Barriers to abortion in Canada make it an unlikely haven for Americans

Article content

TORONTO — Winnipeg’s Women’s Health Clinic is stretched. The facility is one of a handful of abortion clinics in Manitoba, a Canadian province of 1.3 million. It fields about 100 inquiries each week and says it’s providing as many as 30 per cent more abortions than it receives government funding for.

Even before the U.S. Supreme Court struck down Roe v. Wade, the nearly 50-year-old precedent protecting abortion rights across the United States, some of those inquiries about abortion were from Americans. Now the clinic — 70 miles from the border with North Dakota, where a trigger ban goes into effect this month — is watching for more.

“It’s too soon to say” whether inquiries from Americans will increase and by how much, said Blandine Tona, the clinic’s director of programs. But even a small number could tax the clinic, “so one of the things we have been doing is to organize, to prepare,” including by considering whether to offer abortions on more days each week.

Prime Minister Justin Trudeau and other Canadian leaders have condemned the U.S. Supreme Court’s ruling; his government has said it won’t turn away Americans who can’t get abortions at home. But with long distances between many clinics, providers stretched thin and barriers to cross-border travel, that might not be much of a solution.

Canada decriminalized abortion in 1988, and abortion rights draw broad political support here. But even as access has improved over the decades, it remains limited outside of major metropolitan centres and dependent on one’s ability to travel.

“We’ve supported people where the closest abortion provider is multiple days driving distance from them,” said Jessa Millar, who manages the hotline for Action Canada for Sexual Health and Rights.

Some Women’s Health Clinic patients travel to Winnipeg from Kenora, Ontario, about 130 miles away. TK Pritchard, executive director of the Shore Centre, which provides medication abortions in Kitchener, a city in southwestern Ontario, said it has clients from northern Ontario. It’s booking appointments three to four weeks out.

The center has received calls from a small number of people in Michigan since the overturning of Roe who are curious about abortion access in Canada, Pritchard said, but it’s “not hearing from people who are actually looking to book appointments.”

“One of the challenges that we have is that … it’s really hard trying to keep up with the demand that already exists,” Pritchard said.

When abortion pills became commercially available here in 2017, there was optimism that they would help improve access, particularly in remote and rural areas. But advocates say it’s still patchy.

“Most family physicians will not prescribe it, and they’ll just refer out to an abortion clinic,” said Mohini Datta-Ray, executive director of Planned Parenthood Toronto.

Jill Doctoroff, executive director of the National Abortion Federation Canada, said about 600 people registered for its training on prescribing the abortion pill since it launched in April 2021. Last weekend, after the U.S. Supreme Court decision, 70 people registered.

“What that shows is that one of the impacts of the decision is that people are recognizing that there are access issues in their own country and that they wanted to be able to do something,” she said.

Several states that border Canada have abortion bans in place or soon to be imposed. In other border states, such as Michigan and Montana, the status of abortion rights is uncertain.

Even if access in Canada were improved, advocacy groups said, there are other barriers – including the need for a passport and the cost of the procedure, which could be as much as US$600 – that would likely dissuade Americans from crossing the border and make them more likely to travel to other U.S. states.

Those costs “would put it out of reach for a lot of Americans,” said Joyce Arthur, executive director of the Abortion Rights Coalition of Canada. “It’s still early days, and we don’t know how it’s going to play out.”

There were more than 74,000 abortions in Canada in 2020, according to the Canadian Institute for Health Information. Most abortions in the country are performed during the first trimester of pregnancy.

Each province and territory has different gestational limits for medication and surgical abortions, and rules governing whether and when parental consent is needed.

In Prince Edward Island, where government policy kept the island abortion-free for more than three decades until 2017, surgical abortions aren’t provided after about 12 weeks. Islanders are often referred to other Atlantic provinces, including neighbouring New Brunswick, where the procedure is covered only if performed in one of three hospitals.

Abortion after 24 weeks is limited in Canada, sending a small number of people to the United States each year – cross-border travel that advocates worry could be jeopardized by the court ruling.

Analysts and advocates are watching other potential cross-border ripples, particularly as some federal and state lawmakers indicate intentions to block women from obtaining abortions in other states, to penalize out-of-state medical practitioners or to halt the flow of abortion pills by making their shipment by mail illegal.

What if those prohibitions extend to other countries, or if people who are persecuted for obtaining or providing abortions in the United States seek refuge in Canada?

A key test under Canadian extradition law is “double criminality” – whether the conduct for which someone is wanted is also illegal in Canada. Since neither obtaining an abortion nor prescribing the abortion pill is illegal in Canada, such requests are unlikely to meet the test, said Robert Currie, a law professor at Dalhousie University in Nova Scotia.

But in some instances, he said, the double criminality analysis could involve “transposing” U.S. legal background.

In a case in which prosecutors sought to extradite a Canadian who prescribed the abortion pill to an American, “we can imagine the court saying that the ‘essence of the offence’ was selling prescription drugs in a market where it was illegal to sell them,” Currie said, “and the fact that it was an abortion drug is just ‘background.’

“This could be a major issue.”

Canada’s Supreme Court decriminalized abortion in the 1988 case R. v. Morgentaler.

“Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person,” the court said in a 5-2 decision.

The ruling did not establish a right to abortion in Canada, and there’s no federal law enshrining one.

Before the decision, abortion was limited to those who obtained approval from a “therapeutic abortion committee” of doctors at an accredited hospital. A majority on the panel had to agree that continuing a pregnancy “would or would be likely to endanger [the woman’s] life or health.”

Some hospitals didn’t have enough doctors for a committee. Others saw only patients who lived within a certain geographic area or imposed quotas on the procedure. All other providers of abortion, or women who got them, faced criminal penalties.

Some Canadian woman crossed the border for abortions. In 1984, more than 3,480 Canadian residents secured legal abortions in the United States, according to a Statistics Canada report at the time. At trial in R. v. Morgentaler, the director of a women’s health center in Minnesota testified that many Canadians clients faced delays at home.

Arthur, from the Abortion Rights Coalition of Canada, noted that history.

“The clinics were very welcoming, and I know there’s been expression up here that the tables are turned now,” she said. “We want to help Americans coming up here. We want to reciprocate but also recognizing that it’s going to be a challenge for us and we’re not going to be able to help as many Americans at the end of the day.”

Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.