Before 1988, when there were still laws restricting abortion in Canada, advocates for women’s reproductive rights had a hard target — the legislation — and a clear goal: get rid of it.
Twenty-five years later, abortion in Canada is viewed by many as an unassailable right, a battle fought and won.
It is only in the face of headline-making challenges to women’s reproductive autonomy that the pre-1988 outrage tends to surface, as people are reminded that women who seek access to abortion and other reproductive controls are often met with barriers.
A woman in Ottawa was denied a refill on her birth control medication earlier this year due to a doctor’s personal beliefs. A patient seeking treatment at a fertility clinic in Calgary was told that she could not be impregnated with sperm from a donor of a different race. Last month, the only private abortion clinic in New Brunswick shut down due to a lack of funding, leaving women seeking the procedure with few alternatives due to the province’s restrictive abortion regulations.
These cases range in gravity, but together they demonstrate the fragility of reproductive rights in Canada, say experts, and they highlight a need to unite against a persistent disregard for women’s choices.
“We have done a good job of eliminating openly direct forms of discrimination — for example, criminal abortion laws,” says Joanna Erdman, an assistant professor of law at Dalhousie University whose research focuses on sexual and reproductive health.
“But when the same discriminatory views are expressed in a funding restriction, a clinical policy, or the refusal of an individual provider, suddenly the issue gets more complicated. And it shouldn’t. The effect is the same. And so too should be our response.”
But is abortion a right? And do barriers to accessing it and other reproductive controls constitute a rights violation? Individual cases raise an array of legal and ethical questions that don’t always have clear answers.
Kate Desjardins, a 25-year-old Ottawa woman, went public last winter after she was denied a refill on her birth control medication at a walk-in clinic because of a physician’s personal beliefs. In a letter to patients, Dr. Edmond Kyrillos cited religious values, his “own medical judgment” and “professional ethical concerns” for providing only “one form of birth control, Natural Family Planning.”
The story caused widespread shock and outrage, particularly among those learning for the first time that doctors have a right to exercise “conscientious objection,” which allows them to refuse to provide non-emergency treatment on moral grounds.
So does that mean the rights of the doctor trump the rights of the patient?
Provincial medical colleges recognize doctors’ rights to conscientious objection, but they differ on whether the physician is required to refer the patient to someone equally qualified who will provide the requested service, or simply advise that other treatment options can be sought elsewhere. (The College of Physicians and Surgeons of Ontario guidelines do not explicitly note a duty to refer; the policy is under review, with new standards to be released in 2015.)
“There’s a general consensus in Canada that conscientious objection can be raised — carefully,” says Kerry Bowman, a bioethicist at the University of Toronto.
“I think a person can exercise conscientious objection but they have to be really, really careful and think extremely deeply about how and why they’re doing it. Because it’s a pretty major thing to say to a patient, ‘I have a moral problem with what you’re doing.’”
Canadian Medical Association guidelines compel all doctors to consider the well-being of the patient first. Critics argue that doctors who choose not to treat are putting themselves before the patient. Others say the denial of birth control by one doctor is not a big deal when it can be accessed elsewhere.
“Doctors could face legal liability if they don’t properly refer,” says Bernard Dickens, professor emeritus of health law and policy at the University of Toronto.
He pointed to a 1992 Supreme Court case (McInerney vs. MacDonald) which held that doctors owe patients a fiduciary duty to act in good conscience to serve their wishes, and must use their medical knowledge in patients’ best interests — for example, providing information about how patients can acquire services they cannot or will not provide.
Dickens does not believe the solution is to force physicians to provide treatment, but he says if access to birth control becomes a problem in Canada — particularly for women in small towns who may have only one choice of physician — the government should consider giving nurse practitioners or midwives the legal power to prescribe contraceptives.
Bowman, the bioethicist, says doctors who object to birth control have an obligation to avoid situations where they would have to deny access to it. “I actually think if a physician feels strongly that any form of birth control is a moral violation, is a walk-in clinic really the best place to be working?”
NEW BRUNSWICK CLINIC
Last month in New Brunswick, the province’s only private abortion clinic shut down, drawing attention to a decades-old provincial regulation that restricts access to the procedure.
