be done in a hospital, a doctor's pre-approval is required to get the funding and health ministers have blocked abortion funding.
Women have become so desperate that they have tried to induce abortions by methods such as ingesting chemicals or a punch in the stomach, said Colleen MacQuarrie, a psychology professor at the University of Prince Edward Island, who is a member of Abortion Access Now. She cited research based on interviews with PEI women she did before the province agreed to pay for abortions in Moncton. She added that she believes the desperation remains. She said the last elective abortion in PEI occurred in 1982.
"They're willing to compromise women's human rights, dignity and autonomy for political expediency," she said in an interview, explaining why her group turned to the courts.
Premier Wade MacLauchlan, a former dean of law at the University of New Brunswick who is also the province's Attorney-General, would not grant an interview. But a spokesman for the Attorney-General issued a written statement: "Last year government announced the removal of a number of barriers to improve access to abortion services for Island women. Government has just received notice and will be reviewing very carefully – and in consultation with legal counsel – the material to be filed. Government will respond accordingly in due course."
Alissa Golob, executive director of Campaign Life Coalition Youth, a national anti-abortion group, said a PEI court ruling in the mid-1990s in a case brought by the late Dr. Morgentaler found that the province can determine what is medically necessary, "and at this point they have not deemed abortions medically necessary, which is something we agree with."
Although previous Canadian court rulings have found government under no obligation to provide particular services – including medically required treatment such as special instruction for autistic children in British Columbia – some observers believe the lawsuit has a good chance of success.
The abortion policy "singles out a particular procedure for reasons that to me seem motivated by a moral belief about the procedure," University of Ottawa law professor Carissima Mathen said in an interview. She is a former litigation director for Women's Legal Education and Action Fund (LEAF), a legal lobby group that is helping with the lawsuit. "I don't think a provincial government can legitimately do that."
Kim Stanton, the current litigation director for LEAF, said the group objects to PEI's abortion policy as a denial of women's right to equal care – it considers abortion a basic health service . It also says the abortion policy violates the province's own health policy, which stresses equitable and efficient health care.