Lessons from Morgentaler

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

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.
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.

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 would, perpetuating their distress. This raises serious Charter concerns.

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.

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