1. Supreme Court 1988 Morgentaler Decision
In a form letter then Premier of Ontario Dalton McGuinty sent to Ontarians who complained about public funding of abortion in that province, Mr. McGuinty said:
“You may be aware that, in 1988, the Supreme Court of Canada addressed the constitutional validity of abortion. The court ruled that a woman in our country has the legal right to a timely, accessible abortion as an insured service. In compliance with the Supreme Court decision, abortion remains a publicly funded procedure in Ontario.” 1
As explained here, the Supreme Court did not rule that Canadian women have the “legal right to a timely, accessible abortion.” And the Supreme Court did not address the funding issue in the 1988 Morgentaler decision. If a provincial Premier, who is a lawyer, misunderstands the law with respect to abortion, it is easy to see why so many Canadians are confused about abortion law in Canada, generally, and the funding of abortion, specifically.
2. Canada Health Act
Some commentators 2 who support full public funding of abortion have argued that the Canada Health Act (CHA) requires provincial governments to pay for all abortions. But that is an incorrect interpretation of the Canada Health Act.
Under the “comprehensiveness” criterion of the CHA,3 provinces are required to pay for “medically necessary” services through their provincial health care insurance plans, but the CHA does not specify what those services are and leaves it up to the provinces to decide. 4 If a province does not designate a procedure as being “medically necessary,” then that province is under no obligation to fund it through its health care insurance plan.
Why were abortion clinics in some provinces found to be non-compliant with the Canada Health Act?
The mistaken belief that abortions performed in private clinics must be funded by a province’s health care plan possibly stems from a misunderstanding as to why some provinces (for example, Nova Scotia up until 2003 and Newfoundland and Labrador prior to 1998 5) were found to be in violation of the CHA and penalized as a result.
Why were Nova Scotia and NFLD found to be in violation of the Canada Health Act? Abortion clinics in those provinces were providing an “insured service” under the province’s health care insurance plan in that the physicians’ fees were covered, but the clinics were charging patients a “facility fee.” As then Federal Health Minister Diane Marleau explained in a letter to provincial and territorial Health Ministers in 1995, charging a “facility fee” for an insured service (i.e. a service that the province had deemed “medically necessary”) amounted to charging patients a “user charge” and this, she said, “constituted a financial barrier to access” and as a result was a violation of the user charge provision of the Act (section 19.). 6
Marleau said: “In the context of contemporary health care delivery, an interpretation which permits facility fees for medically necessary services so long as the provincial health insurance plan covers physician fees runs counter to the spirit and intent of the Act.”
In other words, those abortion clinics that were receiving public funding for physicians’ fees, were charging patients for facility fees. That was the problem. Since NS and NFLD had designated abortion as an “insured service,” the abortion clinics should not have been charging patients a facility fee. If the provinces had decided to exclude abortion from their health insurance plans (meaning neither physicians fees nor facility fees would be covered), then the provinces would not have been in violation of the Canada Health Act and would not have been penalized.
In fact, that is how New Brunswick, which has recently received much criticism in the media, has decided to handle abortion. Under Regulation 84-20 of the Medical Services Payment Act, New Brunswick has deemed abortion not to be an “entitled” service “unless the abortion is performed by a specialist in the field of obstetrics and gynaecology in a hospital facility approved by the jurisdiction in which the hospital facility is located and two medical practitioners certify in writing that the abortion was medically required;”
As stated earlier, the CHA does not specify what services a province must deem “medically necessary” (and thus must cover under the province’s health insurance plan); this decision is left to each province to make. While supporters of full public funding for all abortions may not approve of New Brunswick’s policy, that policy is not in violation of the Canada Health Act.
Like New Brunswick, Prince Edward Island also restricts the funding of abortion to those that the province deems “medically necessary.” PEI’s policy was upheld by PEI’s Supreme Court, Appeal Division, in PEI (Minister of Health and Social Services) v Morgentaler, 1996. As noted in a Library of Parliament report:
Although this means that health care coverage for abortions in Prince Edward Island is more restrictive than in most provinces, it is consistent with previous cases. A province can limit coverage for abortions by regulation, provided there is authority in the governing Act to make such a regulation. If the governing legislation clearly conveys such authority, as did the Prince Edward Island Health Services Act, then regulatory restrictions on coverage will be valid.” 7 (emphasis added.)
For More Information:
For further information and a detailed description of each of the Canada Health Act requirements (the five criteria, two conditions, and two provisions), see the Library of Parliament report, Canada Health Act: Overview and Options” (updated in 2005.)
For details on how the federal government calculates the health transfer payments to the provinces, see the Library of Parliament report, “The Canada Health Transfer: Changes to Provincial Allocations.”
The legislation that governs the amount of the Canada Health Transfer: see Section 24 of the Federal-Provincial Fiscal Arrangements Act
- See “Dear Mr. McGuinty, it’s time to defund abortion in Ontario,” run-with-life.blogspot.ca. ↩
- Joyce Arthur, “Position Paper #2: Abortion Clinics Must be Fully Funded under the Canada Health Act” June 2005; Cynthia McQueen, “Aborting Equal Access Rights,” NOW Toronto, April 24-May 1, 2014 ; Ruth Farquhar, “Abortion clinic closing sad day for women,” Sudbury Star, April 21, 2014; Niki Ashton, “New Brunswick Clinic closure: Time to act is now,” rabble.ca, April 11, 2014. ↩
- In order to comply with the Canada Health Act, a province must satisfy five criteria (public administration, comprehensiveness, universality, portability, and accessibility), two conditions relating to reporting of information (section 13), and two provisions relating to extra billing and user charges (sections 18 and 19). Failure of a province to comply with any of the five criteria, the two conditions, or the two provisions of the CHA means that the federal government may penalize that province by withholding or reducing health transfer payments to that province. (See sections 15, 16, and 20 of the Canada Health Act ). ↩
- In a policy interpretation letter sent to provincial and territorial health ministers, Jake Epp, then Federal Minister of Health and Welfare, wrote: “The range of insured services encompasses medically necessary hospital care, physician services and surgical-dental services which require a hospital for their proper performance. …As regards physician services, the range of insured services generally encompasses medically required services rendered by licensed medical practitioners as well as surgical-dental procedures that require a hospital for proper performance. …Within these broad parameters, provinces, along with medical professionals, have the prerogative and responsibility for interpreting what physician services are medically necessary.” (Emphasis added.) (See Annex B: Policy Interpretation Letters in: “Canada Health Act – Annual Report 2012-2013,” p. 165) ↩
- Canada Health Act – Annual Report 2003-2004, p. 14 ↩
- Annex B: Policy Interpretation Letters in: Canada Health Act – Annual Report 2012-2013, p. 168 ↩
- Abortion: Constitutional and Legal Developments, prepared by Mollie Dunsmuir, Law and Government Division, Library of Parliament, 1998 ↩