The New Brunswick Abortion Law Repeal: Only Half the Story

Joanna Erdman celebrates the New Brunswick decision to eliminate barriers to abortion access.

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The New Brunswick government has just announced that it will repeal two controversial requirements in Regulation 84-20 – the requirements limiting public funding for abortion services to those performed by a specialist and certified as medically required. As these requirements are barriers to abortion access, their repeal should be celebrated.

Both of these requirements are relics of another era. Clinical safety has not justified the first requirement (that abortion services be performed by a specialist) for some time. And, the Canadian Supreme Court long ago showed the second requirement (that an abortion be certified as medically required) to be a cover for gross injustice. The term “medically required” provides no meaningful standard on the basis of which to decide that, as a matter of law, an abortion should be funded. Reliance on this term allows individual practitioners to reach individual decisions about access to abortion, creating the potential for inequity in access. This was precisely the reasoning of the Canadian Supreme Court in R v. Morgentaler (1988) to defeat the criminal abortion law. The Court said it was grossly unjust to decide a legal entitlement to health care on the basis of such a vague and uncertain standard.

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Photo by Corbin Fraser

The Court further reasoned that the criminal abortion law unjustifiably restricted abortion services to hospital settings. While the in-hospital requirement may have been medically justified in the past, the Court held that it was now an “exorbitant” requirement. Given this precedent, it is most regrettable that in taking down barriers to abortion access, the New Brunswick government decided not to repeal the requirements in Regulation 84-20 and s. 2.01(b) of the Medical Services Payment Act that restrict public funding to hospital-only abortions. This restriction has no safety or cost justification and it undermines the government’s stated commitment to improving access. It too should have been repealed.

Legal funding restrictions, however, are not the only barriers to abortion access that the New Brunswick government has identified, and on which it has committed to take action. In its Press Release, the government has also spoken about barriers in the timeliness of access, the availability of accurate and non-judgmental information, and the capacity of the health system to provide services. On these barriers the government has committed to work “with the regional health authorities to increase capacity and improve timeliness of access … [and] to improve access to accurate and non-judgmental information.”

With this commitment, the New Brunswick government may have promised more than Canadian governments (federal and provincial) have promised in many years. Indeed, the true measure of the New Brunswick government’s achievement in reproductive health may not be in the mere repeal of regulatory barriers, but in its willingness to positively intervene to ensure that abortion services that are eligible for funding are also accessible in practice.

We have long known that legal repeal of barriers to abortion access is not enough to guarantee access. We saw this in the aftermath of R v. Morgentaler. Following the repeal of the criminal abortion law, new access barriers emerged. For example, hospital boards refused to offer services. Harassment and the threat of violence led abortion providers to exit the field, and discouraged new providers from entering the field. Conscientious refusal and crisis pregnancy centers deliberately misled and frustrated access to abortion services.

These barriers remain very real today and may require positive government action to address them. This would include regulations to protect abortion service providers’ privacy and security, to require hospitals to provide full reproductive health services through insurance mandates, to ensure safe access to service facilities free from harassment, and to set professional duties to provide accurate, non-judgmental information and to refer in cases of conscientious refusal.

Reproductive justice not only demands the repeal of unjust regulation, it also demands that government regulate in the interests of affected communities. This will sometimes require that abortion be treated like any other insured health service. And, it will sometimes require that government regulate to address unique barriers to abortion access in the service of health and rights.

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Joanna Erdman is the MacBain Chair in Health Law and Policy, Assistant Professor of Law, at Dalhousie University, Halifax, Canada @joannaerdman

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