Province of No Choice
The Walrus|September/October 2021
Why doctors are still fighting to provide abortion care in New Brunswick
JESSICA LEEDER

ADRIAN EDGAR was just eight days old when he arrived in New Brunswick for the very first time — too late to claim being a tenth-generation New Brunswicker by birth but young enough that the Atlantic salt air worked its alchemy, embedding in him a deep sense of belonging. Of course, Edgar, now in his late thirties, can’t remember that first visit, but it launched a rhythm that shaped his life: summer vacations were spent floating on the waves off New Brunswick’s coast, and through the other seasons, there was the countdown to his return.

The year he was fifteen, Edgar spent time at the public library near his home, in London, Ontario, doing research. “This was before the internet. Long before Facebook or Twitter or Grindr . . . . If you wanted to know if you’d like kissing someone of the same gender, you couldn’t google it,” he said a couple of years ago in his speech as grand marshal of Fierté Fredericton Pride. “If we had a question like that, we went to the library and looked it up in physical books.” Sitting at a long wooden table, reading Leaves of Grass by Walt Whitman (thought to be among the first poets in North America to describe homosexual love), Edgar began to realize he was queer — and the implications of that. “The status quo then was terrifying. Gay marriage wasn’t legal. Too many gay men and trans women were dying of aids or random acts of violence or suicide,” Edgar continued. “The status quo then was a world that didn’t seem to want me in it. I had to choose to accept that or to resist.”

By the time Edgar began to study medicine at McMaster University, in 2007, he had decided firmly on the latter. As an undergraduate, he spent one formative term working at a medical clinic on the Thailand–Myanmar border; the clinic saw scores of people who had been assaulted and raped, but politically motivated restrictions prevented its doctors from providing them with abortions. They were allowed to treat patients who had attempted to terminate pregnancies themselves, a policy that brought a stream of horrors through the door.

“We just had so many women come in who had been so violated and had hurt themselves so violently just to try to take back some control of their body,” Edgar recalled in one of several telephone interviews earlier this year (pandemic restrictions prevented us from meeting in person). He spent a semester learning how to remove sticks, wires, and other objects from vaginas and uteruses — items that patients hoped would end their unwanted pregnancies. “You do that and then you never, as a physician, will ever consider a world in which barriers to abortion are anything but harmful.”

He had no idea, back then, that the next time he’d slam up against such barriers would be in the place he’d fallen in love with while growing up.

New Brunswick is the only province or territory in Canada that still has a regulation on the books designed to restrict access to abortion. Unlike most other jurisdictions, New Brunswick covers abortion services — which, medically speaking, are generally low-risk and straightforward — only if they are provided in hospitals, although there are just three in the province that routinely perform them. (In other provinces, though there are barriers to access, insured abortions can be obtained in a variety of outpatient settings, including doctors’ offices, community clinics, and hospitals.) No hospitals offer ready access to abortions in two of New Brunswick’s largest cities: Fredericton, the capital, and Saint John. Individuals seeking to terminate a pregnancy often endure uncomfortable waits, undertake lengthy travel, and pay associated expenses to have the procedure. None of the three hospitals will perform a routine second-trimester abortion, meaning those who cannot secure an appointment in the earliest weeks of their pregnancy or who do not learn they are pregnant until after fourteen weeks must leave the province for the procedure. All of these measures, taken together, have the effect of discouraging abortions in New Brunswick; those who seek them anyhow often have guilt, shame, and difficult experiences navigating barriers that were designed to stymie their choice.

Now a physician with expertise in abortion, Edgar has spent the last seven years battling this long-held status quo. In 2014, to help combat New Brunswick’s restrictions, Edgar and his wife, Valerya Edelman, moved to Fredericton to provide health care for underserviced patients and save the only clinic in the province (and one of the only two in Canada east of Quebec) that offers abortion services outside of hospital. Edgar is the only full-time physician on staff, and Edelman manages the clinic’s operations; patients are covered for all other health care services under provincial medicare as usual, but they must pay for abortion services out of pocket. Since Edelman and Edgar’s arrival, they have met with any provincial official they could, attempting to demonstrate that abortions performed outside of hospitals are safe, cost-effective, and — in a province whose hospital system is already under enormous strain — necessary. These efforts have shifted some attitudes, but not among those with the power to actually change policy.

It is easy to assume that accessing abortion care is no longer a problem in Canada. The procedure was partially decriminalized just over fifty years ago and fully decriminalized in 1988, and although the provinces and territories administer health care, federal legislation requires that they make medically necessary services available “without financial or other barriers.”

