Access to abortion across Canada is hampered by a patchwork of provincial policies and lower court interpretations of women’s rights to health services related to abortion according to a new study published today.
One of the most important findings of the study is that the notion of “abortion on demand” in Canada is a myth for many women seeking services. The researchers from the University of Waterloo and Queen’s University say that the Canadian Charter of Rights and Freedoms obliges provincial legislatures to enable safe abortion access.
“While access to abortion has improved dramatically following its decriminalization, significant barriers persist,” said Emmett Macfarlane, a political science professor at the University of Waterloo who co-wrote the paper published in International Journal of Canadian Studies.
The study looked at both provincial regulation and legal rights challenges in courts across the country to assess the reality of abortion access since the Supreme Court’s 1988 decriminalization ruling.
Professor Macfarlane and co-author Professor Rachael Johnstone from Queen’s found that while many Canadians believe the Charter of Rights and Freedoms provides for equal abortion access, layers of complexity and barriers exist nationwide because abortion policy has fallen under the auspices of provincial healthcare systems and legislation.
The variation in access to abortion services between the provinces is stark, according to the researchers. There is also a significant urban-rural divide, where access outside of major city centers is severely limited. The researchers looked not only at hospital and clinic access in each province, but health regulations, gestational term limits, funding arrangements and other laws relating to ensuring safe access for women seeking services.
The study points out that provincial court-based claims for access under the Charter are often unsuccessful. “There is a tendency to view the right of access to abortion services as hinging on the question of whether or not it would constitute state interference,” said Professor Macfarlane, “but it is simply a failure of the state to ensure access. Efforts to improve access to abortion services nationwide requires provincial governments to act on their obligations under the Charter of Rights and Freedoms.”
An important distinction is made between negative rights which prevent governments from enacting laws or regulations that infringe rights, and positive rights, which would require governments to take some action to ensure rights are provided through services.
The study reveals that courts have largely approached the issue from a negative rights perspective and have been reluctant to impose positive obligations on the government.
