New Brunswick eases restrictions on abortion, but there’s still a long way to go

by Karen Rawlines

As of Jan. 1, 2015, abortion access in New Brunswick will change: Women will no longer need the approval of two physicians to get an abortion, and the procedure will no longer need to be performed by a specialist.

Those changes are important improvements in a province that lost its sole abortion clinic this summer, yet reproductive health activists say the changes still don’t go far enough.

But they’re a start. Premier Brian Gallant announced Wednesday morning that his Liberal government will amend Regulation 84-20 of the Medical Services Payment Act, effective New Year’s Day. The amendment is intended to place reproductive health procedures in the same category as any insured medical service.

“We have identified the barriers and are proceeding to eliminate them in order to respect our legal obligations under the Supreme Court of Canada ruling and the Canada Health Act regarding a woman’s right to choose,” Gallant said in a media release.

The barriers listed in the release include the requirement to have “written certification by two doctors prior to being able to access the service; timeliness of access; availability of accurate and non-judgmental information; and capacity within the system to provide the service.”

The announcement was well received by reproductive health activists—with an eye for more.

“A great first step, and none too soon,” says Jula Hughes, a University of New Brunswick law professor. “New Brunswickers with unintended pregnancies have been desperately waiting for this announcement, I am so glad it came today. Kudos to all the activists and allies who made this happen.”

New Brunswick lagged behind other provinces in abortion access due to the law, but women were able to work around the restrictions and receive abortion services through the private Morgentaler Clinic in Fredericton. That clinic, however, closed in July when it was no longer able to sustain itself financially.

According to information compiled by the Abortion Rights Coalition of Canada (ARCC), the Morgentaler clinic was able to assist women until their 16th week of pregnancy at a cost of about $700 to $850. The clinic, which often served women from PEI as well as that province too is without its own dedicated clinic, performed as many as 700 abortions a year. The clinic also helped women who were past 16 weeks get access to services in other provinces where later abortions are performed.

This week’s changes won’t reopen Morgentaler clinic

“The battle is only half won,” says Joyce Arthur, Executive Director of ARCC in Vancouver. “After 20 years, New Brunswick women are finally being treated like adults by their government.”

“The credit for this victory goes to the group Reproductive Justice New Brunswick, all the other hard-working activists on the ground in New Brunswick, and everyone across Canada who forced New Brunswick to account for itself on the national stage. It was the reproductive rights movement that made this happen—not the New Brunswick government, who acted 20 years too late.”

Too late and yet not quite enough. Arthur says there is still a need to open a new publicly funded clinic to offer comprehensive women’s health services, and that means still more changes to legislation are required.

“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 RJNB spokesperson Jessi Taylor in a statement. “In addition, clinics are the most fiscally responsible model for a province with limited resources like New Brunswick.”

Arthur says the province needs to “repeal its other regulation that arbitrarily (and illegally) limits funded healthcare to hospitals.”

The Medical Services Payment Act, Section 2.01, states that “Notwithstanding any other provision of this Act, the medical services plan shall not provide payment for: (b) entitled services furnished in a private hospital facility in the Province.”

In an email, Arthur says that “excluding private facilities from payment is illegal under the Canada Health Act, because Health Canada required all provinces in 1995 to fund all medically required procedures whether done in hospitals or private clinics.

“So we need to get that one repealed too, because otherwise it will prevent the Morgentaler Clinic from being re-opened (by the group Reproductive Justice NB who have raised over $130,000 to do so) as a comprehensive, publicly funded women’s health clinic that includes abortion services.”

But, “there is no plan to amend s. 2 of the Medical Services Payment Act,” a spokesperson for Premier Gallant told the Halifax Examiner via email.

Still, Arthur and others remain driven and optimistic. “It’s important and great to expand hospital access as Gallant is promising, but a new clinic would be really great in addition, and the infrastructure is already there!”

Christopher Kaposy, assistant professor of health care ethics at the Memorial University of Newfoundland, says clinic access simply makes for better health care for women.

“Abortion access in Canada always improves when independent clinics are available to women. This is my reading of the history,” he says. “It [abortion access] should be offered in hospitals as well. But with clinics, there is less control by health authorities and by governments, and fewer ways that barriers can be created.

“If you look at some of the work by Canadians for Choice and others over the past 15 years looking at access in hospitals, you find that there are various ways that people can interfere with women seeking access to abortion in hospitals. There are often self-appointed gate-keepers from receptionists and nurses all the way up the line who control information, misdirect requests, etc.”

Kaposy says safe, complete access to abortion means that “you can get an abortion when you need one, with minimal delay, without having to get numerous referrals (or any referrals), and without having to travel (or travel very far if you live in a rural area).”

In an interview prior to the news of the change, Kaposy said “a government that tolerates this lack of access doesn’t really care about women.”

And he said it’s hard to figure out why it took so long to make the tide turn in New Brunswick: “I don’t know why. PEI is in a similar situation. I would say that progressive politics has been longer in taking hold in these places. There is a real entrenched conservatism in these provinces.”

But the recent change in New Brunswick could signal a shift—and, as Hughes said, none too soon: In addition to stories of women heading to Maine to get service they couldn’t get at home, activists were hearing reports of women terminating their own pregnancies without medical assistance because they were unable to access the health care system. This involved high doses of drugs (misoprostol, for instance) to miscarry.

Self-performed abortion lacks necessary supervisory medical care. And if women are unable to access the drugs or travel, they may take more drastic measures involving unsanitary instruments; then, Kaposy says, “you might start hearing about women with sepsis or other horrible health conditions that result from taking matters in your own hands.”

Kaposy said the situation in New Brunswick ranges from “really inconvenient (if you are rich, able to take days off work and travel, have supportive partner, etc.) to utterly desperate (for those who are poor, young, in abusive relationships, unable to travel, take time off work, etc.).”

Arthur: women should sue for monetary damages

In an interview days prior to the announcement, not knowing the change was coming, Arthur said the situation was dire.

“Women are risking their health and lives and the previous government didn’t even care,” she said. “When abortion access is restricted, people with money and resources can always find care, while the most vulnerable people are denied care or have to resort to desperate measures, including the poor, young, trans*, Indigenous, immigrant, disabled, and other marginalized groups.”

Arthur said the payment regulation is “unconstitutional and illegal because it violates the spirit of the 1988 Morgentaler Supreme Court decision by imposing extra and arbitrary requirements unrelated to the health of the woman.” She said it also violates all five principles of the Canada Health Act, as well as human rights legislation that prohibits discrimination because any law that affects only women and not men is automatically discriminatory.

And leading into the Gallant announcement, Arthur said women have still been struggling to deal with the New Brunswick abortion system for 20 years. She called the suffering and the deprivation of their rights “unconscionable.”

Arthur cited a successful lawsuit in Quebec, which involved women who paid supplementary fees for abortions between 1999 and 2006.

She said it would be great to see a class-action suit against the government by women who had to pay out of pocket, either at the Fredericton clinic or out-of-province, over those past 20 years for the legal medical procedure of having an abortion.