Drafted in partnership with the National Association of Women and the Law
Following the U.S. Supreme Court decision overturning Roe V. Wade, Canadians may be wondering how we can better protect our right to abortion in Canada. While introducing laws may seem like an appealing option, creating legislation in Canada could actually make it easier for the U.S. situation to happen here.
Why We Don't Need A Law
Abortion is Health Care
In Canada, abortion is already decriminalized; meaning that no criminal law tells us how and when abortion can be offered. In fact, the Supreme Court of Canada, in multiple decisions, has consistently ruled that such restrictions on abortion violate the Canadian Charter of Rights and Freedoms. Instead, abortion is considered and regulated as a medical procedure.
Want more info? The Canada Health Act is the Federal law that dictates how health care works in Canada. While provinces and territories oversee how their health care system is managed, they must be operating within the guidelines of the Act to receive Federal funds. These guidelines include five principles for insured services: public administration; comprehensiveness; universality; portability; and accessibility. Abortion is an insured service protected by these solid standards that, when enforced, can protect access to abortion.
An Abortion Law Would Open the Door to New Restrictions
Introducing a new law to protect abortion would politicize this medical procedure in a way that no other medical procedures are politicized. For example, there is no law that says that we have a right to a hip replacement and tells us when and how we would be allowed to get one. You get a hip replacement if you need one and it is offered by a health care provider who follows the science and the rules of their profession.
If the Government tries to create a bill to guarantee the right to abortion, it will open the door to anti-choice politicians trying to put limits on abortion for a variety of reasons that have nothing to do with science or medical need. There are many politicians that are already trying to bring in private members’ bills that would limit access to abortion. A new law could make it easier to propose amendments or limits that so far, have never succeeded.
What Can be Done to Make Sure People’s Right to Abortion Care is Safe in Canada?
While the situation in Canada is different than in the US, we need to be vigilant. There is work to do to make sure everyone can have equal access to abortion care in Canada. There are many steps the Federal Government and Provincial Governments can take to improve abortion access in Canada, that do not include a new law.
1. Strengthen Enforcement of The Canada Health Act (CHA).
The standards of the Act make clear that abortion should be accessible across the country. The CHA establishes criteria and conditions for insured health services (which include abortion) that provinces and territories must fulfill to receive the full Federal cash contribution under the Canada Health Transfer.
One province still has an unlawful regulation that limits access to abortion. In other provinces, patients must pay administrative fees (which should be covered by the Act). In most situations, abortion care requires significant travel (and related travel costs) to get to an abortion provider.
The Government of Canada has an obligation under the Canada Health Act to intervene where provinces have not addressed access issues. While the Government of Canada has made efforts to get provinces to comply (including by withholding funds), the current penalties under the CHA are not effective enough in preventing provincial governments from impeding abortion access. More needs to be done.
2. Provinces and Territories must respect the Canada Health Act and ensure that health care providers and institutions have the infrastructure they need to provide abortion care.
For example, billing codes for medical abortion, timely access to ultrasound services, a policy for the timely coverage of out-of-country care, etc. Governments should also work closely with Provincial professional colleges to ensure they have solid policies on conscientious objection and support the expansion of scope of practice for midwives and nurse practitioners for the provision of medical abortion where it’s not already the case.
3. Create the promised Health Canada web portal that will feature accurate, unbiased information on sexual and reproductive health and rights and will address abortion disinformation.
Disinformation about abortion can have an important public health impact and fuels abortion stigma. Some of the Government funding can also be used for targeted marketing campaigns to ensure that those wanting information and support for an unintended pregnancy are led to reputable sources.
4. Increase Federal Health Transfers with ties to the expansion of reproductive and sexual health services across the country.
Considering how health responsibilities are delineated in the Constitution, we recommend that the Government consider how it can better use its spending power. They can do this through attaching specific conditions to Federal Health Transfers to ensure that provinces are taking action on improving the availability and accessibility of sexual and reproductive health services. Particular attention should be paid to abortion, including regulating conscientious objection in line with international standards.
5. Permanently Fund the new Health Canada Sexual and Reproductive Health Fund
In 2021, the Federal Budget included a historic announcement of $45 million dedicated to expanding access to sexual and reproductive health services by supporting abortion travel and educating health care providers on systemic barriers to care. The funding, which was rolled out in 2022, is set to expire in 2024 despite the crucial services that are being funded, such as support for individuals traveling to abortion appointments. This fund must be made permanent.
