Abortion law Q & A

Kerry Campbell investigates the legalities of abortion in Canada and on Prince Edward Island.

A full-page ad in the Charlottetown Guardian on Saturday, Jan. 7 shines a legal light on the emotional debate over abortion. Paid for by the P.E.I. Right to Life Association, it seeks to clarify "a number of errors" alleged to have been in media reports regarding legal issues around abortion.

With the other side in the debate - the P.E.I. Reproductive Rights Organization - seeking its own legal opinion on the issue, I decided to do some of my own research, talk to some lawyers, and learn what I could. Here are some of my own answers to questions raised in the ad, with a few questions of my own thrown in as well.

Q. Is abortion legal in Canada?

The ad claims abortion is not so much legal, but rather decriminalized.

The 1988 Supreme Court of Canada decision in the case of Dr. Henry Morgentaler v. Her Majesty the Queen struck down section 251 of the Criminal Code, which made abortions illegal unless they were approved by an abortion committee. At the time the Supreme Court suggested legislators come up with a new law. That was attempted, most notably by the Mulroney government which had a new law passed in the House of Commons but defeated by a tied vote in the Senate. To this date there is no criminal law dealing with abortion to replace section 251. There are a number of provincial laws that deal with aspects of abortion, including funding.   To say abortion is not legal because it’s not dealt with in the Criminal Code could be compared to saying fixing a broken arm is not legal for the same reason: both are viewed as medical procedures, neither is mentioned in the Criminal Code. In fact with abortion there is a body of common law, including the Morgentaler decision, which provides some basis of law, although lawyers on either side have different ways of interpreting what the courts have said

Q. But didn’t the Supreme Court make abortion a ‘right’ for women?

The P.E.I. Right to Life Association claims there is nothing in the 1988 decision that makes abortion a right.

At the root of the decision was a finding that the law contravened the rights of women as laid out in the Charter of Rights and Freedoms. In particular, section seven, which guarantees the individual's right to "life, liberty and security of the person."

According to the opinion expressed by Chief Justice Brian Dickson and Justice Antonia Lamer, "Forcing a woman by threat of criminal sanction to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person."

Justice Bertha Wilson saw section 251 as also infringing upon a woman’s Charter right to liberty.

"The right to 'liberty' contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them. A woman’s decision to terminate her pregnancy falls within this class of protected decisions. It is one that will have profound psychological, economic and social consequences for her…. It is not just a medical decision; it is a profound social and ethical one as well."

The Guardian ad quotes part of the dissenting opinion offered by Justices William McIntyre and Gerard La Forest. They found "save for the provisions of the Criminal Code permitting abortion where the life or health of the woman is at risk, no right of abortion can be found in Canadian law, custom, or tradition and the Charter, including s. 7, does not create such a right."

That opinion is from the losing side of the Supreme Court's 5-2 decision.

Q. Does the fetus have any rights under Canadian law?

Under section 223 of the Criminal Code, the fetus is not considered a person, and thus does not have the accompanying rights of a person, until

it has completely proceeded, in a living state, from the body of its mother, whether or not

(a) it has breathed;

(b) it has an independent circulation; or

(c) the navel string is severed.

That same section of the code does offer some protection for the fetus, however. It says "a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being."

This law can be considered to prevent last-minute abortions. The Canadian Medical Association has its own guidelines for doctors who perform abortions. It says abortions can be performed up until the 20-week point, when it considers the fetus "viable:" potentially able to survive outside the womb.

Some clinics, including the Morgentaler Clinic in Fredericton, where dozens of Island women go every year, has an even earlier cut-off point, 16 to 18 weeks.

Q. Are provinces required to pay for abortions?

This is still a topic of legal debate, although the only provinces to restrict payment for abortions are P.E.I. and New Brunswick, which pay only for hospital abortions, not those performed in private clinics.

The Canada Health Act requires the provinces to pay for services that are "medically required," but doesn’t offer an explicit definition of what that means. Nor does it provide a list of medical services the term entails; that job is left to the provinces.

Groups seeking to limit access to abortions, including the P.E.I. Right to Life Association, say the term "medically required" limits the abortions provinces must pay for to those very rare cases where the mother’s life may be at risk.

"[The term 'medically required'] is not defined, and anything goes as a result of the failure to define it," said Gwen Landolt, a lawyer with the group REAL Women of Canada, which opposes abortion.

Landolt consulted with the P.E.I. Right to Life Association on its legal materials.

"So you have an interpretation, Mrs. Jones has an interpretation, the minister of health has an interpretation what’s medically necessary, I have an interpretation," said Landolt.

"Today in this modern technological world, you don’t require abortions for medical reasons. They are being performed for social, psychological reasons, [and] convenience."

Other lawyers argue the debate over what’s medically necessary is secondary to the rights guaranteed to women under the Charter.

Clayton Ruby is a well-known constitutional lawyer who worked on the first Morgentaler Supreme Court case in the 1970s. He says the position of the P.E.I. government of not providing abortion services on the Island opens the province to a potential Charter challenge, a court battle Ruby is confident P.E.I. would lose.

"P.E.I. is sufficiently isolated that those women [travelling off Island] are being denied access to safe medical care, and that’s what the constitution says governments may not do," he said.

"You can decide that you’re not going to make abortions a priority, but you’ve got to have something in place that really does give access to safe medical care. This province does not. Those who can afford to get over somewhere else, they can survive and those without money can’t. That’s not access."

Q. What does P.E.I. law have to say on abortion?

Health PEI says there is no law, policy or regulation currently in place to prevent abortions being performed on P.E.I., and that any qualified doctor on the Island could apply for operating room privileges to perform one. According to the current fee-for-service contract between the province and the PEI Medical Society, a doctor would be paid $151 for doing so.

One of the few mentions of abortion in P.E.I. legislation is in the regulations attached to the Health Services Payment Act. It defines a "basic health service" (and thus a service paid for by the province) as "services provided in respect of termination of pregnancy performed in a hospital when the condition of the patient is such that the service is determined by the Minister to be medically required."

This means the province only pays for abortions performed in hospitals, not those in private clinics.

This regulation was the subject of a court challenge by Morgentaler in the 1990s. He was initially successful in having the regulation thrown out. A 1994 decision from the P.E.I. Supreme Court found "there is no sustainable argument that eligibility for payment be made subject to an abortion being performed in a hospital. There is no apparent reason rationally related to the administration of the provincial health payment plan for limiting payment to abortions."

The province appealed. In 1996 the P.E.I. Court of Appeal ruled the Supreme Court was incorrect to conclude the regulations attached to the Health Payment Services Act were "inconsistent with and contradictory to" the act. The regulations were reinstated and are still in effect today.

Morgentaler said he would lobby Allan Rock, the federal health minister at the time, to withhold health transfer payments from P.E.I. until the province started paying for all abortions. Rock threatened to do just that, but never followed through. However, $372,000 was withheld from Nova Scotia for the same reason, until the province’s only private abortion clinic closed in 2003.

Morgentaler could have continued his case. He said at the time he would focus instead on legal battles in Nova Scotia and New Brunswick, in the hopes victories there would result in a change on P.E.I. The New Brunswick case is still in progress.