Introduction I. Historical Developments and Current Law II. The Scope of Provincial Jurisdiction A. Case Law on Provincial Attempts to Regulate Abortion (i) The Supreme Court of Canada's Decision in Morgentaler 1993 (ii) Bill 53 and the Court of Appeal for Saskatchewan (iii) Morgentaler v New Brunswick B. Pith and Substance Doctrine and Use of a Law's "Practical Effects" C. Measures Restricting Access to Abortion and the Medical Literature (i) Women's Health (ii) Hospital Regulation, Professional Regulation, and the Health Care System (iii) Other Bases for Jurisdiction D. Division of Powers and the Establishment of Medical Facts Conclusion Introduction
In this paper, I address provincial competence to regulate abortion pursuant to section 92 of the Constitution Act, 1867. (1) This issue has received little in the way of comprehensive, critical treatment in the legal scholarship. Many scholars have canvassed federalism issues associated with health care regulation generally in Canada or particular subsets of health regulation, like epidemic management. (2) The handful of pieces that deal with federalism and abortion specifically are mostly reviews of the Supreme Court of Canada's 1993 decision in R v Morgentaler (3) (Morgentaler 1993) and tend to be somewhat descriptive and conclusory in their treatment of doctrinal federalism issues. (4) The oft-made observation that provinces have jurisdiction to regulate abortion provided the legislative objective is aimed at health, while accurate, does not reveal much about what that regulation may actually look like. Through a discussion of precedent, division of powers law, and a review of the medical literature on abortion restrictions, this paper addresses that overlooked issue.
My concern in this paper is abortion-specific regulation (5) that may have the effect of restricting access to the procedure. Examples of these sorts of restrictions, some of which are found in many American states, include: waiting periods; prohibitions on abortion after a certain gestational age; limits on where abortions can be performed or who can perform the procedure; requiring consent from or notification to spouses of women seeking abortions; or requiring provision of information about health risks, the fetus' health or moral status, or alternatives to abortion. (6) As I discuss in this paper, a review of the medical literature reveals that much of this sort of regulation is, by its very nature, directed at the suppression of abortion on moral grounds, rather than legitimate concerns about women's health. Thus, I argue, division of powers doctrine and relevant precedent likely preclude much provincial regulation of this nature.
Even though no provincial legislature has sought to enact statutory restrictions on abortion in recent years, detailing the scope of provincial jurisdiction is still a timely, important exercise. First, because the issue remains politically contentious, it is possible future provincial legislators could seek to regulate the procedure. In 2017, several candidates running for leadership of the Saskatchewan Party (which currently forms government in that province) vocalized anti-abortion positions. (7) Similarly, in the 2018 leadership race for the Progressive Conservative Party of Ontario, Doug Ford (now Premier of Ontario) suggested that parental consent should be required for minors seeking abortions. (8) Even though Canadians tend to support liberal abortion policies (9) and restricting access might thus prove politically difficult, comments such as these indicate that provincial leadership may consider the introduction of such legislation or will use the rhetoric or promise of abortion restriction to consolidate partisan support. In other words, politically, abortion restrictions remain "on the table".
Second, while provincial policies have been liberalized in the past several decades, barriers to access continue. (10) As recently as 2016, Prince Edward Island residents had to leave the province to obtain abortions. (11) In other provinces, medicare coverage for abortion is restricted. (12) Institutional issues, like physician training and resource limitations, impose additional hurdles. (13) As several authors have noted, for many Canadian women, accessing abortion remains onerous, decades after abortion has been decriminalized. (14) Given that abortion is a contentious political issue and provincial barriers to access remain in place, legislators, lawyers, and citizens ought to be aware of the jurisdictional constraints on provincial legislatures in this field.
