Clinic 554 and abortion access: 5 key questions answered

Clinic 554 has been at the centre of New Brunswick's abortion access debate, and during this election campaign, the Liberals, Greens and New Democrats have all promised to improve access.

Medicare covers abortions performed at three hospitals in the province, two in Moncton and one in Bathurst.

The only other place providing surgical abortion services is Clinic 554, a family practice run by Dr. Adrian Edgar in Fredericton. Abortions there are not covered under Medicare and can cost a patient between $750 and $800, if the clinic doesn't reduce or waive the fee. 

Last year, Prime Minister Justin Trudeau promised during the federal election he would force New Brunswick to fund abortions at the clinic.

But Progressive Conservative Premier Blaine Higgs, who is personally opposed to abortion, refused, saying he was on safe legal ground. Women had enough access to abortion in New Brunswick already, he said.

Clinic abortions are not covered because Regulation 84-20 in the province's Medical Services Payment Act has a line specifically excluding abortions done outside hospitals from funding.

For people voting in the Sept. 14 election, it can be challenging to sort through the arguments. Here are answers to the more pressing questions:

1. Does refusal to fund Clinic 554 violate the Canada Health Act?

Federal Health Minister Patty Hajdu made Ottawa's position official in February: the province is contravening the Canada Health Act by not covering out-of-hospital abortions. 

The federal government withheld $140,000 from health transfer payments. That's how much New Brunswickers spent out-of-pocket on surgical abortions in 2017.

That didn't change Higgs' mind.

And Ottawa later gave the money back because of the COVID-19 pandemic.

Higgs said the province is "certainly providing the access that's required." 

Last week, he said he's been "clearly advised by our legal professionals" that he's following the rules. He did not elaborate on who these legal professionals are and said if anyone disagrees they should take the province to court. 

Asked to explain what the province's legal defence would be, Higgs said, "that's what you'd find out in a hearing." 

Kerri Froc, an associate law professor at the University of New Brunswick, said the Canada Health Act stipulates a province must pay for all insured health services regardless of whether they're done in or out of hospital.

The Canada Health Act is pretty clear that the barriers can be either direct or indirect.- Kerri Froc, law professor.

Another section of the federal legislation says services must be provided "on a basis that does not impede ... directly or indirectly … reasonable access." 

Froc said based on this wording there's "no doubt" the province is contravening the federal Health Act.

She said if someone in Fredericton or elsewhere needed a surgical abortion, she would need to arrange for child care, stay in overnight accommodations in Moncton or Bathurst, or bring a friend along because she wouldn't be able to drive after a surgical procedure.

That amounts to a barrier for women that is not allowed under the act, she said.

"The Canada Health Act is pretty clear that the barriers can be either direct or indirect.

"The fact that [women] are usually the primary caregiver of children, this all imposes barriers if you're not going to have a service that is accessible to them in their community."

Higgs has previously said people have to travel for MRIs, for example, and that's not considered a contravention of the Health Act. Froc said the two services are not comparable.

"Number one, we don't have a history in this province of trying to block access to MRIs," she said. "Number two, there's way more access to MRIs than there is to abortion services.

"Number three, abortion is part of women's rights to liberty and security of the person." 

2. Does the Constitution or the Supreme Court require the province to fund abortions at the clinic?

Froc said New Brunswick has a history of putting up barriers to abortion even after a landmark Supreme Court ruling.

In 1988, the Supreme Court's decision in a Dr. Henry Morgentaler case decriminalized abortion in Canada.

Before this decision, women had to get approval from an "abortion committee" to have a legal abortion. The court found this violated the Charter of Rights and Freedoms because it denies women their right to security of the person, Froc said.

Key questions answered about Clinic 554, abortion access in N.B.

4 years ago

Duration 2:48

Clinic 554 and the access it provides to abortion have been a provocative issue in the Sept. 14 election. Key questions are answered here.

"The court said it put women under both physical risk — because the longer you wait for an abortion, the more medically risky it gets — and also mental duress."

But that wasn't the end of barriers faced by New Brunswick women. Until 2015, patients had to get approval from two doctors to get an abortion in hospital. Then-premier Brian Gallant amended Regulation 84-20 to remove that rule but still kept the line that excluded in-clinic abortions from funding.

