Abortion in Canada
In 1988, the Supreme Court of Canada struck down the 1969 law banning abortion because it prevented women from having equal access across the country and was unconstitutional. While overturning this ban, the court wrote that Parliament has a right to make a new abortion law, and subsequent Supreme Court cases have echoed this sentiment.
Following the Morgentaler decision, and after heated debate among the members of the ruling Progressive Conservatives party, Kim Campbell, the attorney general at the time, authored Bill C-43 to fill the legal vacuum created by the Supreme Court’s finding. This bill would have made it a criminal offence to induce an abortion unless it was done “by or under the direction of a medical practitioner who was of the opinion that, if the abortion were not induced, the health or life of the female person would likely be threatened.” The proposed law passed the House of Commons but was struck down in the Senate. No criminal laws restricting access to abortion have been put into place since then, effectively decriminalizing this medical procedure at any gestational stage.
During the landmark 1988 decision, the Supreme Court found that the legislation surrounding abortion in Canada violated Section 7 of the Canadian Charter of Rights and Freedoms by infringing upon an individual’s right to security of the person. In 1989, the Supreme Court of Canada further ruled that only the pregnant individual could make the choice of terminating a pregnancy and that no other individual had a legal say in their choice to either carry the pregnancy to completion or have an abortion.
These decisions and the lack of any new laws meant that abortion became part of health care, a medical procedure regulated by professional colleges and health care regulatory bodies and provided by a range of health care providers. Today, Canada remains an anomaly as a country that has no law, such as legal gestational limits, restricting abortion access.
While health care typically falls under provincial jurisdiction in Canada, there has been a role for the federal government. In 1995, Federal Health Minister Diane Marleau declared that abortion was a medically necessary procedure, as childbirth and pregnancy affects the health and lives of women. This was echoed by the fact that all provinces and territories have been funding abortions in hospitals, even before the 1988 Supreme Court decision. The Canada Health Act, the federal law that establishes public health care in Canada, only defines “medically necessary” services as those insured services provided in hospitals or by physicians. The 1995 directive to view abortion as medically necessary meant that if a province was funding a procedure in hospitals, that procedure also needed to be funded in private clinics.
For many Canadians, looking through this federal and provincial legal lens suggests that abortion is easily accessible for everyone in Canada. However, the reality is that abortion access is very uneven across the country, with many different communities facing significant barriers to access.
In 2020, it was still the case that only one in six hospitals offered abortion services in Canada. The majority of hospitals that provide abortion are found in major urban areas within 150 kilometres of the United States border, and health care providers can refuse to provide abortion care and services, including through conscientious objection, as Catholic hospitals do. People living in northern, rural, and remote areas must often travel considerable distances to access abortion care as well as other forms of health care. Even when a provider is located closer to home, gestational limits may require people to travel further to a clinic that can accommodate them. This can result in unexpected travel time, accommodation and travel costs, lost wages, childcare or eldercare costs. A lack of provincial infrastructure, such as necessary billing codes, and institutional inertia because of abortion stigma, can also restrict access to abortion.
Patients seeking care are expected to pay out of pocket for those costs and, in the majority of cases, there is no policy or process in place to make sure they know where to find a provider or where to get support or any kind of financial relief. In Canada, there are no programs offering abortion after 24 weeks of pregnancy, although some may make an exception if there is serious indication of fetal anomalies or a risk to the pregnant individual; in some provinces, abortion is only accessible up to the first 14 weeks; access is determined by health care providers and hospital administrations based on their capacity to provide care, abortion training, and other factors.
While upward of 95 per cent of abortions happen before 12 weeks, it is important to note that those who need abortion care after that are equally entitled to it and are often in complex situations such as constant emergencies due to poverty, homelessness, substance use problems, domestic violence or complex immigration situations. Those requiring access to abortion beyond 24 weeks have to travel to the United States, where a handful of clinics provide abortions beyond this gestational limit.
Accessing Abortion Care during Covid-19
While comprehensive data on the impact of Covid-19 on sexual and reproductive health (SRH) care is not yet available, testimonials shared by frontline sexual health organizations and data gathered through Action Canada for Sexual Health and Rights’ 24-hour Access Line indicates that Covid-19 has had an impact on people’s ability to access abortion care. Specifically, regional and provincial travel restrictions, stay-at-home orders, mandatory quarantine periods, and other Covid-19 measures have created significant barriers for people needing to travel out of their communities either to a major urban centre, across provincial lines or out of the country, and exacerbated long-standing inequities in abortion access.
