EQUALITY RIGHTS, ABORTION ACCESS, AND NEW BRUNSWICK'S REGULATION 84-20.

• Author: Macfarlane, Emmett
• Position: Canada

1. Introduction

   The Supreme Court of Canada (SCC) has assessed the constitutionality of both federal (1) and provincial (2) restrictions on abortion on multiple occasions. Although most of these cases were heard after the enactment of the Charter of Rights and Freedoms (Charter) in 1982, Canada's highest court only considered Charter rights substantively in one case--R v Morgentaler (1988)--and the majority opted not to engage with section 15 of the Charter, which protects equality rights, in its decision. (3) While a number of provincial court cases (4) and one intent to file suit (5) seemed poised to bring equality rights to bear on provincial abortion regulations, none of these cases were pursued as far as the SCC. (6) Thus, an important constitutional question remains: Does section 15 of the Charter require provincial governments to ensure a certain level of abortion access? Abortion is, after all, an inherently gendered service, and a substantive conception of equality rights suggests the possibility of a decisive case for a positive right to abortion access.

   This paper will address this question by looking at a live case study: New Brunswick, a province with a long history of policies restricting abortion access. (7) Although all but one of these restrictions were lifted in 2015, (8) the province still prohibits funding for private abortion clinics, (9) a reality with dire implications given the province's lack of public service points and its rural landscape. New Brunswick is now the only province in Canada that does not fund abortion services outside of hospitals. (10) The province has only ever had a single private abortion clinic, located in the capital city of Fredericton. The clinic, previously run by Dr. Henry Morgentaler, was purchased and transformed into Clinic 554 after Morgentaler's death. (11) Unfortunately, after years of financial struggles because of the government's refusal to fund abortion services there, the clinic was threatened with closure in 2019 and is currently up for sale. (12)

   We begin with a brief overview of the history of abortion regulation in Canada, which moved from a near prohibition on abortion after Confederation to restricted access as of 1969, to the 1988 Morgentaler decision, which left Canada with no criminal law restrictions on abortion. Here, we show the paradoxical nature of this shift in jurisdiction over abortion from the federal government as a criminal matter to the provinces as a question of healthcare. Although Canada's abortion law was struck down for violating section 7's right to life, liberty, and security of the person, by both profoundly interfering with "a woman's physical and bodily integrity," and by delaying access to services, (13) provincial jurisdiction over abortion reproduced many of these same infringements. (14) We then situate our case study by exploring New Brunswick's past regulation of abortion, especially its attempts to avoid and resist litigation challenging its approach. This section concludes with an overview of the latest legal challenge to abortion access in the province, brought forward by the Canadian Civil Liberties Association (CCLA) in 2021. (15) Next, we question the implications of precedent in a number of recent SCC decisions, which raise the prospects of a positive conception of equality rights. Finally, we look at the implications of these core cases for a potential section 15 challenge to Regulation 8420. We conclude that this Regulation cannot withstand Charter scrutiny.

2. A brief history of abortion regulation in Canada

   In 1969, Canada moved from a near prohibition on abortion to limited access to services when an omnibus bill led to the creation of section 251 of the Criminal Code. This provision created an exemption to the criminal prohibition on abortions provided three conditions were met: 1) the abortion was performed in an approved hospital; 2) the abortion was approved by a therapeutic abortion committee (TAC) of three or more doctors from that hospital; (16) and 3) the TAC deemed the abortion necessary to protect the woman's life or health. (17) The Criminal Code did not require hospitals to form TACs, nor did it offer any substantive guidance on how these committees should adjudicate their decisions. (18) The former provision was not surprising, as the administration of healthcare is provincial; the federal government only regulates healthcare indirectly through the Canada Health Act. (19) The result, as testified by both social activists and a 1977 Royal Commission, was the inequitable operation of the law across Canada. (20)