She said the reasoning in the Morgentaler decision can be extended to other kinds of barriers that aren't legal, such as financial barriers, barriers of location and barriers related to women having to travel.

"Those kinds of stresses are more than the stresses of everyday life. They're serious. So likely security of the person is violated."

However, this argument has never been resolved by a New Brunswick court.

3. How was it decided which hospitals would provide abortions? And are three enough?

Decisions on where to offer surgical abortion services are based on more factors than just demand.

When the Brian Gallant Liberals repealed the two-doctor approval rule, Horizon Health planned to offer the service in hospitals in Fredericton, Moncton and Saint John.

But that didn't happen.

John McGarry, the CEO of Horizon Health at the time, said funding and "congestion" issues played a role, as well as the "conscience" of some employees of the health network. 

"They need to be very comfortable with that. We don't force this."

Five years later, the Moncton Hospital is the only Horizon centre offering the service.

Higgs said if there is an accessibility problem, he expects the health authorities to bring that forward "and they would recommend a solution."

Horizon has already joined reproductive right activists in calling for funding private-clinic abortions. The authority passed a resolution to that effect earlier this year.

Horizon's vice-president of clinical services, Geri Geldart, said earlier this year that the health authority "fully supports increased access to these procedures in safe, quality environments outside a hospital setting."

Although the Health Department in Higgs's government commented on the resolution in public at the time, Higgs said last week that he'd never heard of the resolution.

Higgs questioned why the authority wouldn't propose offering abortions in more of its hospitals if access is an issue.

"Why would we not look at other locations as opposed to a private location?" he said Friday.

"If the medical professionals are proposing that, to open up additional hospitals, I would like to see that recommendation. At this point, I have not seen that." 

Geldart said Horizon has no plans to expand the service to any more hospitals.

Vitalité Health Network, in discussions with the province, decided its Moncton and Bathurst hospitals provide enough access considering the population and historical abortion demand, according to spokesperson Thomas Lizotte.

The province has also previously said making the medical abortion pill Mifegymiso available is increasing access, as this new availability coincided with a decrease in surgical abortions. Mifegymiso is prescribed for pregnancies up to nine weeks.

Horizon Health provided CBC with the following table to show how many times surgical abortions were done in hospital versus how many times the abortion pill was prescribed.

4. Why are vasectomies at private clinics funded, but abortions aren't? 

Higgs has previously said the funding of Clinic 554 would be wading into the privatization of health care.

But all family practices, including Clinic 554, are private operations that bill the public system. What makes Clinic 554 different is that abortion is singled out and excluded from funding.

Last week, Higgs said vasectomies are covered and abortions are not because "what's been prescribed as being funded through the Canada Health Act is what each province must adhere to."

However, the Canada Health Act does not prescribe what procedures exactly must be covered, so long as the provinces meet general criteria, including accessibility. 

Stéphanie Bilodeau, spokesperson for the provincial Health Department, said "other smaller medical procedures," such as vasectomies are offered in office locations under Medicare services, and procedures that require general anesthesia or "conscious sedation" can't be billed to Medicare if performed in an office.

Edgar, of Clinic 554, said the level of nitrous oxide he uses for first-trimester abortions is "minimal sedation," a step below conscious sedation.

5. Why is the clinic not financially viable, if other Medicare-covered services bring in revenue?

Clinic 554 serves about 3,000 patients as a family practice, and every service it provides other than abortion is covered by Medicare.

Edgar specializes in LGBTQ care but has been turning down new hormone replacement therapy patients because he's trying to sell the clinic.

The clinic charges "substantially" less for an abortion than what it costs Medicare in a hospital, which is about $1,300, he said.

He said he doesn't keep statistics, but the clinic often discounts the price in a "pay-what-you-can" model, or provides the service for free.

"We siphon the money from those visits towards the operating room team, so that we can continue to subsidize abortion access for patients who can't get to the remote hospitals that are available," he said.

Edgar said he's resigned to moving on because the clinic is not viable. He's already taken steps toward a new job.

Clinic 554 has been for sale since October of last year.  

Another doctor is interested in taking it over, running it as a sexual health centre and continuing to provide abortions. 

Plans are still up in the air, Edgar said.