The government of New Brunswick has embarked upon a perilous political path in recent weeks. It has decided to directly endanger the health and lives of New Brunswick women on the basis of its presumed "pro-life" religious beliefs. The main person behind this decision is, ironically, Health Minister Ted Flemming.
On April 10, the Fredericton Morgentaler Clinic announced that it must close at the end of July for financial reasons. This abortion clinic, the only one in the province, has offered safe and compassionate care since 1994. However, the province has continually refused to fund it, forcing the clinic to collect payment directly from patients in contravention of the federal Canada Health Act. The province does fund some abortions at two hospitals (in Moncton and Bathhurst), but together they can only handle about 40 per cent of the province's abortion caseload, which will not change if the government gets its way.
The province enforces two regulations, both of them blatantly illegal and unconstitutional. One prohibits public funding of any private clinic, and the other requires a woman to obtain written approval from two doctors who must certify that the abortion is "medically necessary" before she can get a funded abortion at a hospital.
In 1995, Health Canada required all provinces and territories to fully fund private clinics if they provided medically necessary procedures, and clarified that such clinics are included in the definition of "hospitals" under the Canada Health Act. All provinces with abortion clinics have since started funding them -- with the sole exception of New Brunswick. Further, its regulation requiring two doctors' approval replicates the same restriction that the Supreme Court of Canada tossed out as unconstitutional in 1988 -- a requirement that women get approval from a committee of three doctors. The Court said this caused delays or denied access entirely, thereby increasing risks to women's health and violating their bodily security rights.
The New Brunswick government knows that its regulations are illegal and that it would lose in court on the issue. That's why it used every delaying tactic in the book to obstruct Dr. Henry Morgentaler's lawsuit while he was alive. His suit to repeal the regulations was launched in 2003, but it took him six years just to win standing. The government had claimed that because Dr. Morgentaler wasn't a woman seeking an abortion, he didn't have the right to sue -- even though he owned the clinic and often paid personally for women's abortions. By 2009, Dr. Morgentaler had spent over a million dollars on the case and was too tired and broke to continue. The case has been dormant ever since and he died in May 2013.
This didn't stop the New Brunswick government from issuing a brief statement on the day of the clinic's closure announcement, claiming that, "As this matter is still before the courts, the department has no further comment." In response to this willful stupidity, the Morgentaler family promptly withdrew the inactive lawsuit, yet the government continues to use it as an excuse to do and say nothing, even though the suit was an indictment of their own actions.
The government's woefully inadequate statement also said: "Women will continue to have access to medically necessary abortions in the province with the approval of two physicians." Of course, the government knows full well that most New Brunswick women will be unable to access abortion services in the future because of the barriers and bottlenecks created by their regulation. But as Andre Picard puts it, the province wants to maintain the "petty, misogynistic, contemptuous-of-Charter rights status quo."
New Brunswick is embarking on a dangerous experiment because it is cutting off access to abortion to more than half the people who need it. When women (and transgender persons who can experience pregnancy) cannot access abortion services, they don't magically and happily have babies instead. They are either forced into unwanted childbearing with all its proven negative effects, or they travel for abortion care if they can afford it, or they find a way to do it themselves -- illegally and often unsafely. Prince Edward Island is proof of the latter. This means that New Brunswick literally holds women's lives in its hands -- and is deliberately choosing to jeopardize them.
Perhaps the government doesn't yet realize that the Morgentaler Clinic served as a crucial safety valve that minimized the harms of its discriminatory regulations. But once the clinic closes, the government will be faced with the very real prospect of women being injured or possibly dying from unsafe abortions. Will it accept responsibility when that happens? Or will its "pro-life" beliefs make it predictably indifferent?
We may already have the answer with Health Minister Flemming's statement that the province "has no plans to get involved." So here we have a serious health crisis that the province has single-handedly created; a crisis in which women will be discriminated against, harmed, and possibly killed; and the Health Minister's response is that he has no plans to get involved. Let that sink in for a moment.
Flemming's negligent stance may have something to do with the fact that he appears to be completely unqualified to be health minister. His biography on the N.B. government website reveals that he's also the Attorney-General for the province, and has a background as a business lawyer. His Attorney-General portfolio creates a direct conflict of interest with his health portfolio, on this particular issue at least. As Attorney-General, Flemming's duty is to defend the province's laws, but as health minister, his duty is to administer medicare and safeguard peoples' health. Because he's made a choice to defend anti-abortion laws at the expense of women's health, Flemming should immediately resign as health minister.
The N.B. government's position is harmful not just to women and transgender people, but to itself, other provinces, all Canadians, and to the rule of law and democracy itself:
- Harmful to itself because it gives a black eye to New Brunswick as part of Canada -- the sole province to deny clinic funding, and the sole province to still impose finger-wagging religious morality onto women's reproductive health care in the 21st century. The N.B. government has also misspent millions of taxpayers' money defending its illegal laws. And now that the Morgentaler Clinic will no longer be making things easy for the government, any failure to improve abortion access opens the door for a class-action lawsuit by those injured by the sudden lack of access caused by continued enforcement of the regulations.
- Harmful to other provinces because it will force women to access abortion elsewhere, exporting the burden to other provinces and even U.S. states. New Brunswick will become like Ireland, hypocritically pretending to be a "pro-life" province, while ignoring the droves of women forced to seek life-saving care outside its borders as if they are criminals. The burden will be particularly felt by P.E.I. women, since 10 per cent of the Morgentaler clinic's caseload consists of women from P.E.I. Many from P.E.I. have been going to Halifax as well, which will likely not be able to handle the sudden surge of additional patients from both P.E.I. and N.B.
- Harmful to all Canadians, because New Brunswick is the sole holdout to removing abortion from the federal "excluded services" list for purposes of reciprocal billing. The inappropriate inclusion of abortion on this list forces all Canadian women living out of province to pay out of pocket until they establish residency in their new province. This hurts students in particular. Consensus is needed between all provinces/territories to remove abortion from the excluded services list, but N.B. won't agree because it would be required to fund abortions out-of-province without its two-doctor approval process.
- Harmful to the rule of law and democracy, because the province has been openly flouting federal law and Supreme Court precedent for 20 years, thereby giving licence to other provinces to do the same without repercussion. It is a disgrace that the federal Conservative government has refused to enforce the Canada Health Act against N.B. since it was elected in 2006. In fact, ending the previous Liberal government's arbitration process with New Brunswick on this issue was one of the Conservative government's very first acts -- a harbinger of its subsequent abandonment of our universal health-care system.
The current level of pro-choice outrage and activism in New Brunswick is completely unprecedented. The anti-choice movement is quaking in its boots and praying like hell, while the government is desperately trying to pretend it's business as usual. But everything has changed. It's not just because of the clinic's announcement of its impending closure. The government's arrogant dismissal of women's health and lives has enraged an entire new generation of activists in New Brunswick, who are steadily gaining in strength and savvy. Come election time this fall, it may cost the government dearly.
Pro-Choix-NB-Pro-Choice is advocating for a new, publicly funded clinic that offers comprehensive women's health services including abortion, as well as repeal of N.B.'s regulations. To help them, please join their Facebook page or check ARCC's Take Action page, where you can also donate to the cause.
Joyce Arthur is the founder and Executive Director of Canada's national pro-choice group, theAbortion Rights Coalition of Canada (ARCC), which protects the legal right to abortion on request and works to improve access to quality abortion services.
Photo: Michael Soron/flickr