Of What Difference? - National Abortion Federation

ight to free and informed decision-makinggoverns.Economic accessibility or affordabilityremains a continuing concern. Immediatelyafter judicial decriminalization, allprovinces, with the exception of Ontarioand Quebec, restricted or withdrew publicfunding for abortion services. BritishColumbia, Manitoba, New Brunswickand Prince Edward Island limited publicfunding to “medically necessary” hospitalabortions. All regulations were legallychallenged on jurisdictional grounds. Somesurvived scrutiny, others were defeated. 14The British Columbia Supreme Courtdeclared the funding regulation“inconsistent with the [law], and withcommon sense.” 15 In Manitoba, the Courtof Appeal called the policy perverse. Byrequiring that abortions be performed inhospitals rather than clinics, “an insurancescheme designed to control costs, willfullyincreased them.” 16Following successful challenges, manyprovinces enacted amended restrictions andso followed a second and more recent seriesof cases.In 2006, a Quebec court ordered theprovince to reimburse almost 45,000women for their out-of-pocket clinicabortion expenses. 17 In 2004, a ManitobaCourt held that denied public fundingfor clinic abortions violated the CanadianCharter of Rights and Freedoms. 18 Whilethe judgment was subsequently setaside, it remains significant in Canadian14 Erdman, supra note 4 at 1094.15 B.C. Civil Liberties Ass’n v. British Columbia(Attorney General), [1988] 49 D.L.R. (4th) 493, 498(B.C. S.C.).16 Lexogest Inc. v. Manitoba (Attorney General)(Lexogest I), [1993] 101 D.L.R. (4th) 523, 552–53(Man. C.A.).17 Association pour l’accès à l’avortement c. Québec(Procureur général), [2006] QCCS 4694 (Qué. S.C.).18 Jane Doe 1 v. Manitoba, [2004] 248 D.L.R. (4th) 547(Man. Q.B.); rev’d. [2005] 260 D.L.R. (4th) 149(Man. C.A.); leave to appeal to S.C.C. refused,[2005] S.C.C.A. No. 513.constitution law. For the first time, a Courtheld that denied access to safe and timelyabortion care violates women’s equalityrights. 19 Litigation in New Brunswickremains ongoing.Canadian courts are increasingly findingthat the different treatment of abortionservices under public health insuranceschemes is unjustified. The opposite is truerespecting the regulation of information:the right to seek and receive information,but also the right to privacy protection, andpublic interests in safety and health.Privacy commissioners across the countryhave inquired into requests for abortionrelatedinformation and refused disclosuresbased on health and safety grounds. 20 Inthe past, requests for abortion-relatedinformation from public bodies weretreated the same as all other informationrequests. There was no presumption thatthe information qualified for protection.A demonstrated risk of harm to health orsafety was required to refuse disclosure.Section 22.1 of the Freedom of Information andProtection of Privacy Act in British Columbiareverses this presumption. 21 A publicbody must refuse to disclose abortionrelatedinformation unless the requestmeets narrow exceptions, for example,generalized statistical information.This different treatment of abortionrelatedinformation acknowledges thedifficult context in which many abortionproviders work. Given that provider safetyis necessary to ensure continued abortioncare, the province protects again disclosurethat would deter service provision. Limitedaccess to abortion information, however,19 For equality rights analysis, see Erdman, supranote 4.20 See e.g. Interior Health Authority (Re), 2007 CanLII7545 (BC I.P.C.) re s. 22.1.21 Freedom of Information and Protection of PrivacyAct, R.S.B.C. 1996, c. 165, s. 22.1(2). “The headof a public body must refuse to disclose to anapplicant information that relates to the provisionof abortion services.”14