Abortion Access and Federalism in Canada: Old Struggles With New Possibilities

Speaking at the 60th Commission on the Status of Women in 2016 Prime Minister Justin Trudeau was applauded for his embrace of a feminist identity. He explained: “I’m going to keep saying loud and clearly that I am a feminist until it is met with a shrug…It shouldn’t be something that creates a reaction.” Throughout his tenure as Prime Minister he has remained true to this mission of rhetoric, continually reminding the public that he identifies as a feminist. The question, however, is whether his rhetoric matches his practice. 

As Prime Minister of Canada, the self-proclaimed feminist has a high degree of influence over policy. One major feminist issue that the Prime Minister has influence over is abortion. The early division of powers between the federal and provincial governments resulted in federal control over abortion, included under the broader category of bodily integrity. Additionally, with the federal government’s ability to raise higher revenues for social spending, has resulted in the federal government having some control over health policy, which is provincial jurisdiction. 

Despite these powers falling under federal jurisdiction, the province of New Brunswick has continued to undermine access to abortion without significant repercussions from the prime minister. Rather, the issue is being brought to the court system by the Canadian Civil Liberties Association. This has been a missed opportunity for the prime minister to make significant feminist change.

Abortion Access in Canada: Continuity Amidst Change 

Access to abortion in Canada arrived on the political agenda following women’s organizing in the 1960s. In 1969 the Criminal Code was amended to outline when abortions were legally acceptable. This amendment took responsibility off of the legislative sector and placed it onto the medical sector. Decision making power was given to the Therapeutic Abortion Committees (TACs), where a panel of medical professionals would make decisions on a case-by-case basis. This change resulted in many problems, including lack of women’s autonomy to choose and inconsistency in decision-making criteria across cases and across provinces. 

The amendment to the Criminal Code in 1969 was met with the Abortion Caravan in 1970. The Abortion Caravan made three demands. First, the repeal of all mention of abortion in the Criminal Code. Second, provision of free birth control coverage for all women. And third, the creation of community-controlled women’s clinics that would provide birth control, abortions, and pre- and post-natal care with the federal and provincial governments sharing funding 50/50.

Despite the strength of the movement, decriminalization was not achieved until 1988, in large part due to the introduction of the Charter of Rights and Freedoms. The majority ruling of the case found that the Criminal Code infringed on woman’s section 7 Charter rights, which guaranteed life, liberty and security of the person. It was decided that security of the person included the right to choose to have an abortion. Thus, TACs were no longer needed to decide which women were eligible for abortion; rather, all women were considered eligible. 

This successful decriminalization was met with an attempt in Parliament to pass legislation that would recriminalize abortion. Decriminalization of abortion was part of a larger shift towards secular liberalism, separating church from state. Not all agreed with this increasing separation between church and state led by then prime minister Pierre Elliot Trudeau. Social conservatives were particularly keen to continue to legislate abortion access nationally. After passing through the House of Commons, though, the vote resulted in tie amongst Senators. This not only stopped the bill from progressing but also served as a deterrent for future attempts to recriminalize abortion at the federal level.

Abortion has become almost a third-rail issue in federal politics. Despite some backbench Members of Parliament introducing private members bills in attempts to recriminalize and restrict abortions, federal party leaders have urged party members to steer away from anti-choice rhetoric. Conservative Party leaders have had no desire to re-open the abortion debate while Liberal Party leader Justin Trudeau has made it clear that all Liberal caucus members are expected to vote pro-choice on any anti-abortion measures. However, the debate has not ended, it has simply shifted. Rather than mobilizing for abortion legislation and criminalization, anti-abortion activists have been focusing on changing the culture around abortion to make the procedure less attractive to women. 

Where legislation remains a tactic, such as in the maritime provinces, there is less of an interest in pursuing criminalization of the practice and greater commitment to restricting access. In part this is because Nova Scotia, New Brunswick and Prince Edward Island experienced constitutional challenges when pursuing criminalization of private, out-of-hospital abortion clinics. Restriction without criminalization, though not in line with the Canada Health Act, has been discouraged but accepted.

The New Brunswick Case

Despite decriminalization of abortion in 1988, then, provision of provincial funding for private women’s clinics that perform abortions has remained a contested issue. Following decriminalization, Liberal Premier of New Brunswick Frank McKenna attempted to force the closure of a Morgentaler clinic that opened in 1994 through legislation. Ruled unconstitutional, McKenna instead moved to ensure that the private clinic did not receive provincial funding. This measure had bi-partisan support from the two dominant parties in New Brunswick, the Liberals and the Conservatives. 

The past federal election in 2019 and provincial election in 2020 have shifted the discourse on abortion in New Brunswick. Prime Minister Justin Trudeau, while campaigning in New Brunswick, asserted that he would pursue the enforcement of the Canada Health Act, which does not allow for double-billing (meaning a province is not allowed to permit private pay-for-service fees while receiving federal funding to cover healthcare). In the 2020 provincial election, Liberal Party contenders for the first time came out in support of providing provincial funding for out-of-hospital abortions. Neither of these shifts in perspective, however, have resulted in transformative policy shifts. 

In 2014, after 20 years of operation, the Morgentaler clinic closed due to lack of funding. Clinic 554, which replaced the Morgentaler clinic in 2015, is now facing a similar fate. There are three hospitals in New Brunswick where abortions are permitted to take place with full coverage. In private clinics, such as Clinic 554, individuals seeking abortions must pay between $700 and $850 out-of-pocket. Not only is this cost a barrier for individuals seeking abortions, but this is also a barrier to the clinic remaining open. Clinic 554 was only able to open in 2015 as a result of crowd-funding efforts by pro-choice groups, such as Reproductive Justice New Brunswick and Fredericton Youth Feminists because the clinic operates on a not-for-profit model.

