Access to Safe Abortion as a Matter of Right

Taking a Human-Rights Based Approach to abortion laws

By: Martha Côté (2L)

World Health Organization (WHO) flag

(Credit: United States Mission Geneva)

On September 1, the United States Supreme Court delivered a 5-4, unsigned opinion in which the majority declined to step in and prevent what would soon become the country’s most restrictive abortion laws from coming into force. The decision rests on procedural grounds and is silent in its assessment of the substance of Texas Senate Bill 8. In doing so, the five Justices avoided addressing how this law appears to blatantly violate precedent established by Roe v Wade, the landmark decision that affirmed the constitutional right to access safe and legal abortion in the U.S.

At least one Canadian court will soon be called to wrestle with its own restrictive abortion law. In 1988, R v Morgentaler (Canada’s Roe), saw the Supreme Court strike down the criminal prohibition on abortion on the grounds that it unjustifiably infringed upon the constitutionally protected right to life, liberty, and security of the person in a manner that failed to comply with the principles of fundamental justice. Since verdict was rendered, access to abortion has not always been available to all those who seek it. By excluding abortion procedures performed outside “approved” hospital facilities from services covered by the province’s Medicare coverage, New Brunswick Regulation 84-20 Schedule 2(a.1), enacted under the provincial Medical Services Payment Act, has effectively made abortion inaccessible to the greater part of the population. Due to a lack of provincial funding, the closure of the province’s sole clinic providing surgical abortion services is imminent. 

In January of 2020, the Canadian Civil Liberties Association (CCLA) filed a lawsuit against the Government of New Brunswick to, inter alia, have Schedule 2(a.1) declared to be of no force and effect as violating sections 7 and 15 of the Charter. On June 1, 2021, Madam Chief Justice DeWare of the Court of Queen’s Bench of New Brunswick granted the CCLA’s request for public interest standing in this action (CCLA v PNB, 2021 NBQB 119). The constitutionality of Regulation 84-20, however, has yet to be squarely addressed. 

In their statement of claim, the CCLA cites New Brunswick’s political and principled opposition to the provision of barrier-free abortion services. In the U.S., the issue of access to abortion is often similarly described as highly politicized, with Democrats and Republicans standing in broad (and often overgeneralized) opposition in what can feel like an inexhaustible debate. And pervading the general discourse — whether on social media, in the legislature, or in the parking lot of women’s health clinics — are a lot of strong emotions. 

This is perhaps as good a place as any in this piece to disclose my own position: I believe in providing barrier-free abortion services (including post-procedure care) to all who seek them and that these services should be provided at no cost to the patient. In my experience, statements such as this are often followed by a justification hinging on personal experience or stated moral beliefs, sometimes both. I could supply my own as well, but, like many, my reflexive reasoning is so specific and full of pathos that engaging in a productive conversation with someone of the opposing view has not always been useful. 

I would instead take this opportunity to consider a human rights-based approach (HRBA) for a productive framework to examine the issue of access to abortion. Such an approach is characteristically anchored in a system of rights and corresponding State obligations established by international law. 

As described by the World Health Organization (WHO), “an HRBA empowers rights-holders to claim their rights, and supports duty-bearers to meet their obligations ... an HRBA also analyzes a policy cycle through a framework of human rights principles of equality and non-discrimination, participation, indivisibility, and the rule of law, as well as the ‘AAAQ’ framework, which identifies availability, accessibility, acceptability, and quality of health care facilities, goods, and services as essential components of the right to health.” Regarding health policies, the United Nations’ (UN) common understanding on a Human Rights-based Approach would dictate (i) that these policies further the realization of human rights as contained in the Universal Declaration of Human Rights, (ii) that a process whereby human rights standards and principles are promoted guide their implementation, and (iii) that these policies support duty-bearers in meeting their obligations and/or right-holders in claiming their rights. 

The Office of the High Commissioner for Human Rights, the leading UN entity on human rights, characterizes abortion as a reproductive health service. Under international law, “States parties may adopt measures designed to regulate [such services],” but doing so “must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the [International Covenant on Civil and Political Rights]” (emphasis mine). These other rights include the right to health and to be free from cruel, inhumane, and degrading treatment, which can be jeopardized when a person is either forced to bring an unwanted pregnancy to term or to resort to unsafe abortion practices. Correspondingly, adopting a HRBA, the  need for safe, legal abortion services to preserve the rights of roughly half of their population imposes on States an obligation to provide them. Per the Committee on Economic, Social and Cultural Rights, States “have a core obligation to ensure, at the very least, minimum essential levels of satisfaction of the right to sexual and reproductive health which includes measures to prevent unsafe abortion.” 

This last quote raises a semantic point worth briefly addressing. Adopting a HRBA on the issue at hand has so far led the WHO to issue technical and policy guidance recommending  the implementation of laws and policies providing for “safe abortion care” rather than mandating states provide accessible, legal abortion services, subject to above-qualified regulation. Data shows that, in practice, this may be a distinction without a difference. According to the Guttmacher Institute, across the world, around one in four pregnancies are terminated by abortion, whether legal or not. In fact, their research shows that the difference in abortion rates between countries that prohibit abortion altogether or allow it only to save a woman’s life and those that broadly allow it is “not statistically significant.” 

Where legal abortions are inaccessible, people resort to seeking out unsafe abortions, which the WHO defines as “carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards or both.” This means that restricting access to abortion does not deter those seeking to terminate their pregnancy — instead, it puts their life at increased risk. Providing safe abortion care therefore amounts to providing accessible, legal abortion services.

Texas’ Senate Bill 8 prohibits abortions past six weeks from conception. Whereas few are even aware of their pregnancy this early on, the stated justification for this hyper-restrictive cutoff is that this is when “fetal heartbeat” can first be detected. In other words, the state legislature sees the right to life of the fetus engaged at the six-week mark. Medically, this is at least misleading, as embryos do not have a heart at that stage of their development. When life begins, from a scientific perspective, remains disputed. Yet, under international law, the right to life of the pregnant person is undisputed. Plus, insofar as only specific groups of people can physically become pregnant, laws and policies that risk violating their rights raise major concerns of discrimination. In the Canadian context, this raises the question of the constitutionality of legislation restricting access to abortion services, as the CCLA claims Regulation 84-20 does. 

Human rights bodies, including the UN’s Committee on the Elimination of Discrimination Against Women, describe the “forced continuation of pregnancy” via restricted access to safe abortion services as a form of gender-based violence. It is worth noting, as does the CCLA, that vasectomies are covered by Medicare in New Brunswick whether performed in a hospital or clinic. Furthermore, restricted access to abortion services disproportionately affects the poor, the young, and those living in rural areas. The last pointis hyper-relevant to New Brunswick, where around half the population lives outside urban areas, and where the only hospital facilities “approved” to provide abortion services covered by Medicare are in the cities of Moncton and Bathurst. Unsurprisingly, the disproportionate effect of Regulation 84-20 on the “underprivileged, marginalized, and vulnerable” also features in the CCLA’s argument. 

Taking a HRBA does not preclude regulating abortion services, nor does it provide a definitive blueprint for ideal legislation. Rather, within this framework, discriminatory policies that trample the free exercise of human rights are unacceptable. It follows that laws that ban abortion or limit access to abortion services (particularly for members of marginalized groups) to the point of discriminatorily jeopardizing the right to life, health, and dignity of those who seek these health services are unacceptable. It remains an open question whether domestic legal institutions in Canada, the U.S., or any of the many countries where similar restrictions endure, will come to the same conclusion, and act on them in a meaningful way.