In a geographically expansive country marked by disparate access to abortion care where travel across provinces to access abortion is commonplace, the additional barriers to travel have greatly restricted access. For many, travel has been rendered impossible if they are unable to fulfil mandatory quarantine periods, do not have a personal vehicle (while commercial flights remain limited), or cannot take time off work. For those who are able to travel, the coordination of travel typically adds a week or more of wait time to an already time-sensitive procedure.
Anecdotal evidence indicates that the Covid-19 pandemic has impacted decision-making around pregnancy and abortion in both directions, with some individuals choosing to terminate planned pregnancies due to changes in their economic situation (such as job loss, relationship loss, loss of housing) or due to the chronic stress caused by the pandemic. Others have chosen to carry out pregnancies due to being unable to access abortion care or because the pandemic has otherwise changed their decision-making capacity concerning their pregnancy. While the full picture is yet to emerge, pregnancy rates are likely to be impacted due to added difficulties in accessing contraception as well as due to changing sexual patterns. Sexual behaviours appear to be impacted in several directions, with some individuals having more frequent sex with live-in partners or experiencing greater levels of sexual violence in unsafe home environments, while others may be having less sex as a result of there being fewer opportunites to meet new partners, given stay-at-home orders and the closure of many possible meeting spaces.
Additionally, many sexual health clinics and public health units have had to redirect their resources to the pandemic response, resulting in closures and/or the removal of walk-in hours and reduction in operating hours. This has resulted in increased difficulties in accessing contraception and delays in having prescriptions for hormonal contraception renewed. Similarly, IUD insertion and removal has been delayed in many provinces and territories, as clinics have reduced their patient volume to implement new pandemic protocols. Anecdotally, there have also been reports of surgery slots being cancelled (as hospital capacity shifts to pandemic response), which impacts abortion care, and there are reports of PPE and essential items such as swabs used for STI tests being redirected towards the pandemic response. Routine STBBI testing has been rendered virtually inaccessible, as many sexual health clinics have closed or limited their hours, though some locations are making exceptions for individuals with symptoms or known exposure to an STBBI. The long-term potential impacts of this reduction of STI testing are quite worrisome, as many provinces and territories in Canada were already experiencing STBBIs outbreaks prior to the Covid-19 pandemic.
Access Inequality and Barriers to Abortion Care
Action Canada for Sexual Health and Rights operates the Access Line program, a 24/7 phone line offering support, information and referrals on sexual and reproductive health, and the Norma Scarborough Emergency Fund which offers financial assistance to those who face barriers to abortion care in Canada.
A significant number of calls to the Access Line are from people who are undocumented and/or in complex immigration situations that delay access to insurance. Through the thousands of calls received each year, Action Canada has collated stories and experiences from people facing significant access issues. For example, there are stories of people for whom taking time off work to get an abortion could jeopardize their employment, which their immigration status is tied to; people who, because they are unable to leave their employer's home or their workplace, are considering unsafe methods to abort an unwanted pregnancy; people who are in abusive situations and who are uable to leave their abusive relationship because their partner is their immigration sponsor or whose sponsor blocks their access to abrtoin care; and people who must pay for care out of pocket because they do not have provincial health coverage as an undocumented person.
The pandemic has disproportionately impacted individuals in complex immigration situations, and this experience is echoed in abortion access barriers. Over 2020, the Access Line received an influx of calls from people seeking abortion care who had outstayed their visas, were international students, or were otherwise unable to travel to their home country due to travel restrictions imposed because of Covid-19. While those without status were already subjected to numerous barriers to SRH care pre-Covid-19, the pandemic has amplified these barriers, with many hospitals and clinics closing their doors to people outside of their catchments. This restricted access for people who lived in areas with shorter gestation limits and who would previously have travelled to a nearby region that had a longer gestation limit, and, as a result, more people needed to travel to the United States to access care, an option that remained closed to those with precarious immigration status.
Anti-choice Actions during Covid-19
Across the world, anti-rights attacks -- particularly on marginalized communities such as 2SLGBTQI+ people, and racialized and Indigenous people -- have increased. While abortion rights campaigners have won significant gains in countries such as Argentina and South Korea, others have faced significant setbacks such as in Poland and the United States since the onset of the pandemic.
In Colorado, voters rejected an initiative to ban abortion care after 22 weeks of gestational age in November 2020. With few later-term abortion care services available in both Canada and the United States, and with the escalating risk to Roe v. Wade at the US Supreme Court, this prohibition would have had far-reaching consequences for people in Canada and the United States alike.