Despite the current barriers, the closure of the clinic would result in a new set of barriers. The three hospitals offering abortion services are geographically far away from Fredericton, where Clinic 554 operates. The closure of the Clinic would mean that individuals seeking abortion would need to travel long distances and often have to stay overnight in hotels, incurring costs that are not covered by the province. 

The two sets of barriers serve as the rationale behind a current constitutional challenge. The Canadian Civil Liberties Association is arguing that New Brunswick’s General Regulation, NB Reg 84-20 is unconstitutional for stipulating that abortions shall not be covered by the province’s Medicare program unless they are performed in an approved hospital. While New Brunswick is the only province now that does not cover clinic abortions, the grounds for this legal action do not appear to be strong. Whereas the Canada Health Act does allow for financial penalty to be applied to provinces that fail to provide abortion coverage, the Canada Health Act does not stipulate the degree to which provinces must provide coverage. In the past this has meant that restrictions like the current ones being challenged were allowed to remain in place. Thus, this may be a cultural not a legal issue.

Federalism: Can a feminist prime minister make a difference?

While the Prime Minister is a self-described feminist, many feminist scholars believe that federalism, the political structure that exists in Canada, puts barriers in place for organizing around women’s issues. While federalism creates multiple levels of government, meaning interest groups can in theory ‘shop around’ to find politicians aligned with the goals of the interest group. In practice, though, having multiple levels of government means that advocacy requires greater amounts of time and resources to reach all potential allies in elected positions. Additionally, having multiple levels of government can result in legal grey zones, with neither level wanting to take responsibility for an issue. Having a feminist prime minister though, in theory means that there is a women’s rights advocate in the most powerful position in Canada. Meaning that the barrier of federalism should be less of an issue.

Applied to the case of abortion restrictions in New Brunswick, what is needed is an alignment of federal and provincial levels of government both committed to undoing restrictions around abortion. In theory, this existed when Liberal Party leader Brian Gallant was premier of New Brunswick from 2014 to 2018 and Liberal Party leader Justin Trudeau was elected in 2015. Whereas Trudeau is a self-proclaimed feminist, Gallant’s government took measures to ensure Mifegymiso (the “abortion pill”) was available to all New Brunswick residents who have a New Brunswick Medicare card free of cost. Gallant’s government additionally removed the rule requiring residents seeking an abortion to gain the approval of two separate doctors first. Additionally, Gallant and Trudeau negotiated a bi-lateral healthcare funding deal in 2016, which saw the federal government increase healthcare funding in the province without any changes to restricted abortion services.

However, federal pressure to fund out-of-hospital abortions did not begin until Gallant’s Liberal government was replaced by Blaine Higg’s Conservative government. Late 2019, the federal Minister of Health, Patty Hajdu, announced that the government would be following through on the Canada Health Act’s guideline that patient charges should result in a deduction to federal health transfer payments. Not only was the Conservative premier in place unwilling to make changes to abortion restrictions, but also the global pandemic meant that the federal government would later need to provide the province with the deducted $140,000 with no strings attached. Now, with Clinic 554 on the verge of shutting down due to lack of funding, reinstatement of the financial punishment in the future seems too little too late.

With a feminist in power, it should be easier to bring issues such as abortion to the fore. The inability (or unwillingness) of the prime minister to do so in his first term, when there was a strategic opportunity to make feminist change, should serve as a reason to question what feminism means to the prime minister. Stephanie Paterson and Francesca Scala examine whose idea of feminism is informing policy and institutional changes under Trudeau’s leadership. They argue that the feminism being infused into federal government logic is a narrow feminism derived from white and class privilege, which assumes that inclusion and equal opportunities will solve inequalities. Meaning abortion in New Brunswick was likely a low priority given that, in theory, all women have access to birth control, the abortion pill, and the ability to drive long-distances to receive the procedure if need be despite how in practice class and other factors serve as barriers to each of these solutions. 


Abortion, despite largely being off of the political agenda in Canada, remains a hotly contested issue – especially in certain parts of the country. Despite opportunities for feminist progress on the issue, we have largely experienced continuity rather than change. For feminist progress to be achieved there is a need for a different feminist logic at either the federal or provincial level. The feminist movement supporting the Canadian Civil Liberties Association legal case can help transform the feminist logic that currently exists at the federal level by presenting new perspectives on an old issue. However, transformative change is unlikely to occur quickly. The institutional arrangements in place are not easily conducive to feminist logics that pose serious challenges to old logics. This type of change will require taking up the Abortion Caravan movement from 1970. Individuals, from across Canada, must make demands for change in alliance with the legal case to pressure the prime minister to match his feminist rhetoric with feminist practice.

The views, thoughts, and opinions expressed in this article belong solely to the author, and do not reflect the views of Conversationally Speaking Magazine

Lori Oliver
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Lori Oliver is a doctoral student in the Department of Political Studies at Queen’s University and a SSHRC Joseph-Armand Bombardier Doctoral Scholar. Her research interests include gendered welfare state politics, poverty, housing/homelessness policies, and intersectional inequalities. Lori previously worked on community-based research projects with ACORN Canada, Adsum for Women & Children, and the IWK Health Centre. Her current PhD research is critically assessing gaps in social safety nets and homelessness initiatives that contribute to increasing levels of family homelessness.

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