Abortion – An access undermined by federalism

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*Animated headlines scene* 

Why is it important for a woman to have access to abortion? Well for women the ability to control procreation both the timing of it but also the choice around whether you want to take on that lifetime responsibility and whether you’re in a place in your life where that feels like it’s something you can handle. I think it’s key that women have autonomy over their bodies.  

Well, we know that there are many reasons as to why there are unplanned pregnancies, or that a pregnancy that was planned becomes unwanted. So it’s important for each person to have control over their body, control over their life and then decide if they want to be a parent and when they want to be a parent, it’s fundamental in deciding their future. 

That abortion is considered Health Care. It is a medically necessary service that is funded by the provinces and the division of powers operates under Section 92 to give the province’s jurisdiction over Health Care. Our constitution does a good job in setting out spheres of responsibility between the federal and provincial governments and Health Care is one where you know increasingly, because of the cost of Health Care and it is so so expensive to deliver, the provinces have to admit that they can’t exert pure constitutional power in this area it’s just impossible. It can be tense when you have for example a you know a party like the liberal party is in control of the federal government but you have a province where you have a conservative Premier, there can be intentions there but the system only works if everyone works together because the provinces cannot do it alone they simply can’t they have to rely on the federal funding.  

The Canada Health act’s purpose is to ensure consistency and accountability across the country in healthcare delivery.  

The Canada Health Act states that all medically necessary services should be available without charge to all insured persons 

Your Access to Health Care into medically necessary Services should be the same and it also ensures that you should not be paying out of pocket for any Services there should be no direct billing of patients it should all be funded up front by the various provinces. So the federal government is the huge funder of Health Care in Canada, but the administration is done by the provinces. The federal government is limited to its funding power in that respect all they can do is exert financial pressure so one thing they could do is exert more financial pressure. The amount of money that they’re clawing back is a pittance, it’s a very small amount of money. They could do a better job of enforcing the Canada Health act by making the penalties stronger for non-compliance  

It does leave the provinces with a certain amount of power to put barriers in place. But because Healthcare is a provincial responsibility it allows those kinds of regional barriers to be put into place and it becomes harder to dismantle them because you have to fight in each province separately you can’t have like a national case that would ensure equality of access. So the Canada Health act then can be used as a stick by the federal government to claw back money from the Canada Health transfer when a province is not abiding by this universality requirement that requires universal access across the country. The federal government’s role in ensuring that it’s the same across the country is just too important for the division of powers issues to become overriding in this case. 

At this point in time, not all provinces ensure that services are free. So we know that in New Brunswick, for example, some women who decide to go to a private abortion clinic will have to pay significant fees, so I think that the government could withdraw from the health fund to try to put pressure on New Brunswick, for example, to offer more accessible abortion services. 

There have been provinces that have had anti-abortion politicians who have tried to, I guess, further stigmatize abortion or to decrease its availability by refusing to pay for abortions in clinics. 

Unfortunately there are still many barriers that prevent people from accessing abortion services, for example, abortion clinics and service points are poorly distributed throughout the country. As a result, there are still a lot of taboos and barriers to accessing information. When we think that the provinces can put in place for example policies to ensure accessibility to services is a provincial jurisdiction, then there are things that the provinces can do. 

if you pass a law, it will immediately be challenged and then we’ll be in court talking about abortion and I’m happiest when no one is talking about abortion from a legal perspective because the way we treat it now, it’s just a medical service like any other medical service. My feeling has always been that the best thing the federal government can do is to continue to make sure that there are no criminal laws around abortion, that they use the carrot and stick of the Canada Health act to you know. entice provinces to ensure access and punish those that are putting up barriers. But from a legal perspective having no law is better than a law that leads to a lot of Court challenges. The court of appeal in Ontario was really clear that abortion is a service that carries a history of stigma and moral outrage. I would hope that abortion would be destigmatized, that we would be able to talk about it as just another medically necessary service and so I would like to see more providers, I’d like to see it incentivized and taught in medical schools and ultimately I would like to see provinces just accept that abortion is necessary that it should be performed at every publicly funded institution there should be no barriers in place we don’t need referrals we don’t need to have it done in a hospital it can be done in a clinic we should just move forward and quit treating it like it’s something that people should be ashamed of. 


Women’s rights are also very important. We saw what happened in the United States and we don’t want any repercussions on this side. It’s frightening a little bit afterwards when we see what happened and it’s a movement of rights that is important in Canada too, that we make sure that we don’t leave in the same situation  

I think that what we want is that each person who is pregnant and does not want to be pregnant can have access to the service, without any barrier. 

Since the reversal of Roe v. Wade, abortion rights have become an even more pressing issue. However, there is no federal law in Canada that governs access to abortion. Thus, access to abortion depends on provincial health policies and will vary across the country. The Canada Health Act, passed by Parliament in 1984, sets out certain conditions that provinces must meet in order to receive federal funding for the delivery of health services through the Canada Health Transfer program. The Federal Parliament provides health funding to the provinces and the provinces administer health services as they see fit. The Canada Health Act creates legal tension between these two levels of government since the federal government can, with its spending power, require certain actions from the provinces even though health is a provincial jurisdiction.

In an effort to educate and raise awareness about the legal factors that can restrict access to abortion in Canada, three civil law students met with two speakers to discuss these issues. They met with lawyer Daphne Gilbert, a University of Ottawa professor specializing in constitutional law, and Ms. Patricia Larue, Executive Director of the Clinique des femmes de l’Outaouais, to explore the legal issues that can affect access to abortion and to better understand the real barriers for women who are entitled to safe access to this service in all regions of the country.

This visual advocacy video was produced by law students Majorie Larochelle, Carol-Ann Tremblay and Daniela Rodriguez as part of the Visual Advocacy/Law and Film course offered at the University of Ottawa Faculty of Law, Civil Law Section.

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