In Canada, long-standing anti-choice regulations continue to violate the human rights of people who can get pregnant in the province of New Brunswick. The 30-year-old Regulation 84-20 restricts funding for surgical abortions through the provincial health care system to hospital settings, which means that patients at the province’s only free-standing abortion clinic were required pay for abortion out of pocket. New Brunswick is the only province with such a provision, which violates Canada’s central health care legislation, the Canada Health Act. In 2020, the sole free-standing abortion clinic closed its doors, cutting off access to abortion care and gender-affirming care to thousands of patients in the province’s capital city. Additionally, with the remaining surgical abortion care providers located in only two other cities, individuals are being forced to travel hundreds of kilometres for basic health care during a time when travel is discouraged or outright restricted. A legal challenge has been launched to overturn the discriminatory regulation in the face of the lack of political will at the provincial level to overturn the policy.
Across Canada, at both federal and provincial levels of goverment, anti-choice policymakers have introduced legislation aimed at whittling away abortion rights in the past few years. Federally, a private member’s bill seeking to ban so-called “sex-selective abortion” was introduced in 2020, couched in human rights and feminist language but with no evidence to support the need for such a ban. Upwards of 90 per cent of abortions happen before the end of the first trimester and, so, well before people can find out the sex of the fetus. While sex-selective abortion in Canada may take place in some instances, it is incredibly rare and the reasons why people may make that choice are varied. In the cases of sex selective abortions happening because a family may favor one sex over the other, the solution is not a blanket ban on abortion but rather to challenge societal attitudes that favour giving birth to sons over daughters.
At the provincial level, the Government of Alberta has sought to introduce “conscience rights” bills to further erode abortion access and, in 2020, it proposed that abortion care should not be covered under the province’s Public Health Act, continuing the government’s hostile approach to sexual and reproductive health care. Largely, this resurgence of anti-rights activity occurred as actors felt emboldened by the rise of authoritarian governments, particularly in the United States, and as many conservative provincial governments gained majority status and faced limited opposition. Anti-choice actors in Canada maintain financial and political ties to like-minded groups in the United States, which grew stronger and gained a greater political foothold under the Trump administration and right-wing state governments.
Key Advocacy Demands
For much of 2020, many of the long-term consequences of COVID-19 for pregnancy and reproductive health care remained unknown, while the immediate sexual and reproductive health impacts were clear. There are increasing concerns around access to child care (in the event of ongoing school and work cancellations), increased wait times around accessing sexual and reproductive care as health care systems respond to increasing and new demands, difficulties in accessing SRH medications, including contraceptives, hormone therapy, and HIV treatment, and the increased health risks experienced by pregnant and immuno-compromised people.
Action Canada moved quickly to call for action from all levels of government to protect SRHR and demanded that provincial, territorial and federal governments in Canada step up to meet their human rights obligations by ensuring people can still access the essential sexual and reproductive healthcare they need. Through the treaty monitoring process at the United Nations, advocacy groups like Action Canada continue to push for Canada to meet its obligations to provide access to SRH services and to uphold sexual and reproductive rights for all people in Canada.
We called on the federal government to immediately publicly support sexual and reproductive health services as essential and extend the medication abortion limit to 12 weeks (or 84 days). As health care largely falls under provincial and territorial jurisdictions, we called on all subnational governments to:
- provide 100 per cent cost coverage for all contraceptive options;
- allow pharmacists to prescribe contraception;
- ensure timely access to abortion care; and
- create a telemedicine billing code for medication abortion in line with existing codes.
As the pandemic and its economic and social impacts have progressed, our key demands have evolved and we have worked in partnership with other movements to call for a feminist, human rights-based recovery that includes universal pharmacare coverage, including for contraception, universal childcare, the harmonization of immigration status for migrant workers, and investment in frontline feminist organizations that have been hardest hit. Additionally, as we witness growing misinformation in digital spaces, Action Canada has called on the federal government to counter the dangerous spread of false information on SRH services, such as “abortion pill reversal” websites.
The COVID-19 pandemic has provided cover for regressive, anti-choice governments around the world to roll-back access to reproductive health care and attack progress on human rights. While new leadership in the United States means we will likely see the repeal of the devastating Global Gag Rule in the coming year, Canada’s leadership on SRHR must continue to grow during this time, and feminist coalitions within the country have asked that the government commit a minimum of 1 per cent of its domestic COVID-19 response investment -- or at least $2 billion in new and additional funds -- to its international response to support Global South countries with their response.
All people in Canada have a human right to safe, legal, affordable, and accessible abortion care. While the federal government and many provincial governments declared abortion an essential service at the start of the pandemic, little has been done by governments to ensure that people in Canada continue to be able to access the SRH services, including abortion care, that they need. In the face of mounting anti-abortion tactics, it is critical that governments prioritize dismantling the barriers to SRH services and abortion care.
Chapter by Action Canada for Sexual Health and Rights