In the Back Alleys of Health Care: Abortion, Equality and Community in Canada

Abstract

The decriminalization of abortion in Canada ensured neither its availability nor accessibility as an integrated and publicly funded health service. While Canadian women are increasingly referred to or seek abortion services from single-purpose clinics, their exclusion from public health insurance often render these services inaccessible. This article considers denied funding for clinic abortion services from the perspective of the Canadian constitutional guarantee of sex equality. The article focuses on the 2004 Court of Queen's Bench's judgment in Jane Doe I v. Manitoba, which framed denied public funding for clinic abortion services as a violation of women's equality rights under the Canadian Charter of Rights and Freedoms. Access to abortion services historically has been protected in Canadian law as a security of the person or liberty interest. This judgment is thus a significant development in the jurisprudence. Nevertheless, the Court's equality analysis remains tethered to liberty-based values of autonomy, freedom, and self-determination. Part I of the article evaluates this liberty-based approach and considers why it may be especially ill-suited to the abortion funding context. In an effort to offer an alternative, Part II develops a model of equality analysis emphasizing values of self-respect and self-worth attained through relationships with others and by the recognition of others. This model of equality, premised on the social dignity of equal community membership, is developed with reference to the work of U.S. constitutional scholar Kenneth Karst and his principle of equal citizenship. Part III returns to the equality analysis in Jane Doe I to evaluate denied funding for clinic services according to the proposed community-membership model of equality. The exclusion of clinic abortion services, and by extension the women who require them, from a fundamental institution of community membership - a universally accessible and comprehensive health system - is demonstrated to perpetuate and promote the view that women are less worthy of concern, respect, and consideration as members of Canadian society.

Keywords: abortion, Canada, public health, equality, healthcare, health care funding, access to care, access to health care, reproductive health, law

JEL Classification: K10, J13, I18, I10