Question Period Note: Canada health act - Abortion services

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• In June 2022, the United States Supreme (US) Court overturned Roe v. Wade which repealed the US federal constitutional protection for abortion services and now defers to the individual states to regulate abortion services. This decision has reignited the discussion around access to abortion services in Canada and has brought about questions of Americans living in states with restrictive abortion laws accessing abortion services in Canada, and potential implications for Canadian providers.
• Although access to abortion services in Canada has been improved by the approval and roll-out of Mifegymiso for medical abortion, the availability of surgical abortion varies both between provinces and territories and nationally. Health Canada is aware of coverage issues resulting in patient charges for surgical abortion services in a limited number of private clinics in both New Brunswick and Ontario. Patient charges for access to abortion services received in private clinics are considered user charges under the Canada Health Act. This Government is committed to upholding the fundamental right to choose and believes that no one should be forced to carry an unwanted pregnancy.
• Health Canada has taken action under the Canada Health Act to combat patient charges for access to insured surgical abortion services by levying deductions to Ontario and New Brunswick’s Canada Health Transfers.
• In addition to enforcing the Act, over $3.5 million of funding targeted at improving access to abortion services has been announced through Budget 2021’s Sexual and Reproductive Health Fund.

IF PRESSED ON FURTHER COMPLIANCE ACTION UNDER THE CANADA HEALTH ACT …
• While abortion services are insured in all provinces and territories there is still work to be done to improve access in many areas of the country.
• Health Canada continues to work with Ontario on its Reimbursement Action Plan to ensure that patients do not face financial barriers when accessing insured surgical abortion services.
• New Brunswick will continue to be subject to Canada Health Transfer deductions as long as the province refuses to cover insured surgical abortion services provided at private clinics, resulting in patient charges.

IF PRESSED ON THE SEXUAL AND REPRODUCTIVE HEALTH FUND…
• This Government is committed to making sexual and reproductive health services more accessible, with an emphasis on populations experiencing the highest risks and greatest barriers, including Indigenous people, racialized populations, members of 2SLGBTQI+ communities, women and youth. That is why Budget 2021 committed $45 million over three years, directed to community-based organizations that help to improve access to sexual and reproductive health care support, information, and services for people in Canada who face the greatest barriers to access.

Health Canada’s top priority is to protect the health and safety of people in Canada, including women who choose to end their pregnancy. The Government of Canada unequivocally supports the right to choose, and works to ensure that safe and legal abortion services are available to everyone. Abortion services are deemed medically necessary and are insured in all provinces and territories. Individuals should not face charges when seeking these insured services, regardless of where the services are provided.

The Canada Health Act establishes criteria and conditions related to insured health services and extended health care services that the provinces and territories must fulfill to receive the full federal cash contribution under the Canada Health Transfer (CHT). The aim of the Act is to ensure that all eligible residents of Canadian provinces and territories have reasonable access to medically necessary hospital, physician, and surgical-dental services that require a hospital setting on a prepaid basis, without charges related to the provision of insured health care services.

Roe v. Wade
On June 24, 2022, the US Supreme Court overturned Roe v. Wade. This decision repealed the US federal constitutional protection for abortion services and now defers to the individual states to regulate abortion services.

The overturning of Roe v. Wade has galvanized the discussion about access to abortion in Canada as well as questions surrounding Americans from states with restrictive abortion laws crossing border to access abortion services in Canada and possible implications for Canadian providers. Similar to other health care services, Americans coming to Canada would be able to obtain safe abortion care in Canada, but would have to pay for the service out-of-pocket. Media articles have reported an increase in phone enquiries from Americans seeking information since the decision, but no increase in the booking of appointments.

