Lessons from Mor­gen­taler

The lack of abor­tion ac­cess in Nova Sco­tia un­jus­ti­fi­ably vi­o­lates women’s con­sti­tu­tional rights.

The Coast - - THE CITY - BY JODI LAZARE AND JEN­NIFER TAYLOR Read more opin­ions at at the­coast .ca

Re­cent head­lines have high­lighted that abor­tion ac­cess in Nova Sco­tia might be the worst in the coun­try. It’s been al­most 30 years since the Supreme Court of Canada held that bar­ri­ers to abor­tion ac­cess may vi­o­late the Char­ter of Rights and Free­doms, and yet in Nova Sco­tia it’s clear that sig­nif­i­cant bar­ri­ers re­main. In our view, the cur­rent sit­u­a­tion may un­jus­ti­fi­ably vi­o­late women’s con­sti­tu­tional rights.

The main bar­rier to ac­cess­ing sur­gi­cal abor­tion in Nova Sco­tia is the re­fer­ral re­quire­ment (which, to our knowl­edge, is based on pol­icy and prac­tice, not leg­is­la­tion or reg­u­la­tion). The Ter­mi­na­tion of Preg­nancy Unit at the QEII Hospi­tal in Hal­i­fax, which per­forms most abor­tions in this province, requires a re­fer­ral from a doc­tor be­fore it will per­form the pro­ce­dure.

No­tably, the TPU does not have its own ul­tra­sound ma­chine. This means that women may need at least two sep­a­rate med­i­cal ap­point­ments be­fore an abor­tion can be per­formed: One with a physi­cian for a re­fer­ral, and an­other for an ul­tra­sound lead­ing up to the pro­ce­dure.

As a re­sult, women must wait un­til they are least eight weeks preg­nant be­fore ob­tain­ing an abor­tion. Many are forced to con­tinue un­wanted preg­nan­cies longer than they oth­er­wise raises would, se­ri­ous per­pet­u­at­ingChar­ter con­cerns. their dis­tress. This

In 1988, the Supreme Court struck down the Crim­i­nal Code pro­vi­sions re­gard­ing ther­a­peu­tic abor­tion as con­trary to the Char­ter. In R v Mor­gen­taler, the Court ruled that re­quir­ing women to go through a se­ries of hoops to ac­cess abor­tion ser­vices was an un­jus­ti­fi­able violation of women’s Char­ter right to life, lib­erty and se­cu­rity of the per­son. The pro­hib­i­tive bar­ri­ers to ac­cess in­ter­fered with women’s bod­ily in­tegrity and con­sti­tuted state-im­posed psy­cho­log­i­cal stress.

Be­fore Mor­gen­taler, a woman seek­ing an abor­tion had to have her de­ci­sion ap­proved by a ther­a­peu­tic abor­tion com­mit­tee at an ac­cred­ited hospi­tal, tasked with de­ter­min­ing whether car­ry­ing her preg­nancy to term would en­dan­ger her health or life. The se­ri­ous de­lays in ac­cess­ing the com­mit­tee meant that the scheme was in­her­ently flawed. What’s more, many hos­pi­tals did not have a com­mit­tee, mak­ing ac­cess in those places es­sen­tially a fiction.

In the Mor­gen­taler de­ci­sion, chief jus­tice Dick­son found that the un­nec­es­sary de­lays, in­ad­e­quate ac­cess and un­fair stan­dards meant that the pro­ce­dure for ob­tain­ing an abor­tion was un­con­sti­tu­tional. Jus­tice Wil­son went fur­ther: Pro­ce­dure aside, as a mat­ter of con­science and in­di­vid­ual au­ton­omy, she em­pha­sized that all women should have the right to de­cide whether to carry a foe­tus to term. De­lay­ing or re­mov­ing that choice was un­con­sti­tu­tional.

As we learned last week, women in Nova Sco­tia who choose abor­tion con­tinue to face sim­i­lar ob­sta­cles. While the process is not quite as oner­ous—there are no com­mit­tees and women do need not to be in dan­ger to ob­tain the ser­vice—the ef­fect of the re­fer­ral hur­dle is the same as in 1988: Un­nec­es­sar­ily long de­lays caus­ing psy­cho­log­i­cal and of­ten phys­i­cal dis­tress.

Com­pound­ing the is­sue, Nova Sco­tia does not fund med­i­cal abor­tions. A med­i­cal abor­tion is a com­bi­na­tion of drugs, to­gether known as Mif­e­gymiso, which can ter­mi­nate a preg­nancy of up to 49 days. At least five other Cana­dian provinces have com­mit­ted to pro­vid­ing some cov­er­age for Mif­e­gymiso.

The province is look­ing into these bar­ri­ers, but ac­tion is re­quired now. The fol­low­ing steps would help: Re­mov­ing the re­fer­ral re­quire­ment; pro­vid­ing an ul­tra­sound ma­chine for the TPU and en­sur­ing pro­vin­cial cov­er­age for Mif­e­gymiso.

Un­wanted preg­nan­cies are a se­ri­ous bur­den on women’s phys­i­cal and men­tal health. Nova Sco­tia’s women have the right to timely and ac­ces­si­ble med­i­cal ser­vices and should not have to un­dergo in­creased suf­fer­ing at the gov­ern­ment’s hands. The Char­ter de­mands noth­ing less.

Jodi Lazare is an as­sis­tant pro­fes­sor at Dal­housie Univer­sity’s Schulich School of Law. Jen­nifer Taylor is a lawyer in pri­vate prac­tice in Hal­i­fax. The views ex­pressed here are their own.

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