But, in New Brunswick, the decades-old battle for access is still being waged. Patients, advocates, and even local obstetricians have been lobbying the province to allow medicare coverage for clinic-based abortions and bring access in line with other provinces. The federal government has pressured provinces since 1995, citing the Canada Health Act, which requires coverage of medically necessary services — including abortions — regardless of where a physician performs them. For two consecutive years, federal health minister Patty Hajdu has tried to emphasize this obligation by holding back $140,000 in transfer payments to New Brunswick; the number represents a small fraction of the $860 million health transfer payment the province received in 2020 but is intended to symbolize the cost of the clinic-based abortions it refused to cover. (Hajdu did not agree to an interview for this story.) Blaine Higgs, the province’s Progressive Conservative premier, has publicly invited anyone who disagrees with New Brunswick’s clinic-funding ban to challenge the province in court. Hajdu, like other federal health ministers before her, has stopped short of pursuing such a course.

But, earlier this year, the Canadian Civil Liberties Association did take up that challenge: in June, the nonprofit human rights group, backed by Toronto- based law firm Torys LLP, was given a green light by the Court of Queen’s Bench of New Brunswick to proceed with a constitutional challenge of the province’s abortion policies. When arguments are presented, likely next year, the CCLAwill argue that the province is in violation of two sections of the Charter of Rights and Freedoms: Section 7, which guarantees rights to life, liberty, and security of the person; and Section 15, which guarantees equal rights and protection without discrimination. “Pregnancy discrimination is sex discrimination,” the CCLA’s statement of claim reads, noting that “the right to reproductive freedom is central to a person’s autonomy and dignity.”

When Edelman and Edgar decided to move to New Brunswick to fight for expanded abortion access, they understood that providing care would involve challenges. “If New Brunswick is the one province where the most barriers to abortion exist, it is the province I want to work in,” Edgar says. “That’s where, as a country and as a profession, medical people need to stand up and see the consequences of this slippery slope.” Edelman laughs wearily at the memory of how eager she was. “I was bright-eyed and bushy-tailed. People did warn me that New Brunswick feels like a small town, that people will talk about you, that you don’t have much anonymity in a small province like this,” she says. “They said it’s really difficult to make any change. And people are not supportive of abortion providers.”

Edgar’s faith in the system is now much more fragile, and his clinic is in tatters, but he is hopeful that the CCLA suit will finally force a change. “It is accepted here that abortion access will be less than in the rest of the country. People in health care have been working on the issue for decades, and the province has never changed its policy,” Edgar says. “I figured it would be an uphill battle.”

The steep grade of it was just not something he had a sense of.

ABORTION HAS always been a charged subject, though its controversial roots run particularly deep in New Brunswick. Canada was not yet formed as a country when, in 1810, New Brunswick passed legislation (modelled after English law) to criminalize the procedure. It took more than twenty-five years for neighbouring jurisdictions to follow suit, but Prince Edward Island, Newfoundland, and what was then Upper Canada all criminalized abortions in the mid-1800s. When Canada’s first criminal code was enacted, in 1892, terminating a pregnancy became illegal across the country.

While abortions in some limited situations were technically decriminalized across Canada in 1969, the circumstances under which they were allowed were still highly restrictive. Patients were required to submit requests to therapeutic abortion committees of three doctors, which were supposed to assess whether an abortion ought to be granted, but few hospitals ever established these committees: according to the Abortion Rights Coalition of Canada, in 1982, only about one-third of Canada’s hospitals had them. In New Brunswick, the government amended the province’s Medical Services Payment Act to ban clinic-based abortions: a physician could be found guilty of professional misconduct — and lose their medical licence — if they performed an abortion outside of a hospital.

In the mid-1980s, physician and pro-choice advocate Henry Morgentaler began expressing interest in providing abortions in New Brunswick. Morgentaler, a Toronto-based doctor who had previously practised and provided abortion services in Montreal, was on a cross-country tear to dismantle barriers to abortion by opening private clinics across several cities and provinces and challenging anti-abortion laws in the courts. New Brunswick’s legislation had been revised with Morgentaler in mind, in the hope of preventing him from operating in the province — ultimately, it turned out, to no avail. In a historic 1988 win for Morgentaler in the Supreme Court of Canada, the country’s abortion restrictions were declared unconstitutional: a violation of the right to life, liberty, and security of the person.

That decision, which made abortions legal at any stage of pregnancy, certainly did not open the floodgates to access. A few days later, British Columbia’s then-premier said abortions wouldn’t be funded, and the following year, New Brunswick and Nova Scotia enacted legislation to prevent doctors from being paid to perform abortions. (The BC decision was later found to be unconstitutional.) New Brunswick also drafted a new regulation that required anyone seeking an abortion to get the approval of two doctors and to have the procedure done by a specialist at an approved hospital. Its beloved premier at the time, Frank McKenna, vowed to spar with Morgentaler if the doctor dared to persevere. “If Mr. Morgentaler tries to open a clinic in the province of New Brunswick,” McKenna said, “he’s going to get the fight of his life.”

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