Finally, the jurisdictional question is important for another reason: under the Canadian Constitution, the division of powers is inviolable, unlike many Charter rights. (15) There is no federalism equivalent of the Charters notwithstanding clause. Given the significant Charter hurdles associated with abortion regulation, a government seeking to restrict access to the procedure may opt to employ the section 33 notwithstanding clause and avoid the Charter issue altogether. The same cannot be done to circumvent federalism constraints. Despite the plethora of academic articles dealing with abortion under the Charter, the reality is this: Charter rights can be swept away; division of powers restraints cannot. In the long run, the jurisdictional constraints may prove hardier than the Charter requirements.
A preliminary matter must be addressed. I approach this paper neutral as to the desirability of abortion regulation, taking no position on whether abortion should be subject to more or less restriction or whether access to it should be made more or less onerous. Nor is the Charter considered, except as necessary to provide context for the jurisdictional discussion. I focus on division of powers to cast light on the overshadowed jurisdictional question, but I do not deny the obvious rights implications of abortion regulation. Those interested in Charter rights and abortion have a plethora of scholarship to peruse. (16) In this stream of scholarship, little attention is generally given to division of powers issues, and the rare comments about jurisdiction are usually accompanied by criticisms of Charter-infringing provincial policies. These discussions cast federalism as a barrier to the realization of Charter rights. However, as I discuss in the conclusion of this paper, while provincial laws and policies have historically created obstacles for women seeking abortions, federalism doctrine could be enlisted to facilitate access to abortion through jurisdictional challenges to provincial restrictions.
This paper consists of several parts. In the following section, I briefly set out the history of abortion regulation in Canada and provide an overview of the current regulatory framework. In the next part, I review relevant precedent in order to set out the contours of provincial capacity to regulate abortion. I pay particular attention to the role colourability played in Morgentaler 1993. I then set out the pith and substance doctrine, and I comment in some length on the use of practical effects in determining validity. I then discuss the sorts of abortion restrictions that have been enacted or considered in Canada and the United States. A review of the medical literature reveals that many of these regulations have no demonstrable positive impact on women's health or the regulation of hospitals. I consider various potential heads of power and conclude that provincial capacity to enact these sorts of restrictions is limited. The final part of the paper delves into judicial review of factual claims that accompany jurisdictional claims. I envision a legislature relying in good faith on "bad" medical science and employing a legislative presumption of fact. Parliamentary supremacy suggests these factual claims are not reviewable; federalism suggests they are. I discuss these tensions and the standard in play when a court evaluates whether the factual matrix underlying a jurisdictional claim exists. Finally, I conclude with comments on how federalism concerns could shape Canadian abortion regulation in the future.
Historical Developments (17) and Current Law
New Brunswick enacted the first statutory prohibition on abortion in the British colonies in 1810. (18) Throughout the early 1800s, other colonies followed suit, though the scope of prohibitions varied. (19) Many of these statutes mirrored the common law distinction between pre- and post-"quickening", regarding abortion before quickening as less serious (at common law, abortion prior to quickening was not criminal). (20) Additionally, at this time, women were not the subject of prosecution, but rather the laws were used to target abortion providers. (21) Anti-abortion laws became increasingly restrictive and expansive in the second half of the 1800s: women became the target of sanction and the quickening distinction was dropped. (22) Constance Backhouse's research suggests that the increasingly punitive legislation did not appear to flow from public outrage over the practice, but likely from a burgeoning medical profession attempting to create a monopoly on the provision of health services. (23) Following Confederation, the federal Parliament, seeking to consolidate provincial criminal statutes, enacted An Act Respecting Offences Against the Person. (24) The statute made it an offence to provide or receive an abortion or to supply or obtain any thing knowing that the thing would be used to cause an abortion. (25) The prohibition on abortion was included in the 1892 Criminal Code and revisions of the Code in the decades that followed. (26)
In 1969, Parliament amended the Criminal Code to introduce an exception which permitted women to seek approval for abortions from "therapeutic abortion committees" established by hospitals for the purpose of reviewing such requests. (27) Committee approval was only forthcoming if "in its opinion the...