Every Wednesday, our parliamentary correspondent in Ottawa Marie Vastel analyzes a federal political issue to help you better understand it.
Justin Trudeau and his ministers went on successive flights to defend the right to abortion in Canada last week, and take the opportunity to accuse the Conservatives of not doing the same. The legal reversal that is looming in the United States offered the perfect pretext to promise to protect access to it forever. And offers the Liberals what risks boiling down to a partisan squabble with their opponents. Because beyond its fine words, the Trudeau government is limited in the actions it can take to truly improve access to this medical service.
The news of the probable reversal of the judgment Roe v. wade by the US Supreme Court had just passed when Prime Minister Trudeau promised last Wednesday that his government would examine the current “legal framework” and ways to “improve” it to ensure that the right to abortion is protected “under any other government in the future”. Pressed with questions by journalists, who were trying to find out if he intended to legislate on the issue, he replied that he was “not ruling it out, but [que] it was not the only way to do it”.
His ministers have since tempered. The Canadian Charter of Rights and Freedoms already protects the right to abortion, recalled the Minister of Justice, David Lametti. The Canada Health Act guarantees access, noted his health colleague, Jean-Yves Duclos, affirming that the government would continue “to use”, but also to “strengthen” the mechanisms allowing to ensure that the provinces do offer it.
This last avenue is probably the simplest — and the only one — available to the government.
First and foremost provincial access
Or, Justin Trudeau could theoretically decide to amend the Charter to explicitly include the right to abortion. “It’s the only thing that would bind any future government,” observes Daphne Gilbert, a law professor specializing in reproductive justice at the University of Ottawa. But no specific rights are so set out in the Charter, and negotiations to make such a change would be complicated, to say the least.
Another extraordinary option: make a reference to the Supreme Court to determine whether it would be unconstitutional to deny access. However, this would run the risk, although unlikely, that the court would not rule in this direction.
Justin Trudeau could also go for a law enacting the right to abortion. However, it could be amended by a subsequent government or challenged by an interest group or a province wishing to protect its field of health jurisdiction. “I’m not sure that the limits of federal jurisdiction allow a federal government to legislate on a right to abortion,” confirms Margot Young, professor of constitutional law at the University of British Columbia.
The Trudeau government is well aware of this. And anyway, the right to abortion is essentially enshrined in the Charter, say the experts consulted. The Liberals therefore seem to favor the avenue of the current Canada Health Act, which makes it possible to cut off part of the health transfers to the provinces that do not offer sufficient access to abortion. But these sums have been derisory in the past, since the financial penalty is only calculated according to the price of the care that was not provided. However, the formula used does not appear in the law: the right to modify it thus seems to be left to the discretion of the federal government.
Professor Young believes, however, that by imposing on the provinces the obligation to offer better access to abortion under threat of seeing their transfer reduced, the federal government could be accused of abusing its spending power. “It is a legally possible avenue, but politically delicate. »
In the meantime, the Liberals are going through the funding of abortion access support organizations, to which they will promise on Wednesday a share of the $ 45 million provided for in the 2021 budget.
Because it is on this level — and under the aegis of the provincial governments — that the right to abortion could really be improved. By multiplying the access points, but also by ensuring that family medicine students are trained to practice it. (Professor Gilbert notes that some are still reluctant to do so, for fear of jeopardizing their reputation and their safety.) And by obliging doctors who refuse it, citing their right of conscience, to refer their patients to a colleague (which do not require Alberta and Saskatchewan).
A simple partisan tool
The Liberals could have contented themselves with pointing out that 48 of the 119 Conservative MPs oppose abortion. Especially since some of them will appear openly, as every year, at the “March for Life” scheduled for Parliament Hill on Thursday. Or remember that 81 Conservatives backed a private member’s bill last year to ban sex-selective abortions.
Or that at least three other private bills and a motion to review the legal status of the fetus have been introduced in the past 14 years. A proposal that would have made it a criminal offense to injure or kill an unborn child by injuring its mother even passed second reading in 2008 before being shelved by Stephen Harper’s government as it approached. of the election.
Instead, Liberal ministers paraded in turn to promise to defend the right to abortion. The government even used one of the questions it can ask itself, in the Commons, to allow Justin Trudeau to accuse Quebec Conservative MPs of remaining “silent” in the face of their pro colleagues. -life. “Shame on the Quebec conservatives,” he chanted. Some of them had however expressed themselves in press briefings and on social networks.
The supply of medical services being a provincial responsibility, and the right and access to abortion already being legally protected, such oratory outbursts were perhaps all that was available to Justin Trudeau in the immediate future.