Why Abortion Won't Be Defunded in Canada

By Joyce Arthur
Pro-Choice Press, Autumn/Winter 2003

The Canadian anti-choice movement has been trying for over a decade to have abortion defunded in Canada. Currently, all abortions in Canada are funded as a "medically required" service under the Canada Health Act, whether they are performed in hospitals or clinics (although four provinces are still flouting the law by refusing to fully fund abortions in clinics).

The anti-choice movement uses five main arguments against the funding of abortion.[1] Let's examine each of them in turn.

1. No Canadian court has ever specifically ruled that abortion must be funded by taxpayers.

The reasons abortions are funded have little to do with past court cases on abortion.

Under the old abortion law (1969 to 1988), "therapeutic abortions" were done in hospitals to protect the woman's "health," a term that was often interpreted loosely by individual doctors. So in a way, the continued funding of all abortions is a holdover from the days of therapeutic abortions. However, that doesn't mean abortion funding is not valid for other reasons today.

The Supreme Court's 1988 Morgentaler decision threw out the old abortion law because it obstructed access and treated women unequally, thereby violating women's bodily security, liberty, and freedom of conscience under the Charter of Rights and Freedoms. If it ever becomes necessary, a strong legal argument can be made that defunding abortion would have the same effect and therefore the same constitutional problems as the old abortion law.

Significantly, the Charter guarantees equality for women, and this clause has played a large role in several court decisions that have upheld abortion rights. Also, a look at what happened in Saskatchewan in 1991 is instructive from the standpoint of women's legal equality. The province held a referendum on abortion funding during the provincial election, and 63% voted to de-insure abortion services. The conservative government lost the election, however, and when the victorious NDP stepped in, they commissioned lawyers to review the referendum results and offer advice. The lawyers decided that defunding abortion would probably not survive a Charter challenge because it would discriminate on the basis of sex. That's because only women can get pregnant and only women need abortions. The Saskatchewan government never acted on the referendum.

2. Provincial governments have exclusive power to decide which services should be on the list of medically necessary services. Courts have even said abortion could simply be delisted by the provinces.

Just because a few judges express an opinion that abortion could be delisted by provinces doesn't mean it could happen. There are formidable obstacles to overcome.

Besides the fact that defunding abortion would probably violate the Charter equality rights of women, the anti-choice movement is simply wrong to assert that provincial governments have exclusive power to delist services. They don't. For one thing, governments must respect our constitutional rights. It's fair to assume that if a government tried to de-insure appendectomies, for example, such a move would not stand up in court, because it violates peoples' right to life and security of the person.

In reality, provincial governments never make delisting decisions alone. As cited by anti-choicers themselves (in Tax-funded abortions: The facts, Action Life News, February 2003), the head of the Senate Standing Committee on Social Affairs said in 2001 that: "the determination of what services meet the requirement of medical necessity is made in each province by the provincial government in conjunction with the medical profession." In other words, the government must consult with provincial chapters of the Canadian Medical Association and the College of Physicians and Surgeons. The lesson learned in Alberta was that these groups refuse to go along with the government when it tries to delist some or all abortions.

In 1995, the federal government ordered Alberta to start funding all medically necessary services that were being performed in private clinics. Because Alberta had a large number of private clinics offering hospital services, the federal government began to withhold transfer payments to the tune of over $5 million a year. In an effort to declare at least some abortions as not medically necessary, the province asked the Alberta Medical Association and the College of Physicians and Surgeons to define "medically required" as it related to abortion services. Both refused to do so, and the government decided to continue insuring all abortions at hospitals. It also began to fund private clinics, including the abortion clinics in Calgary and Edmonton. Since that time, Alberta's "Committee to End Tax-Funded Abortion" has made a few more attempts to be heard, but their words have fallen on deaf ears.

3. Abortions are not medically necessary since the vast majority are done for socio-economic reasons. Further, abortion is actually harmful to women's health.

The question of which abortions are medically necessary and which are not is impossible to answer. Who gets to "choose"? Medical groups aren't interested in trying to formally define any categories, because they believe such things should be left to the discretion of individual doctors. It's a matter of professional medical judgment, based on the patient's particular circumstances and needs.

