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Abortion Advocates Are Suing Only Canadian Province That Doesn’t Allow Abortions

Despite abortion’s legal status across Canada, Prince Edward Island has maintained a strict policy of sending women outside the province to receive abortion services, which the province then pays for.

by Hilary Beaumont
Jan 5 2016, 6:25pm

Pro-choice rally in New Brunswick/VICE Canada

An abortion advocacy group is launching a constitutional challenge against the only Canadian province with a policy against providing abortions.

Despite abortion's legal status federally, Prince Edward Island has maintained a strict policy of sending women outside the province to receive abortion services, which the province covers under medicare. But on Tuesday, Abortion Access Now PEI (AAN PEI) notified the province of its intent to sue, arguing the policy violates PEI residents' rights to equal access to healthcare under section 15 of the Canadian Charter of Rights and Freedoms.

"PEI's Abortion Policy is a state-imposed barrier to the right and ability of individual women to exercise control over matters fundamental to their physical, emotional and psychological integrity," the group said in a release. "Difficulty, uncertainty, delay, lack of access and stigma cause PEI women physical and psychological harm, including harm to conscience and dignity."

The group will officially file the challenge in 90 days, but must first notify the province of its intent to sue.

Officially, no abortions are provided in the province, which has a Liberal government but a strong pro-choice presence. By word of mouth, though, women are able to find doctors willing to prescribe them abortion pills to induce miscarriage. But if the pills don't work, they can be left in limbo.

The story of one such woman, Courtney Cudmore, gained international attention in early 2015 after medication she took to induce an abortion failed, and a doctor subsequently refused her medical treatment. The doctor told her "we are not comfortable" dealing with her situation, and instead directed her to a clinic in Halifax, a four-hour drive away.

Related: Harrowing Experiences of Medical Abortions on Canada's Prince Edward Island Renews Criticism

In June 2015, after going public with her story, the PEI government announced it was taking a "first step" in improving abortion access by sending women to a neighboring province, New Brunswick, for abortion services. The government also announced a toll-free information line. Cudmore called it "a slap in the face."

In an interview Tuesday, Cudmore told VICE News the constitutional challenge is "probably the kick in the butt the government needs right now."

AAN PEI echoed her comments, saying the change doesn't go far enough: "Unfortunately, this commitment is not materializing into local, safe access to legal abortion on PEI."

Nasha Nijhawan, a lawyer with Nijhawan McMillan Barristers who launched the challenge, argued PEI "piggybacked" on New Brunswick's change in its abortion access and used the change to announce closer access for PEI women.

Nijhawan told VICE News the challenge is "novel."

"We haven't had a government say, 'We hate abortion and don't do it in our backyard, but we'll pay for it if you travel.' It's a pretty unique PEI solution to what they think is a controversial issue," she said.

In 1988, Dr. Henry Morgentaler, who performed abortions in his clinics, won a landmark Supreme Court of Canada case in which the court struck down Canada's 1969 abortion law, ruling it violated the Canadian Charter of Rights and Freedoms.

Related: As Women Die From Illegal Abortions in Brazil, Presidential Candidates Remain Silent

"What's unique about this case is that it's saying to the government, you can't just compromise these rights because it's a touchy political issue for you," Nijhawan said. "That's essentially what they've done. Once the right has been established, we say, it's pretty clear based on Morgentaler that you can't interfere with the right of a woman to access abortion as a medical service."

In response to the notice of court action, the PEI government emphasized that it had improved access to abortion for residents: "Last year, the government announced the removal of a number of barriers to improve access to abortion services for Island women," PEI premier Wade MacLauchlan said in a statement Tuesday, CBC reported. The province is currently reviewing the legal notice.

The legal challenge will not be a short process, Nijhawan said. "I wouldn't expect to see a ruling within a year. It's going to take a long time." And depending on the outcome, either side could appeal the judge's ruling.

Given the tense fight over abortion in PEI, which culminated in heated protests in the spring of 2015, Cudmore expects Nijhawan's case will provoke public backlash.

Cudmore is hoping the policy will be struck down. "I hope so. I really hope it does."

"It would be nice to see it finally [struck down]. It's been brushed under the rug here for so long."

Watch the VICE Canada documentary, Abortion Access in the Maritimes:

Follow Hilary Beaumont on Twitter: @HilaryBeaumont