Access to Abortion in New Brunswick
In New Brunswick, Regulation 84-20 of the Medical Services Payment Act limits coverage of surgical abortion services to approved hospitals (three NB hospitals currently offer the service – two in Moncton and one in Bathurst). This means that individuals who receive these services at the private clinic in Fredericton are required to pay out-of-pocket. New Brunswick is the only province with a private abortion clinic (Clinic 554) where the province does not provide coverage for services. Patient charges for abortion services received in private clinics are considered user charges under the Canada Health Act and raise concerns under the accessibility and comprehensiveness criteria of the Act. Since March 2020, deductions totaling $269,916 have been levied against the NB’s Canada Health Transfer (CHT) payments in respect of patient charges for surgical abortion services. The lack of coverage for abortions performed in private clinics has been discussed bilaterally with NB since 1995, without resolution. Currently, Clinic 554 appears to be operating one day per week, offering only surgical abortion services.

On January 6, 2021, the Canadian Civil Liberties Association (CCLA) filed a statement of claim in the NB courts, as part of a Charter challenge against NB’s restrictive Regulation 84-20. The Association was granted standing in the case by the NB Court of Queen’s bench on June 2, 2021. The group argues that the regulation is inconsistent with and in violation of the Canada Health Act. The Association had previously advised the province it would take legal action if the regulation was not amended to permit coverage for abortion services received outside hospitals. The province filed their Statement of Defence on July 2, 2021, which denied many of the CCLA’s allegations and indicated that Regulation 84-20 does not violate the Canada Health Act.

The case is currently in the discovery phase and the CCLA is awaiting information from the province, which was requested in January 2022. The CCLA has stated that if the information is not provided in a timely matter they may bring forward a motion for the Court to compel the information. To date, no trial date has been set. Following the overturn of Roe v. Wade, the CCLA wrote to the NB Government to reiterate their position.

Access to Abortion in Ontario
In summer 2019, media stories in Ontario revealed fees charged to individuals to access surgical abortion services in some private clinics. Health Canada followed up on these reports by analyzing clinic websites, and by making phone or email inquiries to clinics of concern. While the Ontario Health Insurance Plan provides coverage for physicians' fees related to abortion services in all private clinics, the province only covers facility fees in the four private abortion clinics licensed as Independent Health Facilities (IHF). Evidence gathered confirmed that some private non-IHF abortion clinics charged fees for uninsured services, while not consistently informing patients these fees were optional, with respect to accessing insured surgical abortion services.

When the Ontario Health Ministry conducted further investigations the patient charges discovered were reported to Health Canada. These charges formed the basis of Ontario’s March 2021 and March 2022 deductions (totaling $20,465). In December 2021, Ontario submitted a Reimbursement Action Plan to Health Canada, and has committed to revisit the current framework for the funding of insured surgical abortion services in the province. Health Canada continues to engage with Ontario as it works to implement its action plan and eliminate patient charges for access to abortion services and the province will provide an updated status report in the coming months, which will be published in the Canada Health Act Annual Report for 2021-2022.

Under the Canada Health Act Reimbursement Policy, which came into effect in 2018, provinces and territories that face mandatory deductions have the opportunity to be reimbursed if they work with Health Canada to develop a plan to eliminate patient charges for medically necessary services, and the circumstances that led to them. The plan must be successfully implemented within a specified timeframe (under the Reimbursement Policy, and as outlined in Section 25.01 of the Federal-Provincial Fiscal Arrangements Act, a province has up to two years from the date of a deduction to be reimbursed).

Additional Federal Initiatives with Respect to Sexual and Reproductive Health
Health Canada’s Sexual and Reproductive Health Fund is advancing work nationwide to increase access to sexual and reproductive health. Budget 2021 committed $45 million over three years, starting in 2021-2022, to improve access to sexual and reproductive health care support, information, and services for people in Canada who face the greatest barriers to access.

Health Canada has announced more than $3.5 million in funding for two projects, coming out of the Sexual and Reproductive Health Fund. These projects will improve access by removing barriers to vital abortion services, including financial assistance for those travelling for abortion services, and offering accurate reproductive health information to Canadians.

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