Abortion rights activists watching case before N.B. courts

As abortion rights activists wait to see if the U.S. Supreme Court will overturn the landmark Roe v. Wade decision, those in New Brunswick are also keeping an eye on another abortion issue before the courts. 

The Canadian Civil Liberties Association filed a lawsuit last year against the New Brunswick government over a regulation that restricts women's access to abortion.

According to the statement of claim, the regulation violates the Canada Health Act and the right to liberty, security, privacy and equality under the Canadian Charter of Rights and Freedoms.

Cara Zwibel, a lawyer with the association, said the case is in the discovery phase, but that's currently on hold while the court waits for the New Brunswick government to produce some documents and other information. 

Zwibel said a government official was asked for the information in January and was granted time to produce it. She said the government still hasn't done so. 

"So if we don't get the answers that we need from the government relatively soon, then we do have the option of bringing a motion to court to try to compel those answers and to get things moving," Zwibel said. "Because we do want to see the case move along in an expeditious way."

So far,  no dates have been set for the case to resume or for the lawsuit to be heard. 

Although the Canadian Civil Liberties Association is keeping a close eye on what's happening in the U.S., Zwibel said even if a leaked draft opinion remains the court's decision, it will have very little impact on abortions in Canada. 

The draft opinion from the U.S. court was leaked to the news outlet Politico. It shows the court is poised to overturn Roe v. Wade, which enshrined abortion rights into law in that country 49 years ago. 

If overturned, each state would be permitted to pass its own legislation on abortion. 

"That could result in 50 different laws," said Zwibel. "But in Canada, there would only be one … and there's no indication that there's any interest [by Canadian politicians] to open the debate around abortion."

No legal ripples in Canada

Kerri Froc, an associate law professor at the University of New Brunswick, said even if Roe v. Wade is overturned, it won't result in direct legal ramifications in Canada. 

"It doesn't have a big precedential value in Canada, but it's still quite concerning nevertheless." 

She said the bigger issue in Canada — "as we see in New Brunswick" — is access and funding for abortions. 

In New Brunswick, surgical abortions are covered by Medicare only if they're performed in a hospital. Abortion services, however, are only performed at three hospitals — one in Bathurst and two in Moncton. 

Those that have been performed at Clinic 554, a private clinic in Fredericton, have not been covered. The clinic did not respond to a request for an interview, and the building itself is being sold. 

According to the province's statement of defence, the government "denies that access to abortion services would be materially enhanced by extending funding to abortions provided elsewhere than in a hospital facility."

The statement says the health-care system would be "compromised" if funding was extended to private clinics. 

"Such funding would create a burden on the public system, because health care service providers would not be available to provide services within both systems at the same time. This is due to a shortage of nurses and other health care personnel in this province." 

According to figures provided by Horizon and Vitalité health networks, an average of 622 surgical abortions were performed each year in hospitals in New Brunswick over the last five years, at a cost of $863.29 each. 

Since July 2017, the province has also been covering the cost of the abortion pill Mifegymiso, at a cost of $335 each. Since 2018, the province has covered 2,611 prescriptions for Mifegymiso, according to Department of Health spokesperson Bruce Macfarlane.

Why only 3 hospitals?

When New Brunswick loosened restrictions around abortions in 2015, discussions were held about where the procedure would be performed. 

According to John McGarry, the Horizon Health president at the time, scarce resources and space were behind the decision to limit abortion services to three hospitals.  

At the time, McGarry said the government had nothing to do with determining where services would be offered.

"The only directions we had from government were to take on the service. There was no direction as to location or number of sites," he said after the decision was made public.

"It was up to us to decide one site, two sites, 10 sites, so we did explore the four regional hospitals."

McGarry said the Fredericton hospital was discounted because of a shortage of space. Horizon said it wanted to use the available space at the Saint John Regional Hospital to expand intensive care units, and the Miramichi Regional Hospital simply said it wasn't interested in providing abortions.

McGarry said financial considerations also were a factor. Officials determined it would cost between $800,000 and $1 million to develop each site, and consolidating the service at one hospital would save a minimum of $500,000 a year.