Funding and abortion access in New Brunswick

The provincial government has refused to fund the clinic's abortion services, in spite of pressure and fines from the federal government that they violate the Canada Health Act.

That's unconstitutional, both under division of powers analysis and under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms, says Kerri Froc, an associate law professor at the University of New Brunswick.

Froc and her students camped out on the lawn of the New Brunswick legislature Friday night to draw attention to the issue and hold a vigil for the clinic, which is slated to close at the end of the month.

"Under the division of powers, there's Morgentaler 1993 that challenged the Nova Scotia regulations, which were quite similar to New Brunswick's," says Froc referring to a ruling by the top court that invalidated a provincial attempt to regulate abortions in Canada. "They struck down the prohibition that made it a provincial offence to conduct abortions outside of hospitals, and they struck down a provision that said that funding outside of hospitals is not funded out of medicare."

Similarly, provisions under New Brunswick law restricted abortions outside of hospitals, lest doctors be found guilty of professional misconduct. Those were also struck down in 1994, but the regulations around funding were never challenged.

"That's the residue of these unconstitutional regulations that have survived, and that's what's jeopardizing our abortion clinic in Fredericton," says Froc. "Abortions performed outside of hospitals are deemed not medically necessary under regulations."

Froc adds that based on Morgentaler 1988, there is very uneven access in the province. Of the three hospitals that perform abortions in the provinces, two are in Moncton and one is in Bathurst, leaving the western part of the province under-served.

"Clinic 554 here has been providing abortions for a fee of $750, which is also a barrier, but if women can't pay for them, they've been doing them for free, which is a big part of the reason why they're in financial dire straits," says Froc. "All of those barriers create delays; they create the kind of mental stress that was recognized in Morgentaler, the physical risk, and the liberty interest, which in the time of Morgentaler was a concurring decision but has really come into the majority in terms of being able to make fundamental personal decisions."

As for the Section 15 argument, Froc says that it's discriminatory to exclude gendered healthcare, especially as the province will pay for procedures like vasectomies performed in clinics.

"There's no real health reason to exclude them except to restrict access," says Froc. "If you look at the history of abortion in New Brunswick, it's very clear. This isn't about privatized medicine; it's not about women's safety. It's only about putting more impediments to women getting reproductive healthcare."

Clinic 554 is also the only clinic in New Brunswick that specializes in trans healthcare, and also is the closest point of contact for trans people in Prince Edward Island. New Brunswick funds those services, but it isn't enough to keep the clinic running.

While the federal government has fined the province $140,000 from its health transfers for violating the Canada Health Act, the province has dug in its heels. According to Froc, the federal government should be doing more in offering direct funding support to the clinic.

"They should provide some emergency funding just to preserve the status quo, and let us cobble together enough money to let the challenge go through the court," says Froc. "It's a pyrrhic victory if we proceed through the courts and the clinic is already gone."

There are other tools that the government has yet to use, says Colleen Flood, the university research chair in health law and policy at the University of Ottawa.

The federal clawbacks under the Canada Health Act are dollar-for-dollar for the fees charged by the clinic, but Ottawa has "the discretion to withhold more dollars to force them to properly fund services, but it's never used that," she says. "Otherwise, there's no real means to force the province to fund those services. It's quite difficult for a bystander to get standing to force the government to use its discretionary powers under the Canada Health Act to withhold more money."

Flood says that federal governments have tended to rely on political pressure to force provinces to do the right thing. She also adds that, traditionally, federal Liberal governments have interpreted the Act to include abortion services as "medically necessary," even though there is no statutory definition.

A New Brunswick legislature security official and police officers had the two tents set up by protesters removed on Friday night.

Federal Health Minister Patty Hajdu says that she has been working with the New Brunswick government "to determine how we ensure that women have access to legal and safe abortion."

But due to the COVID-19 pandemic and every province needing every healthcare dollar, there was an agreement to forgo the clawbacks applied under the Canada Health Act for the time being.

When asked whether the federal government might provide transitional funding to the clinic until it can complete its court challenges, Hajdu was non-committal.

"It's always a possibility to look at those things, but the federal government is not involved in direct healthcare delivery," says Hajdu. "It becomes difficult in terms of being able to be accountable for the money, and the outcomes and processes. We have worked with the clinic to determine whether or not that is feasible, but it is a challenge."

"I wouldn't say that everything is off the table, but again, the best path forward is really through the province, and I'll be continuing to push them to expand access to affordable and safe abortion, regardless of where a woman lives," says Hajdu.