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The Morgentaler Ruling: 30 Years Later, We're At A Turning Point

This could be another milestone moment in Canada's long history around abortion and reproductive rights.

01/28/2018 06:00 EST | Updated 01/28/2018 06:00 EST

Thirty years have passed since that January day when Canada's highest court decriminalized abortion. But how far have we really come?

Toronto Star via Getty Images
Placard-waving pro-abortion activists break into shouts of jubilation on Jan. 28, 1988, the day a 5-2 ruling by the Supreme COurt struck down Canada's abortion law. The ruling ended Dr. Henry Morgentaler's 18 years of battling prosecutions on charges of performing illegal abortions.

Decades of stalemate ended in 2017, a milestone year. The World Health Organization gold standard abortion pill became available in Canada — 30 years after France and China. Ontario raised the bar by introducing "bubble zone" legislation with new safety measures that protect health care providers prescribing the abortion pill and their patients. Health Canada lifted most of the unnecessarily strict regulations of the abortion pill, which posed significant barriers to access. The federal government addressed oversights that have led to the funding of anti-choice programs.

But none of these wins were complete victories. Access to abortion services is still compromised for many people in Canada. More than three quarters of Canada's provinces and territories have no "bubble zone" laws that safeguard patients and providers from harassment. It took 30 years for Canada to finally roll out the abortion pill (Mifegymiso) and it remains out of reach for many. The federal government still allowed years of funding for groups known for spreading false information about abortion and pregnancy options, and now we're seeing a small but mighty backlash from a vocal minority protesting the decision to protect people's rights.

Are we willing to seize new opportunities, or will we continue to tolerate violations of human rights?

A whole lot hasn't changed in 30 years, but there is momentum. The question is: are we willing to seize new opportunities, or will we continue to tolerate violations of human rights — including the rights to life, health, equality, reproduction, self-determination, freedom from cruel treatment and enjoyment of scientific progress — that deny people, especially young people and marginalized people, the ability to make decisions about their own bodies?

Canada prides itself on equality and universal health care, but current barriers to care disproportionately affect young people and marginalized people, especially those who are low-income, people of colour, Indigenous, migrants or refugees, and those who don't speak English or French. The same people whose voices are often neglected in policy change and government funding.And these barriers are compounded for people living in rural or remote areas.

After 30 years, access is still uneven across the country. Only one in every six hospitals provides abortion, and most of the facilities are poorly dispersed across Canada, located in urban centres and within 150 kilometres of the U.S. border. For such a time-sensitive and often private procedure, this creates significant challenges like travel, accommodation, lost wages, childcare and eldercare — the list goes on and on.

Getty Images
An example of a Mifegymiso abortion pill, also known as the two-drug combination RU-486.

The abortion pill offers an opportunity for access to remote areas where none currently exists, but this too has been met with roadblocks. For starters, only six provinces offer universal cost coverage of the pill's $300 to $450 price tag. The rest of Canada is paying out of pocket.

For those who can afford it, they may still have to travel far distances to access the pill. Although Health Canada has recently removed most of its unnecessary restrictions around prescribing and dispensing Mifegymiso, one significant barrier remains: a mandatory ultrasound requirement (despite professional guidelines that provide alternative means when an ultrasound is not available). The abortion pill has the potential to create access to an essential medical service in rural and remote clinics, but most don't have access to an ultrasound machine or wait times can total weeks.

The time is ripe for our governments to take a real stand.

Access to such a timely medical service shouldn't depend on your postal code. So, where do we go from here? For 30 years, progress has been slow, but conversations about unfair access to health care have really picked up steam. We're at a turning point.

The time is ripe for our governments to take a real stand. They have the legal backing — and obligation — to do so.

Abortion falls under the Canada Health Act as a medically necessary procedure. The Canada Health Act requires provinces and territories to provide universal coverage for all insured persons for all medically necessary hospital and physician services, without co-payments, and to satisfy the criteria of public administration, comprehensiveness, universality, portability and accessibility. That means provincial governments, in meeting their obligations under the Canada Health Act, must ensure reasonable access to abortion services that are fully funded by Medicare.

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It is the federal government's responsibility to ensure that provinces and territories meet these requirements, and that those that don't are held accountable. At the Health Ministers' Summit last fall, following discussion on unequal access to Mifegymiso across Canada, Health Minister Ginette Petitpas Taylor told reporters that she would "look into the matter and also speak to all our provincial and territorial officials to see if we can move forward on this."

If the government is serious about taking steps toward real access for all people in Canada, this could be another milestone moment in Canada's long history around abortion and reproductive rights.

And we're ready for it. Thirty-plus years ago, the Canadian Association for Repeal of the Abortion Law (CARAL) was created to protest Dr. Morgentaler's incarceration. CARAL branched off into the Abortion Rights Coalition of Canada (ARCC) and Canadians for Choice, who eventually joined forces with Canada's Planned Parenthood Federation (the Canada Federation for Sexual Health) and the international sexual and reproductive rights organization ACPD to become Action Canada for Sexual Health and Rights.

We've been fighting this fight for over 30 years. We'll keep fighting until every person from coast to coast to coast has access to accurate information and the full range of services they need to be able to make the decisions about their bodies that are right for them.

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