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A Brief Examination of the Provincial and Territorial Governments’ Roles in Determining Abortion Funding in Canada
Abortion was illegal in Canada until 1969, when the government decriminalized abortion in certain circumstances. In 1988, by means of the Supreme Court of Canada’s decision in R. v. Morgentaler, abortion was fully decriminalized. Currently, physicians in every province perform abortions, with the exception of Prince Edward Island (PEI) which has no abortion facilities. Women who obtain two doctor referrals can have abortions in another province and the procedure is paid for by the PEI government.
As a result of the Morgentaler decision, abortion access became unrestricted in Canada. An abortion may be sought at any time throughout the nine month pregnancy and for any reason. This is a reality that renders many Canadians uncomfortable and the majority express that some restrictions should be placed on access. A 2011 Environics poll discovered that when Canadians were provided with information about fetal development prior to being asked at what point the law should protect human life, 72% of respondents identified a point in time prior to birth.
A great number of Canadians also express that tax dollars should not pay for every abortion procedure. In a 2010 Angus Reid Public Opinion poll, only 44% of respondents felt that the “health care system should fund abortions whenever they are requested.” However, 39% felt that the system should only pay for abortions in cases of medical emergencies and 10% said that abortions should not be funded at all.
It may be asked then, under existing Canadian law, who is required to pay for abortions and who can decide whether or not the procedures should be funded? This discussion paper seeks to answer those questions.
Contrary to popular political mythology, provinces are not required to fund abortion procedures. Given the broad jurisprudential definition of “medically necessary services” and the constitutionally-granted jurisdiction of provinces over health care, provincial governments determine for themselves whether to fund abortion procedures and in which circumstances.
However, the federal Minister of Health may interpret the Canada Health Act (CHA) in a way that requires full provincial funding, partial provincial funding or no provincial funding of abortion procedures and choose to withhold a certain amount of federal funding from its transfer payments to provinces that refuse to comply with its interpretation and its policies. As such, the meaning of these policies may change with shifts in parliamentary leadership, which is a natural consequence of the democratic process in Canada.