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Abortion in Canada: Good legal principles, bad political faith

in Featured/Gadfly by

As the recent death of Henry Morgentaler reminds us, we live in a country of contradictions when it comes to women’s health rights.

Canada is unique in having no criminal law on abortion. Rather, abortion is regulated like any other medical procedure and treated as a private matter between a woman and her doctor. Indeed, it is designated “medically necessary” under the Canada Health Act, obliging provinces to fund the procedure.

From the legal perspective, then, Canada is a feminist paradise. Materially too, the situation is much better since 1988, when the Supreme Court of Canada declared in R v. Morgentaler that the Criminal Code of Canada provisions on abortion violated the Charter of Rights and Freedoms.

Those laws had required any woman who wanted an abortion to convince an accredited hospital’s therapeutic abortion committee (TAC) that the pregnancy would endanger her life or health. TACs were made up of three doctors, none of them allowed to perform the abortion.

The federal government knew very well that this system was rife with inequities because its own official investigation, led by Robin Badgley, documented the problems compellingly in 1977.

As the Canadian Medical Association (CMA) observed, these included the “shocking fact” that abortions were being delayed on average by 8 weeks and that this, along with restricted availability, compelled thousands to take the “expensive and sometimes hazardous alternative” of travelling outside the country.

The year before the Morgentaler decision and a full decade after Badgley, the Globe and Mail (30/01/87) reported that only one doctor in all of Newfoundland and Labrador performed abortions. With only five terminations offered each week, many women from this province flew to Montreal or Toronto and paid for the procedure.

How many others continued with an unwanted pregnancy?

It took another decade and two years of reduced federal-provincial health transfers before the province started covering clinic abortions for anyone with a valid MCP card. Before that, women would arrive at the St. John’s Morgentaler Clinic “with income tax cheques, with their student loans, with whatever money they could come up with.”

Significant as these improvements are, we haven’t earned a gold star yet.

Abortion services: An unfinished business

Only one clinic and one hospital offer abortions in Newfoundland and Labrador. Both are located in St. John’s. The Athena (formerly Morgentaler) Clinic, which provides around 800 of the thousand or so abortions performed annually in Newfoundland, estimates that roughly two-thirds of their clients live on the Avalon. The remainder travel from other parts of the province.

Such women can apply for financial assistance through the province’s Medical Transportation Assistance Program (MTAP). However, not all expenses are covered (there is a $400 deductible if you live on the Island, for example), and claims require documentation of the medical service provided. They also require a doctor’s referral, even though the Athena Clinic does not.

Only one clinic and one hospital offer abortions in Newfoundland and Labrador. Both are located in St. John’s.

Assuming they can organize the journey and time away from home, it doesn’t take much imagination to see that these conditions might deter some women from submitting MTAP claims. Likewise, some women might hesitate to seek follow-up medical care in their home communities.

Of course, anyone who needs a specialist appointment in a “regional” setting will tell you that many medical services are harder to access away from a city. But is abortion a “specialist service” in the usual sense of the term?

For one thing, any hospital obstetrics ward could provide first trimester abortions. The technique used here – Dilation and Curettage – is a standard medical procedure, performed for many reasons other than abortion. Abortion is also extremely common. Around a third of Canadian women have had one or more.

Yet, Canadian medical schools do a poor job of giving new doctors abortion training, even though students would like to learn more about it. A British Columbia study found that many doctors who offer abortions in non-urban hospitals also struggle with access to shared resources (operating room, support staff, etc.), as well as social and professional isolation.

Where there’s a (political) will, there’s a way

None of these problems are insurmountable however; in Quebec, government action ensured that abortion is available throughout the province.

So political will on the provincial level is one major factor. Ottawa should encourage it by using abortion’s “medically necessary” status to put the screws to recalcitrant provinces.

For its part, Canada should license Mifepristone without delay.

Also known as RU486 or the “abortion pill,” Mifepristone combined with misoprostol allows for medical abortions – abortions induced by drugs and without surgery or anaesthetic – up to 9 weeks gestation. Not all women want or can safely have a medical abortion. But many women find them more “natural” and private than surgery, akin to an early miscarriage at home.

Yet medical abortions are rare in Canada – and nonexistent in Newfoundland and Labrador – mainly because the only available option involves using methotrexate off-label (that is, for a non-approved purpose). From women’s perspective, RU486 is likely preferable, as Mifepristone works faster, is slightly more effective, and can be used later into the pregnancy than methotrexate.

In this province, RU486 could make early pregnancy termination locally accessible to many more women while saving public money.

Used widely since its approval in France in 1988, RU486 has a well-established record of effectiveness and safety. It is now legally available in 57 countries, including the United States and most of Europe. In 2005, the World Health Organization added it to the WHO Model List of Essential Medicines.

In this province, RU486 could make early pregnancy termination locally accessible to many more women while saving public money. In addition to family doctors, there is no medical reason that these drugs could not be administered by nurse practitioners, midwives and even via telemedicine, provided that backup medical care was available. (It would also be vital to ensure that government did not download costs onto women by requiring them to pay for the drugs themselves.)

Finally, in Newfoundland and Labrador, women must be at least 8 weeks pregnant before a surgical abortion is performed. In contrast, medical abortions can be conducted as soon as a pregnancy is verified.

The CMA holds that abortion should be “uniformly available to all women in Canada,” with “no delay”. This is because, while legal abortion is far safer than carrying a pregnancy to term, it is safest of all early in the pregnancy – a compelling reason to treat recent evidence that the need to travel can delay abortions as a matter of political urgency.

Withholding the moral property of women?

Why, then, is RU486 not licensed in Canada, when it so clearly could improve women’s health care? First, no one anticipates big profits from doing so. Second, the original patent holder for mifepristone responded to political harassment by refusing to seek approval except on the invitation of a government official. Finally, the Canadian government simply has not made it a priority.

In contrast, the French government ordered the drug back into production after its manufacturer caved to anti-abortionists, stating that RU486 was “the moral property of women, not just the property of the drug company.”

Let me end by noting that the rate of pregnancy for 15-19 year olds in Newfoundland and Labrador jumped by almost 36% between 2006 and 2010 – in marked contrast with Canadian trends. Meanwhile, the abortion rate for this group is lower than the national average, making the birthrate correspondingly higher. No doubt, many of these are happy pregnancies. However, there is a well-established link between teenage birth rates and limited socio-economic options. Moreover, according to Planned Parenthood, at least some teenagers would choose terminations if they were more readily accessible.

As always, the stakes are highest for the most vulnerable.

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