Joanna Erdman at the “National Day of Action: Improve Access to Abortion” – a rally organized by Halifax LEAF: Women’s Legal Education and Action Fund Thursday May 29, 2014 on the first anniversary of Dr. Morgentaler’s death – calls for public funding of the Morgentaler clinic in Fredericton, N.B., and the repeal of Section 84-20 of the N.B. Medical Act which restricts public funding for abortion services.
R v. Morgentaler is our constitutional statement on abortion rights in Canada. It affirmed an individual’s right to access abortion services, but it also affirmed social equality in access. In Morgentaler, the Supreme Court struck down the federal abortion law not only because it emotionally and physically burdened individuals, but also because it created gross inequalities in access. The Supreme Court did not ignore that in parts of Canada many could not access services to which they were lawfully entitled; that many were forced to travel great distances at substantial expense and inconvenience to benefit from services generally held out to them.
The Supreme Court struck down the criminal abortion law because it was arbitrary and unfair. These are the words of Morgentaler, simply put: If governments act, they must do so properly. Morgentaler is a case not only about individual rights. Morgentaler is a case about government accountability. Then and today our constitutional rights are not secure if we are faced with a bureaucratic structure, whether criminal or not, that precludes us from accessing effective and timely care.
Morgentaler stands for the principle that governments cannot hold out access rights to abortion that are illusory – access rights that guarantee no real access to services. Morgentaler stands for the principle that governments cannot hide behind arbitrary policies, those with unnecessary requirements – hospital-only, physician-referred – which have no connection to any legitimate objective such as, safety, cost, or access. Governments cannot delay and create barriers to reproductive health care without reason, without need, and without justification. These arbitrary rules are constitutionally offensive. This is the ruling of Morgentaler.
Today social inequality and utterly unaccountable provincial governments mark abortion access in Atlantic Canada. We are no longer burdened by criminal prohibition, but access remains denied, delayed, unaffordable, and disrespectful. Access remains a privilege of those who can negotiate the health care system, travel the distance, and afford the cost.
This status quo we are told remains all that we are entitled to. We disagree.
This is not the promise of Canadian universal health care. Why is abortion care left to the altruism of volunteer and charitable organizations, and to the inequalities of the market? Why in this sphere are financial and other barriers to care irrelevant, ignored, neglected, even accepted.
Why is social inequality in access to abortion services the status quo that governments need not and will not change? Why is social inequality in access to abortion services the status quo that governments cannot and will not justify?
Our constitutional rights entitle us to more. Governments cannot sacrifice our health and equality without reason or justification, for political gain or appeasement, in technical claims of bureaucratic practice. Governments cannot hide behind the status quo.
Social equality in access to abortion services is fundamental to the constitutional rights affirmed in Morgentaler.These are our rights. We again demand them.
Joanna Erdman is the MacBain Chair in Health Law and Policy, Assistant Professor of Law, at Dalhousie University, Halifax, Canada