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How the New Brunswick government's repeated refusal to fund Clinic 554 violates human rights

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Higgs on the campaign trail in New Brunswick in September 2020. Image: Blaine Higgs/Twitter

Since last October, abortion access in New Brunswick has received increased media attention with the announcement of the closure of Fredericton's Clinic 554: the sole private facility offering surgical abortion services in the province.

It quickly became a federal election issue, with the Liberal Party of Canada Leader Justin Trudeau and former Green Party of Canada leader Elizabeth May visiting Fredericton to voice their disagreement with the government of New Brunswick's refusal to fund abortions performed outside of a hospital.

Schedule 2 of Regulation 84-20 under the Medical Services Payment Act stipulates which medical services are not considered "entitled services," meaning that services outside of this definition are not covered under the provincial health-care system. These regulations provide that abortion is only covered when it occurs in a hospital setting (in practice, this denies funding for surgical abortion only, as the province fully covers the abortion pill under a different framework).

Compounding the lack of funding under Regulation 84-20 is the fact that surgical abortions are only available at three hospitals in the province: the Moncton Hospital and Dr. Georges-L.-Dumont University Hospital Centre in Moncton and the Chaleur Regional Hospital in Bathurst.

Repealing Regulation 84-20 became a 2020 provincial election issue. The Liberal Party of New Brunswick, the Green Party of New Brunswick, and the New Brunswick New Democratic Party made election promises to improve access to abortion. In contrast, Blaine Higgs, the incumbent premier and leader of the Progressive Conservative Party of New Brunswick, believes that abortion access is not an issue in the province, and that private clinics are not covered under the Canada Health Act. When asked about his position on the issue, leader of the People's Alliance, Kris Austin, said he would not change the status quo.

The government of New Brunswick's refusal to fund out-of-hospital abortions is a violation of the Canada Health Act, the governing piece of legislation that provides for federal transfers to the provinces and territories for providing public health care. If a provincial government is believed to have violated the act, the federal government can withhold federal health transfers, which the federal government did in March 2020 when it withheld $140,216 in transfer payments to New Brunswick.

Yet, the money was ultimately reimbursed due to the pressure on the health-care system caused by the global COVID-19 pandemic.

What has been missing from this discourse is that repeated refusal among successive provincial governments to fund Clinic 554 is a violation of international human rights law. The right to health, including the right to sexual and reproductive health, is encapsulated under article 12(1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Access to abortion is included in this right. Canada, which under article 29 of the Vienna Convention on the Law of Treaties means the federal, provincial, and territorial governments, acceded to the ICESCR in 1976.

The government of New Brunswick's failure to uphold the Canada Health Act and refusal to repeal Regulation 84-20 violates the right to health as it is a failure to enact and enforce relevant laws. Failure to provide access to sexual and reproductive health services has been recognized as a violation of article 12 by the Committee on Economic, Social, and Cultural Rights (the committee), which oversees implementation and compliance of the ICESCR.

By refusing to repeal Regulation 84-20 -- which only requires lieutenant-governor in council approval -- and only offering abortion services in two cities, the government of New Brunswick is failing to take steps towards the progressive realization of the right to sexual and reproductive health.

In fact, under the Brian Gallant government (2014-2018), the government amended Regulation 84-20 to allow individuals seeking an abortion to do so without receiving approval from two doctors who determined the abortion was "medically necessary." This demonstrates the simplicity of amending regulations and how refusing to amend the law to fund abortion performed outside of a hospital is a violation of the right to sexual and reproductive health by omission.

The lack of funding for private facilities doing abortions demonstrates how accessibility, including physical and geographical accessibility, is a critical component of the right to sexual and reproductive health. As articulated by the committee, "health facilities, goods, information and services related to sexual and reproductive health care must be available within safe physical and geographical reach for all."

Under the current framework, abortions are only offered in hospitals in two cities in New Brunswick: Moncton and Bathurst. This leaves individuals wanting an abortion who do not live in Bathurst or Moncton no choice but to travel. Travel can further marginalize lower-income individuals who may not have access to a vehicle in an area with limited intercity public transportation. In practice, this creates an inequality of service, as women who are financially stable and can take time off work to fund the travel are able to more easily access an abortion.

Under article 12(1) of the ICESCR, health care must also be economically accessible. The committee has expressed that pricing health-care services must be based on the principle of equity, meaning that when one service is provided publicly or privately, it must be affordable for all. Surgical abortions at Clinic 554 cost between $700-$850. Having abortions covered in hospitals but not at this private doctor's practice does not uphold the equity principle and creates inequality between individuals who live in the Bathurst and Moncton areas and those who can afford to travel there.

Even Horizon Health Network's board of directors (the regional health authority that administrates public health services for the Anglophone sector), passed a motion in October 2019 to ask the government to consider funding abortions outside of hospitals. This demonstrates that health-care professionals recognize abortion access as a problem and are calling on the government to do more.

Access to abortion as an aspect of the right to sexual and reproductive health highlights how human rights are interdependent, indivisible and interrelated. Access to abortion is not only part of the right to health but also relates to the rights to life, liberty and security of the person, self-determination, economic empowerment, freedom from torture and other cruel, inhuman or degrading treatment, privacy and respect for family life, and non-discrimination and equality. Specifically, as noted by the committee, "the right of women to sexual and reproductive health is indispensable to their autonomy and their right to make meaningful decisions about their lives and health."

I urge the re-elected Premier Higgs, the minister of health, and members of the legislative assembly in New Brunswick, regardless of party identification, to uphold Canada's and subsequently New Brunswick's obligations under international human rights law by providing accessible, adequate and affordable abortion access for all.

Emily Williams is a graduate of the St. Thomas University human rights department and will be pursuing her LLM in international human rights Llaw at the National University of Ireland, Galway next fall. Her research interests include the domestic implementation of international human rights law, corporate social responsibility and sexual and reproductive rights. She enjoys brisk walks around the neighbourhood, young adult fiction and a good cup of tea. 

Image: Blaine Higgs/Twitter

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