Abortion restriction in New Brunswick lifted but access still a problem

Fredericton – Accessing a publicly funded abortion in New Brunswick will no longer require two doctors certifying the procedure as “medically necessary” after January 1, 2015. Newly elected Liberal Premier Brian Gallant announced the removal of the restriction found in the Medical Services Payment Act on Nov. 26.

Abortion has been legal in Canada since the 1988 Supreme Court of Canada decision in R. v. Morgentaler, yet according to University of New Brunswick law professor Jula Hughes, PEI and New Brunswick have used provincial health legislation to defeat the law. PEI has simply denied islanders abortion services while New Brunswick introduced restrictions to abortion access.

“It is worth recalling the current access problems, both legal and non-legal. Legal access barriers include not only the two-doctor rule, but also s. 2.01(b) of the Medical Services Payment Act that does not allow public funding of services done in private clinics. This law was adopted in direct response to the Morgentaler clinic and despite its neutral language, it has never been about anything other than abortions,” argues Prof. Hughes.

The amendment to the Medical Services Payment Act was brought in 1994 when then Liberal Premier Frank McKenna vowed to stop Dr. Henry Morgentaler from setting up an abortion clinic in Fredericton.

“If Mr. Morgentaler tries to open a clinic in the province of New Brunswick, he’s going to get the fight of his life,” said McKenna. McKenna’s amendments restricted abortion access, but did not stop Morgentaler from operating the only private abortion clinic in the Maritimes in Fredericton for 20 years.

The abortion clinic closed in July due to lack of government funding. Morgentaler had been subsidizing the abortions of those who could not afford to pay until his death in 2013.

“As a province, we have a responsibility to respect women’s rights and our legal obligations by providing this procedure in a safe environment like any other insured service under Medicare,” said Premier Gallant.

Conservative Opposition Leader Bruce Fitch says his party will bring the changes to abortion access to a vote when the Legislature resumes sitting next week.

Reproductive Justice NB (RJNB), an organization that formed days after the announcement that the Fredericton Morgentaler abortion clinic would be closing, calls Gallant’s move to repeal the abortion restriction an important first step in bringing New Brunswick law in line with the Canadian Constitution, the Charter and the Canada Health Act, but argues that the removal of a legislative barrier does not guarantee access to abortion services.

“In failing to apply reproductive health best practices by refusing to fund services outside of hospitals, New Brunswick continues to be in violation of the Canada Health Act,” says Jessi Taylor with RJNB.

“People are sometimes treated in a punitive way when they access abortions in some hospitals. There are also confidentiality problems when abortions are provided in a hospital,” says Taylor.

Her concerns are shared by the New Brunswick College of Family Physicians and Surgeons in their reaction to the news that more hospitals in New Brunswick may be doing abortions. They liken accessing the service in a hospital to going to an airport: “lots of people, no real privacy.”

Currently, only two hospitals in New Brunswick, the Moncton Dr. Georges-L.-Dumont University Hospital Centre and the Bathurst Chaleur Regional Hospital, perform abortions.

At the time of its closure, the Morgentaler Clinic in Fredericton was performing about 600 abortions or 60 per cent of the procedures every year in the province. The Mabel Wadsworth Clinic in Maine is reporting a rise in New Brunswickers accessing their abortion services since the closure of the Fredericton clinic.

Lacking abortion services in Atlantic Canada means those needing the procedure face needless hardships, according to abortion rights activists.

Atlantic Canadians from rural areas often have to pay for travel, accommodations, child care for children at home and other costs that are covered by other provinces. Next door in Quebec, 46 facilities offer abortion services, half of which are in rural areas. Abortion services are provided at community health care clinics in every region of that province.

Reproductive justice activists, including RJNB, the Fredericton Youth Feminists, CUPE NB and other unions, will rally for reproductive health care when the new government sits in the Legislature for the first time on Dec. 3 at 12:00 p.m. They will demand a repeal of the law that restricts the public funding of abortions to hospitals, the public funding of reproductive health services throughout the province and reproductive justice.

For them, reproductive justice will exist when all people can access the health care they need to thrive and are empowered to decide if, when, and how to have or parent children, with dignity and support. It’s in line with Dr. Morgentaler’s motto, “Every mother a willing mother, every child a wanted child.”

Abortions are only one piece of reproductive health care and New Brunswick needs to provide better health care for everyone, according to Prof. Hughes. “We need better access to contraception, better support for people who choose to parent and better support for foster and adoptive families.”

Beth Lyons, a Moncton-based feminist writer and organizer, welcomes the news that Gallant is a lifting a barrier to abortion access, but says we cannot fully celebrate while many suffer from violence and injustice that is supported by our institutions.

“Reporting sexual assault is still not a viable option for so many [especially folks who are marginalized by racism, colonialism, immigration status, ableism, transphobia, classism, conflict with the law, etc.]. There is currently a ‘zero tolerance for barbaric cultural practices acts’ bill tabled that purports to be about violence against women but is rooted in racism and xenophobia. There are over a thousand murdered and missing Aboriginal women in Canada. None of us are free until we’re all free,” says Lyons.

Tracy Glynn is a Fredericton-based writer and editor with the NB Media Co-op. 

First published by Rabble.