A New Brunswick-based constitutional lawyer says the federal government could fund Clinic 554 directly and, in some respects, has an obligation to do so.
In 2019, Prime Minister Justin Trudeau promised to “ensure” that surgical abortion services provided at Clinic 554 in Fredericton were funded by the provincial government. That promise remains unfulfilled despite deputy prime minister Chrystia Freeland re-upping that commitment on July 23.
On Tuesday, federal health minister Patty Hajdu said that the federal government is doing all it can to force the province to fund out-of-hospital surgical abortions, but said that it isn’t able to fund the clinic directly. Instead, the federal government is giving $366,000 to a team of researchers at the University of New Brunswick to study barriers to abortion access in the province.
“The federal government cannot directly fund healthcare except in some special circumstances,” Hajdu said.
According to Kerri Froc, a constitutional lawyer and associate professor at the University of New Brunswick, that view is only partially correct. She agreed that the federal government can’t go around the province in providing direct healthcare funding, but said there’s nothing that stops it from funding the clinic through a grant.
“You can’t use the federal funding power to kind of do a workaround the division of powers,” Froc said.
But that doesn’t stop Ottawa from providing grants for operational or other expenses.
“They can spend their money any way they want. There’s very little constitutional restrictions on the funding power,” Froc said.
“So to say that there are jurisdictional issues that are preventing the federal government from doing more to either help ensure that there is the essential reproductive healthcare services being provided in New Brunswick, or that there’s no more pressure that they can put on (the province), from my position as a constitutional scholar, I’m saying that’s not the case.”
New Brunswick is the only province in Canada that doesn’t fund surgical abortions performed outside of hospitals. Clinic 554, which was the only facility performing surgical abortions outside of hospital, has all but closed. The clinic’s medical director Dr. Adrian Edgar, has shut down his family practice and provides reproductive healthcare like IUD services and abortions once per week.
The federal government has said the province’s unwillingness to fund surgical abortion procedures at the clinic through Medicare is a violation of the Canada Health Act and docked $140,216 from New Brunswick’s $860-million share of healthcare transfers this year as a penalty.
That number represents the amount of expenses incurred by Clinic 554 for performing abortions in 2017. But Froc said there’s nothing stopping the federal government from increasing that amount or tying transfer payments to conditions based on abortion access.
“They could withhold more money under the Canada Health Act. There’s nothing saying that needs to be tied to any sort of estimation on what people are out of pocket for abortion,” Froc said.
“It’s perfectly legitimate for the federal government to put strings attached to any transfers, any money that they give to the provincial government.”
Beyond that, there’s an argument that the federal government has the obligation to ensure that essential services, of which healthcare is one, are being provided properly in New Brunswick.
“It’s still a constitutional responsibility under Section 36 that they have to ensure that there’s essential health services provided on an equal basis to all Canadians,” Froc said.
“I mean, the provincial government also has that responsibility. They’ve fallen down, so who do we look to? We look to the federal government to enforce that.”
The province disagrees that it is not living up to its obligations under the Canada Health Act or the constitution. Premier Blaine Higgs and health minister Dorothy Shephard have repeatedly said that access in the province is adequate.
Where the dispute ultimately lies is whether that access is meaningful and whether there are direct or indirect barriers to accessing abortions. Right now, there are three hospitals in which people can get a surgical abortion in New Brunswick: one in Bathurst and two in Moncton. Medical abortions are also available through the prescription of Mifegymiso, which was introduced in 2017.
Horizon, the English language health authority, was asked to look at whether surgical abortion should be offered at more hospitals, but found there was “no need to establish another service.” That evaluation was based on a 20 per cent reduction in demand at the Moncton facility over the last several years since Mifegymiso was introduced and a lack of requests for the procedure at other facilities.
That patchwork of coverage, with surgical abortion limited to two regions of the province and Mifegymiso being theoretically available from any physician, is not necessarily meaningful access, according to a Nova Scotia-based reproductive healthcare provider.
“Often times, we see a situation in which something is available and what available means could be different, depending on the circumstances of the person needing the service,” said Robyn MacQuarrie, an OBGYN based in Bridgewater, N.S.
“I talk about meaningful availability and that means that the service is actually available in a way that is usable for the intended receiver of the service.”
Things like transportation and geography are particularly relevant to the current situation in New Brunswick, but MacQuarrie says offering options between surgical and medical abortions is important as well.
“It depends on a lot of different things which would be the most appropriate service,” MacQuarrie said.
When getting a medical abortion, easy access to further medical care is important in case the termination doesn’t go well. It is also a longer process than a surgical abortion and is only available up to nine weeks.
That lack of choice between medical or surgical abortion within the region is just part of a variety of factors that can add up to create barriers for those seeking to terminate a pregnancy.
“You can see just little barriers add up until they become insurmountable barriers for some people, ultimately resulting in them not receiving the service they attended to receive,” MacQuarrie said.
Which is why, according to Froc, the Canada Health Act is intended to explicitly require access that is meaningful.
“It’s fairly clear that the Canada Health Act is trying to get around technicalities and weasel words that a provincial government might use to say, ‘hey, there’s access. It might only be access on paper, but there’s access,'” she said.
“What meaningful means and what indirect barriers is talking about is you can’t provide access on paper but yet impose practical barriers on people from obtaining those services.”
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