   Section 251 of the Criminal Code was eventually struck down in the landmark decision R v Morgentaler (1988), the first and only SCC case to bring the Charter to bear on abortion in Canada. The case was brought forward by Drs. Henry Morgentaler, Leslie Smoling, and Robert Scott, who claimed that section 251 infringed on sections 2 (fundamental freedoms), 7 (life, liberty and security of person), and 12 (cruel and unusual treatment or punishment) of the Charter. (21) The majority's ruling, which was split 5-2 in favour of Morgentaler and delivered in 4 separate decisions, only dealt with section 7 of the Charter. Specifically, the two decisions comprising the majority position focused on issues of "state interference with bodily integrity" and the resulting harms borne by women due to the unequal services afforded by section 251. (22) The majority found that these harms constituted a violation of section 7 of the Charter that were not saved under section 1. (23) Although she did not engage directly with the equality provision in her solo concurring judgment, the subtext of Justice Wilson's judgment went further, suggesting that equality considerations could not be separated from procedural access questions, explaining that abortion is "not just a medical decision; it is a profound social and ethical one as well." (24) The SCC struck down section 251 of the Criminal Code and, notwithstanding one failed attempt by the federal government to enact a new law after the fact, (25) the absence of a federal abortion law in Canada has been the status quo ever since.

   With criminal restrictions on the procedure gone, the provinces took the lead in shaping access to abortion services under the auspices of healthcare. Although abortion could now be treated like any other service, it was not. Most provinces, with the exception of Ontario and Quebec, immediately moved to create some restrictions on the procedure by withdrawing funding or restricting abortions to facilities. (26) Although many of these restrictions have since been successfully challenged in court, others remain, often in altered forms. (27) The irony is that the responses by provincial governments to their jurisdiction over abortion, specifically the focus on creating barriers to access, mimic the access issues the SCC deemed unconstitutional in 1988. (28) In many instances, provincial governments were found to have enacted these barriers by unconstitutionally legislating in the area of criminal law, under the guise of provincial jurisdiction. (29) This highlights an area of confusion regarding the interpretation of positive rights in the Charter. As Emmett Macfarlane notes, "the entire proposition of delays and unequal access constituting a Charter infringement presupposes that there is a right of access in the first place." (30)

3. New Brunswick

   One of the provinces in which it is still difficult to access an abortion is New Brunswick. Even as the government has changed hands over the years between the Progressive Conservative and Liberal parties, a bi-partisan, anti-abortion consensus hangs over the province. Only three hospitals, servicing around 10 percent of the population, provide access to abortion care, and no funding is available for private clinics. (31) What is more, the presence of even this small amount of coverage represents the concerted efforts of advocates in the province to improve access. (32) New Brunswick has spent over 30 years in and out of court attempting to subvert any critique of its regulations without engaging with the criticisms levied against it. (33) To date, it has been largely successful in this endeavour, but it is once again facing a legal battle that may force it to confront the constitutionality of its regulations on abortion access. (34)

   Morgentaler first took the government of New Brunswick to court in 1989, alleging that New Brunswick's refusal to pay for abortions performed on New Brunswick women in his Montreal clinic was ultra vires provincial jurisdiction. (35) The province had not yet created any legislation dictating how it would reimburse abortion services outside the province. Even so, then-Minister of Health and Community Services, Raymond Frenette, said that the province did have a policy in place that only allowed public funding for abortion after "it is determined by two doctors to be medically required and is performed by a specialist in an approved hospital." (36) Ultimately, however, the government was unable to demonstrate that such a policy had ever been enacted, and the court ruled that "whether such a regulation would be valid cannot be determined unless and until it is made." (37) Morgentaler won his case. (38)

   Instead of appealing the decision, the McKenna government moved quickly to officially implement the policy they had described to the court. The provincial Medical Services Payment Act was amended in 1989 to include Regulation 84-20, which declared abortion an unentitled service, except if the abortion was "performed by a specialist in the field of obstetrics and gynecology in a hospital facility approved by the jurisdiction in which the hospital facility is located and two medical practitioners certify in writing that the abortion was medically required." (39) The realities of this regulation for women in need of services in the province were grave...