Regardless, the doctors who actually perform abortions would be the first to attest that all abortions are medically necessary. Health, after all, is defined broadly in our society. It encompasses not just physical health, but mental and emotional health as well. All abortions would qualify under such criteria. Further, abortion is not just another medical treatment. Access to safe, legal abortion is a constitutional right for women, with courts noting that women cannot achieve full equality without it.

Anti-choicers often say that pregnancy is not a disease and that abortion is a lifestyle choice—therefore, it is obviously not medically necessary. However, the same arguments can be made for childbirth. There are no medical reasons for a woman to get pregnant and have a baby. She does so because she wants to. Having a baby can be called a lifestyle choice that's usually made for socio-economic reasons, too. And since "pregnancy is not a disease," anti-choicers must answer the question as to why they are only concerned about defunding abortion and not childbirth. They might protest that there are "two patients" in a pregnancy and that abortion harms at least one of them. But Canadian courts have already ruled decisively that fetuses are not legal persons with rights. Also, if the government were to de-insure abortion without also de-insuring childbirth, it would in effect be making the lifestyle choice for women. But it is neither ethical nor constitutional for the government to favour childbirth over abortion. Such a move would immediately bring us back to the 1988 Morgentaler decision and the issues of unequal access, arbitrary obstacles, and discrimination against women—or at least a certain category of women, those who choose abortion over childbirth. In fact, any de-insuring of reproductive health care services would not likely pass a Charter challenge (with the possible exception of fertility services).

Finally, anti-choice claims that abortion is harmful to women are spurious because they are based on flawed science, distortion and bias, use of selective data, and a political agenda. The evidence is overwhelming that legal abortion is extremely safe and that it has saved the lives of countless women from the horrors of illegal abortion. Further, abortion does not cause breast cancer, infertility, subsequent premature births, or other calamities, and few women suffer serious long-term psychological after-effects.

4. If abortion services were defunded, it would not discriminate against poor women. Most women who have abortions are not that poor, anyway. The U.S. experience shows that if women really want an abortion, they'll find the money, and that defunding abortion for poor women does not increase welfare rolls or the incidence of "back-alley" abortions.

By anti-choicers' own admission, only 80% of poor women who want an abortion in the U.S. actually get one. The poorest and most vulnerable are forced to carry to term. The 1976 Hyde Amendment that prohibited Medicaid funding for low-income women's abortions is a tragic and highly discriminatory law, and should never be held up as a model for Canada. Women's equality rights are enshrined in our constitution, unlike in the U.S. Plus, the values embodied in Canada's universal healthcare system are very different from the U.S.'s profit-driven system. In Canada, funded healthcare is a right, not a privilege.

The argument that most women who seek abortions are not poor anyway is a misunderstanding of what discrimination entails. The relative numbers of poor versus better-off women are immaterial. Even if only a very few women are too poor to afford abortions, it means that defunding the procedure would be discriminatory. Under the 1988 Morgentaler decision, all women—not just most—have a right to access abortion services in a fair and equitable manner. (Besides, the claim that most women seeking abortions are not low-income is probably false.)

We don't really know whether or not defunding of abortion leads to more women going on welfare or seeking out dangerous, illegal abortions. If we take the anti-choice claim at its face and agree there is no evidence to support those claims, we can probably say with equal certainty that there is little evidence to support the opposite conclusion, either. The direct effects of defunding abortion in the U.S. are extremely difficult to research and quantify, although there have been anecdotal reports of illegal abortions occurring. Regardless, defunding of abortion is a human rights issue. It discriminates against poor women and violates their right to privacy by forcing them to bear unwanted babies.

5. Opinion polls show that a majority of voters do not want to pay for abortion procedures.

If equitable access to legal, safe abortion is a constitutional right for women, and if provinces and medical groups are responsible for deciding which treatments will be funded as medically necessary, then the public has no business voting to defund abortion. Women's basic rights and freedoms must not be subjected to a vote by the electorate.

Further, if a majority of taxpayers really don't want to fund abortion, that more likely indicates a misunderstanding of the issue by the public, rather than an informed and reasonable perspective. The public has been subjected to relentless anti-choice propaganda for years. As a result, many misconceptions about abortion have made their way into the mainstream, such as the notion that women who have abortions are irresponsible and promiscuous. Such misconceptions contribute to the belief that abortion should not be funded, but a solid pro-choice educational campaign might be able to turn the tide in our favour.

(Thanks to Celia Posyniak of the Kensington Clinic in Calgary for some of the information and ideas in this article.)

Endnotes