Abortion rights are not guaranteed
As reproductive rights are under attack internationally, Canada must evaluate whether its own laws and policies are strong enough to protect women’s rights.
By Anita Dernovici & Colleen Keilty
Issues with Access. Lack of Protection. Lack of Resources. These are not typically the terms one would think of when describing Canada’s reproductive health services. Nevertheless, this is the reality for many women across Canada.
This year, International Women’s Day comes at a time when in many countries around the world, women are facing increasing suppression of rights, violence, imprisonment, and injustices. For example, in the United States, the constitutional right to abortion has been stripped away from women and girls, with their rights instead being determined by states.
As we mark the occasion this year, Canadians should turn their gaze inward and ask themselves: is our country truly guaranteeing that all women and girls can fully realize their rights?
Abortion is decriminalized in Canada, but it is not a constitutionally protected right. Since the landmark Supreme Court of Canada case R. v. Morgentaler, abortion has been decriminalized on the grounds that related provisions in the Criminal Code violated Section 7 of the Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. In the 5-2 decision, Chief Justice Brian Dickson wrote that forcing a woman to carry a pregnancy to term “is a profound interference with a woman's body and thus a violation of security of the person.” Abortion rights are safeguarded by legal precedent yet lack the support of specific protective legislations.
Since 1995, the federal government has deemed abortion services necessary. Under the Canada Health Act, the federal government is responsible for ensuring that Canadians have access to sexual and reproductive health (SRH) services. This suite of services, which includes abortion services, must meet five principles: public administration, comprehensiveness, universality, portability and accessibility.
Yet, access to abortion services remains neither universal, nor accessible across the healthcare system, as under Canada’s federalist system, these services are delivered at the discretion of provinces and territories.
In various provinces, notably Alberta, Saskatchewan, Manitoba and Ontario, abortion services are only available in urban areas, despite 35 to 40 per cent of the population residing in rural or remote regions. Access to abortion in Canada is difficult for people in rural and remote areas, racialized people, Indigenous women, newcomers, youth, women and girls living in low-income households, and other marginalized groups.
Although all provincial health insurance plans must cover the costs of all medically necessary procedures, New Brunswick’s provincial health insurance plan does not cover the costs of abortions that are performed outside of hospitals. While, throughout the country, despite it being a simple procedure, fewer than one in five Canadian hospitals provide abortion services, creating long wait times for patients.
Moreover, contraception continues to be financially inaccessible for many. Women, people with low incomes and young people, many of whom are also employed, often lack access to private coverage to pay for the costs, and therefore are more likely to use less-effective contraceptive methods. Eliminating this barrier is critical for women to realize their reproductive rights and is a core enabler of decisions on whether to bear children.
The current Liberal government has not introduced any legislation on the right to abortion, but has notably taken an explicitly pro-choice position throughout its tenure. In its 2021 platform, it self-identified as a “proudly feminist government” and insisted that “women’s rights should not be up for debate,” accusing the official opposition of aiming to “roll back abortion access.”
The party’s election promises included new regulations to ensure nation-wide access to sexual and reproductive health (SRH) services, pledges of funding to combat disinformation about abortion and towards SRH programs for young people. In their second term, the Trudeau government delivered on at least one of these commitments: the creation of the Sexual and Reproductive Health Fund, to which $81 million has been committed to date.
Recently, to target financial barriers to contraception, Minister of Health Hon. Mark Holland announced that the government would be introducing Bill C-64, An Act Respecting Pharmacare, that includes “universal, single-payer coverage for a range of contraception medications and devices in collaboration with provinces and territories.”
No Canadian government since the late Brian Mulroney’s Conservative government has attempted to legislate abortion rights. In 1989, Mulroney’s Conservatives tabled Bill C-34, which would have made abortion illegal except in cases where a physician deemed it necessary to protect a mother’s life or health – the bill was defeated in a rare tied vote. Since then, abortion rights watchdog Abortion Rights Coalition of Canada (ARCC) has tracked “at least 48 anti-choice private member bills or motions” seeking to restrict or eliminate access to abortion services, all of which have been defeated.
Given recent polls suggesting the Conservatives have an electoral advantage, the official opposition’s stance on abortion rights requires interrogation. Prior to assuming party leadership, Pierre Poilievre asserted that he was uninterested in re-opening the debate on abortion rights, and during a 2020 French-language leadership debate, declared that he was pro-choice.
That same year, in an interview with La Presse, PC leader Poilievre confirmed that while he would not himself look to introduce legislation, he would as Prime Minister allow private member bills on the issue and permit party members to “vote their conscience.” The party’s overall stance, per its 2023 policy declaration, is that it will not support any legislation to regulate abortion – but that may not reflect the views of its members. As of June 2023, the ARCC has designated 70% of sitting Conservative MPs as “anti-choice” based on their voting record and public statements.
Meanwhile, around the globe, reproductive rights movements have had success stories. The Marea Verde movement, composed of reproductive rights activists throughout Latin America, has contributed to the decriminalization of abortion in Argentina, Columbia and Mexico. This week, France made the historic move to constitutionally guarantee women’s right to abortion to prevent the risk of regression and protect reproductive freedoms.
Concurrently, however, reproductive rights have been under attack just south of the Canadian border: state-level restrictions of increasing severity have been introduced following the 2022 U.S. Supreme Court’s Dobbs decision, which overturned the legal precedent for abortion rights established by Roe v. Wade.
Discussions at the Canadian federal level regarding the benefits and risks of codifying the right to abortion have been reignited since the Dobbs decision. Advocacy groups have warned that doing so would make it vulnerable to legal challenges, as well as future restrictive amendments, or could even create new barriers at the provincial and territorial level.
“If we were to legislate that right to abortion, if we were to go beyond the constitutional, legal, strong foundation of that right in Canada,” remarked former Minister of Health Jean-Yves Duclos, “some jurists, some experts in Canada tell us that there could be a risk.” Perhaps the status quo is the safest option, for now.
Canadians must decide whether even the smallest risk of the erosion of abortion rights, akin to what we’ve seen in the U.S. and elsewhere, is a sacrifice they are willing to make.
While improving financial barriers to contraception is a step in the right direction, it is evident that federalism is once again falling short in helping women across the country. As provinces, territories, and the federal government lag in guaranteeing universal access to reproductive rights, women and individuals seeking reproductive care face daily obstacles. It is imperative that all levels of governments pause and contemplate their role in creating barriers and recognize the urgent need for immediate action.
Anita comes to Max Bell School of Public Policy with a background in privacy law, providing expert guidance in her previous work experience. As a pioneering female leader within the Federal Government, she is resolute in advancing equity and impartiality within institutional frameworks.
Colleen joins the Max Bell School of Public Policy with over a decade of experience in the public and non-profit sectors. She is particularly interested in how government, private sector, and civil society actors can mobilize to advance social and environmental justice.
