Abortions: Coming soon to PEI

Nasha Nijhawan and Kelly McMillan explain why the PEI government has finally elected to provide abortion services on the Island.

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On March 31, 2016, the Premier of Prince Edward Island, Wade MacLauchlan, announced that by the end of 2016, PEI will develop a plan to open a reproductive health clinic offering medical and surgical abortions in an Island hospital. This announcement represents a sudden reversal in the Province’s 28-year-old policy not to provide abortions on the Island.

Following last week’s reversal, the question on every reporter’s lips was: “why now?” As Premier MacLauchlan candidly admitted, his decision was a concession to threatened Charter litigation served on January 5, 2016 by a group of veteran advocates called Abortion Access Now PEI Inc.

As social movements rarely score their victories by merely threatening Charter litigation, the question of why this worked in this case bears comment. In our view (as counsel for Abortion Access Now PEI), this success can be attributed partly to the recent surge in creative activism by abortion access advocates on PEI, and partly to the way the litigation fundamentally reframed the discussion about what the Province was doing and why.

Image by “Shirley Karats” (artist pseudonym)

Before this litigation, the question of what exactly was PEI’s abortion policy had stumped activists and health providers alike. In 2011, the CEO of Health PEI stated publicly that there were no regulatory barriers to abortion, and that any doctor who wished to perform the procedure on PEI could do so freely. However, when a working group at the Queen Elizabeth Hospital in Charlottetown tried to develop a plan in 2014 to bring in a Nova Scotia physician to provide abortion services, the Province instructed Health PEI to stop them because it was “against government policy,” much to the CEO’s apparent surprise.

Through our research, we learned that the Province’s policy dates to a non-binding resolution of the PEI Legislature on March 30, 1988, passed in response to the decriminalization of abortion by the Supreme Court of Canada in R. v. Morgentaler. “Resolution 17” stated that PEI “oppose[s] the performing of abortions [except when there are grounds to believe the life of the mother is endangered].” This position was eventually supported by regulations restricting payment to abortions deemed “medically necessary” by a committee of doctors appointed by the Minister of Health.

The Province was able to rely on the stigma and shame perpetuated by its abortion policy to maintain the status quo for decades.

Abortion access became an election issue in PEI in 2015. However, no candidate promised to repatriate care to the Island. The best that soon-to-be Premier Wade MacLauchlan promised was better access out of the province. On June 2, 2015, newly elected Premier MacLauchlan announced that PEI women would be able to access abortion services in a hospital in Moncton, in addition to the hospital services available in Halifax since 1995. This, he said at the time, fulfilled the government’s obligation “to be in line with the Charter of Rights and Freedoms.” Abortion access advocates disagreed.

In our view, Abortion Access Now PEI’s legal challenge was successful because it was able to take the lived experience of PEI women and frame it in terms the government could not dismiss.  It had always been clear to pro-choice advocates that the Province’s abortion policy perpetuated stigma and discriminatory stereotypes about reproductive autonomy, caused psychological and physical harm (including delay), imposed financial costs on women, and prevented the most vulnerable Islanders from accessing abortion. Expressing those harms through activism, research, and first-hand accounts, however, had not proved successful in forcing the government to provide abortion services.

The litigation changed the discussion, and framed the problem in a way the Province could not ignore.

First, the application defined the “abortion policy” as the Province’s resolution not to provide abortion services on the Island, implemented through regulation and by quashing proposals to change the status quo. The identification of active government action was essential for the Charter challenge, and refuted the government’s claim that there were no regulatory barriers.

The legal challenge then attacked the province’s abortion policy in two ways. Abortion Access Now PEI argued, first, that sending abortion services off-Island contravened the government’s own health care standards contained in the Provincial Health Plan. Second, the policy offended the Charter rights of Island women under s. 15 (equality), s. 7 (liberty and security of the person) and s. 12 (freedom from cruel and unusual treatment).

During the 90-day notice period after which the legal challenge would be filed, public pressure on the government was sustained through a social media and guerrilla art campaign by “Shirley Karats” (an artist pseudonym with a nod to the Island’s beloved fictional daughter – Anne of Green Gables). The Premier was also targeted with the hashtag #HeyWade and a reference to his own campaign slogan, #ItsTime.

So why did the government concede? In his remarks to the media on March 31, 2016, the Premier acknowledged that the Province could not successfully defend the policy under the Charter. Citing legal advice, he said that “the current policy would likely be found to be contrary to equality rights guaranteed under the Canadian Charter of Rights and Freedoms as well as Charter guarantees of security of the person”.

In the end, it is clear that the threatened litigation provided the Province with both a motivation and an excuse to do the right thing.  By reframing on-Island access to abortion as a Charter issue, we were able to properly place responsibility for the harm caused by the status quo on the government’s own actions. Once placed there, the government had to face its obligations to Island women.

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Nasha Nijhawan and Kelly McMillan are partners in the law firm Nijhawan McMillan Barristers, which represented Abortion Access Now PEI in its legal challenge to the PEI government’s abortion policy.