Medicare in the province only funds abortions for women able to obtain written approval from two doctors who certify the procedure “medically necessary,” and only for abortions performed by a specialist in one of two designated hospitals. These are the rules laid out in Regulation 84-20 of the Medical Services Payment Act, created in 1989 by Frank McKenna’s Liberal government.
The restrictions make accessing the time-sensitive procedure a serious challenge, says Rachael Johnstone, an assistant professor of politics and gender studies with the Bader International Study Centre at Queen’s University. “It’s very difficult for most women to negotiate those barriers,” especially within a 12-week time frame, she says.
Johnstone, who wrote her dissertation on abortion politics in Canada, says the regulation disproportionately affects the poor, young and vulnerable, and it is similar to the federal law restricting abortion that was struck down as unconstitutional in 1988.
The two-doctor rule has been criticized because under normal circumstances, for any other medical procedure, only one doctor needs to give the go-ahead. The rule “shows that women are subject to more scrutiny, more suspicion that they’re not making justified decisions,” says Dickens.
Does the New Brunswick regulation violate women’s rights? Johnstone and many others argue it does, but section 84-20 has not been challenged in court.
Dr. Henry Morgentaler, who funded the shuttered Fredericton clinic until he died last year, didn’t think the regulation would hold up to scrutiny. He tried to fight 84-20 with a constitutional challenge launched in the early 2000s, but the case dragged on for years and never made it to court. The lawsuit was withdrawn after his death.
Since 1988, Canada has not had a federal abortion law, and it is treated like any other medical procedure. Abortion is legal, but is it a right?
“That’s a contested point,” says Dickens, the University of Toronto health law professor. “The right is to the maximum level of health. And if continuation of pregnancy threatens health then there is a right to health care, and that includes termination of a health-endangering pregnancy. If the pregnancy is not a risk to life or health then there’s no duty (for the government) to provide it.”
The Canada Health Act requires provinces to provide reasonable access to all “medically necessary” procedures, without financial or other barriers.
That means the New Brunswick government is duty-bound to provide reasonable access to safe abortion services, but only when the threshold of medical necessity is met. “And the interpretation of medical necessity is left to the discretion of individual doctors,” says Johnstone.
Without the option of a private clinic, the only alternative for New Brunswick women seeking an abortion is to go out of province and pay out of pocket, which for many is not an option.
THE CALGARY CLINIC
A private fertility clinic in Alberta made international headlines two weeks ago when a story by the Calgary Herald revealed the clinic had refused to allow a patient to be impregnated with sperm from a donor who did not share her skin colour.
“I’m not sure that we should be creating rainbow families just because some single woman decides that that’s what she wants,” Dr. Calvin Greene, administrative director at the Regional Fertility Program clinic, told the Herald’s Jessica Barrett last month. “That’s her prerogative, but that’s not her prerogative in our clinic.” Greene suggested the policy was meant to protect the best interests of the child.
The clinic later hired a communications firm to deal with the enormous backlash, releasing a statement saying the policy had not been in place for more than a year and Greene’s comments “represent his own opinions and do not reflect policies at the clinic.” Nevertheless, the story stirred intense debate and shone a spotlight on a lack of oversight across the country — fertility clinics in most provinces are unregulated.
It also raised many legal and ethical questions. Was the denial of sperm that didn’t match the mother’s race a form of discrimination? (Maybe, but not necessarily a case that would hold up in court, say legal experts.) Was it accepted by the province’s medical college? (Yes, so long as doctors advise patients about treatment options available elsewhere.) And was it ethical? (Up for debate.)
In his interview with the Herald, published in full on the newspaper’s website, Dr. Greene suggested the clinic’s policy had already been “cleared” by the Alberta Human Rights Commission, which “saw no problem with it,” he said.
A spokeswoman for the commission told the Toronto Star confidentiality rules prevent her from confirming whether a complaint about the Regional Fertility Program was ever brought forward. If a complaint had made it to the hearing stage, the information would be public.
Speaking generally about the complaint process, the commission spokeswoman said that decisions rendered are about whether discrimination has occurred in specific cases. In other words, a single complaint may have been dismissed, but it would not have led the commission to “clear” or endorse a policy.
Rights violations or not, all three cases highlight “a disregard for women’s decisions and women’s welfare,” says Dickens. “And a failure to take women’s reproductive issues seriously.”