Jan 20, 2005

The Winnipeg decision affects all of us

It’s been almost a month since Justice Jeffrey Oliphant, associate chief justice of the Manitoba Court of Queen’s Bench, decided that abortion was the most important medical service in Canada. That’s right. Abortion is a charter right and all abortions, whether done in a public hospital or private, for-profit abortion clinic, must be paid for by taxpayers. There isn’t another medical service that enjoys such status. In fact, private service is considered “unCanadian” and pretty much forbidden unless one opts completely out of the publicly funded system. Now, that applies to everything—cancer treatment, joint replacements, MRIs, etc.—but not to abortion.

How did this happen?

Two women, identified only as Jane Doe 1 and Jane Doe 2, brought a class action suit against the Manitoba government for failing to pay for their abortions at the then-Morgentaler Clinic. Jane Doe 1’s abortion was in 1994 and Jane 2’s in 2001. Both could have had a “free” (paid for by taxpayers) abortion at a local hospital but they were told they’d have to wait six to eight weeks in the case of Jane 1 and four to six weeks for Jane 2. Jane 1 decided waiting would be “stressful for her, both physically and mentally” and paid $375 for a quickie Morgentaler abortion. Jane 2, who was on social assistance, feared that waiting “would cause her severe emotional stress and increased physical risk”, and spoke to her caseworker who told her about the Morgentaler Clinic. Jane 2 paid a small amount and the government, through the social services department, picked up the rest of the tab for her.

The Janes argued in court, as summarized by Justice Oliphant in his decision, “that because women are the only persons who can access abortion services, any legislated restrictions on women’s ability to access abortion services uniquely affects women as opposed to the general population.” That, they said, “imposes an unfair burden on women by forcing them to pay for medical services to be received in a safe and timely fashion as distinct from the rest of the population.”

Do these two live in Canada? Where in this country, outside of prisons, do Canadians receive medical services in a safe and timely fashion without leaving the country?

So on what basis did Justice Oliphant render his decision? (You can read the entire decision at http://www.canlii.org/mb/cas/mbqb/2004/2004mbqb285.html.) Did he accept this nonsense?

In his written decision, he said, "In my view, legislation that forces women to have to stand in line in an overburdened, publicly funded health-care system and to have to wait for a therapeutic abortion, a procedure that probably must be performed in a timely manner, is a gross violation of the right of women to both liberty and security of the person."

Where to begin? Let’s start with “therapeutic” abortion. Justice Oliphant seems to assume that abortions are therapeutic. Always. He accepts the comments of former Chief Justice of the Supreme Court of Canada, Brian Dickson, in the 1988 Morgentaler case, that the psychological stress and health risks associated with a delayed abortion are an infringement of rights. There is no mention that an abortion, any abortion at any stage of pregnancy, results in a number of physical and psychological health risks to women. These have been amply documented in medical and scientific journals and compiled in the book “Women’s Health After Abortion” published in Canada by the deVeber Institute. That this issue was not raised in the case is unthinkable. Not only that, Justice Dickson’s comments are now 17 years old, outdated with respect to medical advances and knowledge and were, at the time, based purely on assertions by the lawyer for Henry Morgentaler, whose financial and legal interests were very much at stake in making these assertions.

Next, there is the question of abortion being defined as a medical service under the Canada Health Act (CHA). As most people know, the CHA is not clear on this point. It requires provinces to pay for “medically required” physician and hospital services, but does not define what those services are. Nor does it define “core” services. Hospital services are defined as “services [that] are medically necessary for the purpose of maintaining health, preventing disease or diagnosing or treating an injury, illness or disability.” Since pregnancy is not a disease, injury, illness or disability, how can it be medically necessary?

Even the Canadian Abortion Rights Action League acknowledged that abortions aren’t medically necessary when it argued before the federal finance committee in 2001 that most women have abortions “for socio-economic reasons.” So why is it even being considered in the context of health?

Justice Oliphant’s ruling is a Manitoba decision but it will be treated as a precedent for the entire country if it is not appealed by the provincial government. Even though all provinces except New Brunswick and PEI pay for private clinic abortions, there is no charter right to abortion or to tax-funded abortion. That is why it is essential that the Manitoba government appeal.

The decision will not be restricted to abortion either. Since abortion is not medically necessary, is a personal choice and is already available at hospitals, this decision means that anyone who wants any service provided by a doctor will be able to use this decision to demand taxpayer funding for it. All it takes is an argument that one will suffer “stress” if the desired treatment isn’t forthcoming and free.

This is the strongest case for an appeal. The Manitoba government will not want to be forced to pay for any service demanded nor will the other provinces. In fact, the Oliphant decision contradicts a November decision by the Supreme Court of Canada, which found that provinces have the authority to decide what constitutes an insured service in their jurisdiction.

Let’s hope ideology and the feminist rhetoric do not blind the NDP government in Manitoba. It should listen to the hundreds of women who have been damaged by abortion and appeal this ludicrous decision.