(Editor's Note: The article below was written in August 2014. On Jan 1, 2015, the NB government repealed Reg 84-20, and access is improving. However, another regulation still stands in the way: Section 2.01, Chapter M-7 of the Medical Services Payment Act, limits funded abortions to hospitals, even though this is against the Canada Health Act. See bottom of this page for more info.)

 

The New Brunswick government refuses to fund abortions performed at the Fredericton Morgentaler Clinic on the grounds that it violates Regulation 84-20 of their Medical Services Payment Act, which states that abortion is only eligible for payment by Medicare when:

 

“…performed by a specialist in the field of obstetrics and gynaecology in a hospital facility approved by the jurisdiction in which the hospital facility is located, and two medical practitioners certify in writing that the abortion was medically required.”

 

Four Ways Regulation 84-20 Violates the Canada Health Act

The NB Regulation leads to violations of all five principles of the Canada Health Act.

 

1. Health Canada considers clinics that provide medically necessary care to be the equivalent of hospitals under the Canada Health Act. In 1995, then-Health Minister Diane Marleau ordered all provinces and territories to begin funding such private clinics, which include abortion clinics. NB refused to comply. NB has no legal grounds to arbitrarily designate abortion clinics as “non-approved” facilities. This refusal violates both the comprehensiveness principle and the accessibility principle.

2. The universality principle of the Act states that “all insured residents are entitled to the same level of health care.” Because women in NB seeking an abortion are required to pay for the procedure, residents of NB are not covered equally for insured services. Also, the arbitrary restrictions for hospital abortions limits women’s access to health care and discriminates against pregnant women, who are singled out as a group and forced through unnecessary steps that are unprecedented for any other medical procedure.

3. It violates the public administration principle by forcing the Morgentaler Clinic to privately administer the costs of an essential medical service, when it should be a non-profit public body doing this.

4. Under Canada’s Reciprocal Billing Agreement between provinces, residents moving to another province are automatically covered under the Medicare of their previous province for the first three months of their residency. This rule applies to medically necessary services, but since NB uses its Regulation to exclude abortion from its list of medically necessary services, NB women who move to another province cannot access the funded procedure they are legally entitled to, which violates the portability principle. 

 

Further reading:

• Jan 1995 letter from then-federal Health Minister Diane Marleau, instructing provinces and territories to fund medically required procedures in private clinics.

• Oct 1995 follow-up statement from Marleau, warning provinces that have not yet complied that they will face penalties.

• Oct 1995 letter from Dr. Henry Morgentaler to NB's then-Premier Frank McKenna, urging him to repeal the payment regulation and warning that he will launch a lawsuit otherwise.

 

 

How 84-20 Violates the Charter of Rights and Freedoms

Canadian women have a constitutional right to access abortion in an equitable manner, as per the 1988 Supreme Court decision, R vs. Morgentaler. This ruling deemed access to abortion to be a legal right for women under Sections 2, 7, and 15 of the Charter of Rights and Freedoms. New Brunswick's treatment of abortion services violates women’s Charter rights in several major ways.

 

The province makes funded abortion difficult to access by arbitrarily limiting its performance to specialists (OB/GYNs) in hospitals. In fact, abortion is a common, simple, and safe medical procedure often performed by general practitioners in other provinces. Since there are many more GPs than OB/GYNs, the regulation unfairly and unlawfully limits access to this important service for women. 

 

No possible health consideration justifies the requirement that women obtain the approval of two doctors in writing. This arbitrary policy, which does not exist in other parts of Canada and does not apply to other medical procedures, is designed to place unnecessary obstacles in the path of women seeking abortions.

 

It also takes away women's decision-making power and gives it to doctors. As such, it is in direct violation of the Charter and the 1988 Morgentaler decision. The judges held that the abortion decision belongs to women under the Charter's "freedom of conscience" clause, and they threw out Canada’s old abortion law because it presented unfair and unequal obstacles for women seeking abortions.

 

Regulation 84-20 was added to the Medical Payment Services Act in 1989, in response to Dr. Henry Morgentaler's plans to open a clinic there, and to flout the Morgentaler decision. Since then, many challenges to the regulation have been initiated.

 

Another One to Repeal - Regulation 2.01

 

New Brunswick enforces a second restrictive regulation passed around the same time as 84-20, which denies public funding to private clinics providing medically required services. This is prohibited by Health Canada.

 

The Medical Services Payment Act, Section 2.01, Chapter M-7, states that

 

"Notwithstanding any other provision of this Act, the medical services plan shall not provide payment for: (b) entitled services furnished in a private hospital facility in the Province."

 

This regulation also prevented the Morgentaler Clinic from being funded, and now that the clinic is closed, it prevents any new clinic from opening in the future. but New Brunswick needs a dedicated clinic that provides comprehensive reproductive healthcare, including abortion, and all of it publicly funded. Clinics are generally also a more comfortable and supportive environment for women seeking abortions, and provide additional services such as counselling, so they have an important place in abortion provision.