As Texas abortion battle rages, Liberals take aim at access issues — a move that’s left New Brunswick advocates confused

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This article was published 01/09/2021 (1212 days ago), so information in it may no longer be current.

When the Liberal Party of Canada released its platform on Wednesday, one paragraph might have seemed particularly pointed to New Brunswickers.

“A re-elected Liberal government will: Establish regulations under the Canada Health Act governing accessibility for sexual and reproductive health services so there is no question, that no matter where someone lives, that they have access to publicly available sexual and reproductive health services,” reads the Liberal platform.

“Failure on the part of a province to meet this standard would result in an automatic penalty applied against federal health transfers.”

The campaign promise comes as abortion access or lack thereof makes headlines in the U.S., which saw a Texas law severely restricting services go into effect.

On the surface, it seems the Liberal commitment was aimed directly at New Brunswick Premier Blaine Higgs.

Higgs’ Conservative government oversees the only province in the country that won’t cover the cost of abortions outside of hospitals. And that’s a problem because, of the 23 hospitals in New Brunswick, abortions are only performed in three — two of which are in Moncton, near the province’s eastern border, the third in Bathurst, in the province’s north.

A private clinic in Fredericton, Clinic 554, has been providing out-of-hospital procedures, but, starved of funding from the province, it has been winding down its services over the last several months and now a “For Lease” sign hangs on the building’s door.

That means for most of the province — especially those living in the south and west — access to abortion procedures is a long distance away, which can mean a drive of up to several hours with associated costs for travel and hotel stays for potential patients.

The aforementioned paragraph is an odd addition to the Liberal platform, says Kerri Froc, because the existing Canada Health Act already seems to cover the New Brunswick situation quite nicely.

Froc is an associate professor in the University of New Brunswick’s Faculty of Law. She’s also an adviser for the Canadian Civil Liberties Association in its ongoing constitutional challenge against the province of New Brunswick for its restrictions on providing abortions.

“I’m scratching my head a little bit because I’m wondering where their heads are at with this amendment,” she said of the Liberals’ proposal. “To be frank, it seems a little bit like a solution in search of a problem.”

“(It says,) ‘… so that there’s no question that no matter where someone lives, they have access to publicly available sexual and reproductive health services.’ I’m all in favour of that. But to say, ‘there is no question,’ that kind of implies that there’s a question now, which there isn’t.”

Advocates like Froc have long argued that abortions are not accessible enough in the Atlantic province, and the federal government seems to agree.

Indeed, the federal government’s interpretation of New Brunswick’s not funding Clinic 554 was concrete enough that in March of last year Health Minister Patty Hajdu deducted $140,216 from the province’s Canada Health Transfer payments equivalent to patient charges at Clinic 554 that were not covered by the provincial government.

While Hajdu announced some research money for Clinic 554 last week, the lack of a permanent source of funding for the clinic has forced them to cut back services. Part of the issue is that the federal government would be out of its jurisdiction if it were to fund an abortion clinic directly, since that falls into a provincial dominion.

But, although Froc agrees there’s a tightrope to walk there, she says there’s a precedent for federal funding that comes with strings attached. She points to the $10-a-day child-care funding being handed out by Ottawa to provincial governments in the months leading up to the election, which is essentially money given with the caveat that it must be spent in a certain way.

Higgs has defended his decision by maintaining that refusing to fund the clinic doesn’t violate the Canada Health Act; the Liberal’s platform plank appears to be an effort to spell out the issue unmistakably.

But Froc maintains there is no ambiguity now, and the government’s effort would be better spent either more heavily enforcing the Act, or by providing money tied to the funding of abortion services. And she feels the time for that action is long overdue.

“During the previous election, Trudeau made a very clear promise that he was going to fix the problem with abortion access in New Brunswick and specifically get the provincial government to fund Clinic 554,” she said.

But aside from the transfer fund claw back — $140,000 out of $860 million transferred to New Brunswick for 2020-2021 — she said, little has been done on that score.

“I don’t like the fact that this has been such a massive political football and that it’s serving as a wedge issue,” she said. “Women of Canada deserve better than this issue coming up every four or five years, and then everyone pays attention for a little while. This is a chronic, chronic problem … it’s time to start putting some minds to solving this problem.”

Joyce Arthur, executive director of the Abortion Rights Coalition of Canada (ARCC), would like to see some of the specifics of that Liberal platform proposal and how it differs from what’s currently in the Act. Trudeau did not provide further details when media asked about it at a press conference Wednesday.

“We’re always glad to see any party or politician step up and publicly defend and support abortion rights and sexual and reproductive health rights and promise to improve access,” said Arthur. “The fact that it’s coming in a campaign, well … you know, that’s politics.”

Politics or not, she said, if the Act amendment improves accessibility to sexual health services, then it would be a win-win situation.

“The one positive thing about this is that it’s in their platform, it’s written down. So, it’s an actual promise that they’ve made.”

What she would like to see nationwide, she said, is for the Act, however the Liberals decide to amend it, to have the effect of making sexual health services — abortion services in particular — more universally available and funded. So that if a doctor wanted to start a private abortion clinic in any province or territory, they could be assured of its funding.

But the question still circles back to this: Why is the Liberal party seeking to clarify something advocates say is already abundantly clear? Especially when it is the federal government that holds the purse strings and the power of interpreting the Act?

“Once the government decides to start withholding those health transfer payments, once they start to actually enforce the Canada Health Act against a province, they’re the sole arbiter of what the Canada Health Act means,” said Arthur.

“They determine how to interpret it. And so, if the (federal) government says that New Brunswick is violating the Act, then they are. Period, end of story.”

The Liberal platform commitment comes amid a raging debate in America over the recent move by Texas to heavily restrict abortion. A Liberal candidate in Ontario went so far online Wednesday as to seemingly tie the East Coast province to the U.S. state.

“This is a critical measure to uphold & strengthen women’s reproductive rights in Canada,” tweeted incumbent Milton candidate and former Olympic kayaker Adam van Koeverden. “Why now? Because of what we see happening in Texas & New Brunswick.”

Both Froc and Arthur laughed when they heard that tweet.

The Texas law, signed by Republican Gov. Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before most women know they’re pregnant. It’s part of a broader push by Republicans across the country to impose new restrictions on abortion.

“The situation in Texas is just horrifying and tragic. It’s just way beyond the pale. It’s light years away from the situation in New Brunswick,” said Arthur. “Texas is basically putting a near-total ban on abortion. At least 85 to 90 per cent of all abortions cannot happen in Texas anymore.”

The question, she said, is one of legality in Texas; in New Brunswick — in Canada — it’s a question of accessibility.

“We don’t have to fight against laws. We’re always just fighting to improve access,” she said. “Whereas in the States and in other countries, we’re having to fight for just the basic right to access abortion.

“So, the situation where basically abortion is illegal in Texas … it’s a very anti-women law that’s going to hurt families. And people are probably going to die.”

Canada doesn’t have anti-abortion laws and access to services is “pretty good, at least in many of the major cities,” she said.

“But we always have to stay vigilant. And if you start letting any anti-choice politician reduce access or change laws, then that’s a step in the wrong direction. And you can’t give the anti-choice movement an inch because they’ll take a mile.”

The Liberal party did not return calls for comment on the proposed amendment.

New Brunswick’s Department of Health also did not return requests for comment.

Steve McKinley is a Halifax-based reporter for the Star. Follow him on Twitter: @smckinley1