Author: Anne Bull (Vienna Master of Human Rights)
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A provision to the provincial Regulation 84-20, the Medical Services Payment Act, blocks public funding for the procedure without confining surgical abortion to those facilities. This regulation is seen by the CCLA to restrict women’s access to abortion unless done in approved hospitals, even though this restriction is not medically necessary or justified. Schedule 2, section (a.1) groups abortion incongruously along with elective plastic or cosmetic surgery such as breast augmentation, otoplasty, and removal of minor skin lesions, as being deemed not to be entitled services:
“Unfortunately, the government of New Brunswick has been fighting against the equality and reproductive freedom of women, girls and trans people for decades,” said Noa Mendelsohn Aviv, director of program equality with the CCLA.
The CCLA is a long-standing advocate for reproductive justice and the right to choose and has intervened in cases including that of Dr. Henry Morgentaler in 1975, more than a decade before the eventual landmark pro-choice decision of the Supreme Court in 1988. Morgentaler launched many legal actions directed at strengthening abortion rights in Canada, opened twenty clinics and trained more than one hundred doctors in North America in abortion procedures including vacuum aspiration. In 2003, Dr. Morgentaler sued New Brunswick for its refusal to fund clinic abortions. The 12 year-long lawsuit was called off without resolution upon Morgentaler’s death in 2013.
The Supreme Court of Canada, in its decision to strike down Canada’s abortion law, did not actually recognize a constitutional right to abortion. Instead, the Court left it to Parliament to develop a new abortion law that would balance the rights of women with the state’s interest in the protection of the fetus, without offending the Charter.
It is incorrect though to interpret the Canada Health Act (CHA) as requiring provincial governments to pay for all abortions. Provinces are required to pay for “medically necessary” services through their provincial health care insurance plans, but the CHA does not specify what those services are and leaves it up to the provinces to decide. If a province does not designate a procedure as being medically necessary, then that province is under no obligation to fund it through its health care insurance plan.
Long-time Liberal Member of the Legislative Assembly, Denis Landry, applauded the new generation of party members, including then Premier Brian Gallant, for modernizing their view on the issue of abortion rights when in 2014, the Liberals switched gears in support of greater access to abortion in hospitals. Landry famously said, “I have a hard time to manage my own body. Why should I be trying to manage somebody else’s body?”
Dr. Adrian Edgar has provided abortions at the private, Fredericton-based Clinic 554, and condemns the provincial Progressive Conservative government’s inflexibility in keeping Regulation 84-20 in place since winning by an overwhelming majority in 2020.
There are three approved hospitals in New Brunswick that offer publicly funded surgical abortions which, according to the CCLA, denies 90% of New Brunswickers adequate access to abortion services in their community. One facility is in a small Northern city, Bathurst, that only serves patients from that area, and the other two are in Moncton, a city of 70,000 people. With hospitals limiting when abortions will be provided, the wait times, quotas and travel requirements cause grave access issues. This is a particularly poignant concern for marginalized women dealing with poverty or domestic violence.
Their rights to liberty, security, privacy and equality are not seen be effectively protected.
In 1967 the New Brunswick Human Rights Commission (NBHRC) was created to administer the Human Rights Act (NBHRA) which ensures that every New Brunswicker alleging discrimination has a means to lodge a complaint and have it resolved, resulting in protection from discrimination based on any of the sixteen prohibited grounds.
The NBHRA states that, “Every person is free and equal in dignity and rights without regard to race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, family status, sexual orientation, sex, gender identity or expression, social condition or political belief or activity.”
Canada has painstakingly overcome an imperfect past to become a champion of human rights on the world stage. Human rights are protected by Canada’s Constitution and by federal, provincial and territorial legislation. The Canadian Bill of Rights of 1960 outlined fundamental freedoms and equality rights, the first example of human rights law at the federal level and today, awareness of human rights is greater than ever.
Now, the CCLA is adamant about defending New Brunswick women’s, girls’ and trans peoples’ access to abortion, referring to it as a basic form of health care.