No legal barrier to abortion on P.E.I.

It's been 25 years since the Supreme Court of Canada struck down the law that made most abortions illegal in Canada, and about 30 years since the last legal abortion was performed on Prince Edward Island.

Health PEI recently cut off an approval process for a clinic on the Island, saying such a clinic is not in line with government policies.

Dr. Richard Wedge, the CEO of Health PEI, noted in 2011, when he was executive director of medical affairs, there was nothing in law or regulation that prevents such a clinic from being established.

"If a physician applied for privileges to do abortions on P.E.I., and they had the skills, the training necessary to do it, then they could get privileges for that on P.E.I.," said Wedge.

"The Supreme Court has said that access to legal abortions is a medically necessary service. So you can't legislate against it, because the Supreme Court would just strike it down If someone has the skills to provide a medically necessary service, then what basis would you have to deny it?"

No legislative impediment

In 2011, Wedge maintained there was no legislative or regulatory impediment that prevented abortions from being performed in Island hospitals. There is a billing code for abortions and similar procedures, meaning a doctor performing one could be paid by the province.

CBC News has asked the P.E.I. Department of Health and Wellness for a copy of government's current abortion policy, but the department has not responded to those requests.

One of the few mentions of the issue in current P.E.I. legislation can be found in the regulations attached to the Health Services Payment Act. It defines as a basic health service "services provided in respect of termination of pregnancy performed in a hospital when the condition of the patient is such that the service is determined by the Minister to be medically required."

P.E.I. was challenged in court in the 1990s by abortion rights activist Dr. Henry Morgentaler. He initially succeeded in his case to force P.E.I. to pay for abortions performed in a private clinic. The province later had that decision overturned on appeal. To date, P.E.I. and New Brunswick are the only provinces which do not pay for abortions performed in private clinics, only those performed in hospitals.

Requires two signatures

Current protocol on P.E.I. requires two doctors to provide referrals for a woman who seeks to have an abortion in-hospital.

The first would be the woman's family doctor or any other doctor who's willing to provide the referral. Wedge said a referral cannot be denied on medical grounds, since abortion has been recognized as a necessary medical procedure. Doctors may, however, try to counsel their patients as to whether an abortion is appropriate. They can refuse to provide a referral on ethical or religious grounds.

The second referral is from a doctor working behind-the-scenes, overseeing all off-Island surgeries. There's no need for a woman to meet this doctor, and Wedge says he's not aware of a woman seeking an abortion ever being denied this second referral.

In 2011 the P.E.I. Medical Society asked the Department of Health to provide clarification for Island doctors in regards to what they're required to do when a woman asks for a referral to have an abortion. Wedge said not all doctors may be aware of what options are currently available for abortions performed off-Island.

A doctor speaking on condition of anonymity told the CBC women are also often in the dark as to what services are available and what their options are, and that the province needs to improve its communication in that regard.

The Canadian Civil Liberties Association has asked Health Minister Doug Currie to remove the condition requiring a doctor's referral before providing funding for an out-of-province abortion.

"Setting up procedural barriers, such as requiring doctors' referrals in advance of such a time-sensitive medical procedure, is prohibitive and discriminatory," the association wrote in a letter to the minister this month.

Women pay for more abortions than does province

Island women seeking an abortion are currently sent either to the Queen Elizabeth II Hospital in Halifax, in which case their costs will be paid by the province, or to the private Morgentaler Clinic in Fredericton, where they pay for the procedure themselves.

From 2006-10, an average of 65 Island women were sent to the QE2 every year. Over that time the provincial health department paid $310,361 for the procedures, or an average of $961 per abortion.

The private Morgentaler Clinic in Fredericton says it typically sees 70-80 Island women per year. From Jan. 1 to Nov. 22, 2011, the number was 73. Most women pay $700 for an abortion at the clinic, although it can cost up to $850 depending on how far along a woman is in her pregnancy.

Wedge was surprised to learn more Island women end up paying for a private abortion than havethe procedure done for free in hospital. The manager of the Fredericton clinic, Simone Leibovitch, said there are several reasons.

"I don't think necessarily they choose to come here, because I think the care at the QE2 is excellent," said Leibovitch

"I think they get in sooner here. They also don't need a referral. What that means is nobody needs to know that they're coming here."

Leibovitch said some Island women don't have a family doctor and can't get a referral that way. Others are refused.

The clinic recommends women see a doctor three to four weeks after their abortion for a follow-up check. Many women don't want to see their family doctor for that check-up. The clinic refers them to a small group of P.E.I. doctors who provide the service.

In April 2014 theMorgentalerClinic in Fredericton announced it would be closing at the end of July.

Why aren't abortions performed on P.E.I.?

An abortion is a basic medical procedure. Obstetricians, of which P.E.I. has eight, are trained to perform them as part of their course of instruction. Across Canada, general practitioners also perform abortions, requiring only a few weeks of training to be qualified. IN 2011 Health PEI said no doctor had ever applied for privileges to perform abortions and been denied.

Island hospitals already have the equipment needed to perform abortions, which is the same equipment used in a number of similar procedures which are already done on P.E.I.

So if there is no legislation or policy preventing abortions on P.E.I., why aren't they performed here?

Consider this: the P.E.I. Medical Society, which represents Island doctors, refuses to speak on the subject of abortion, referring all inquiries to apolicy statement issued by the Canadian Medical Association.

One doctor who spoke to the CBC on condition of anonymity said support staff would be required for any doctor performing abortions on P.E.I., similar to those who work at the Fredericton clinic: nurses to assist in operation, post-operation, and to provide ultrasound images. A counsellor would also be required.

The doctor suggested the province might not be willing to provide the logistic support necessary for the procedure to be performed on the Island.

The doctor said regardless of how he felt about a woman's right to access a safe abortion on P.E.I., that he certainly would not be the one to try to start providing them.

"I don't want to see signs on my lawn when I go home at night," he said, expecting an outcry from anti-abortion activists against any doctor who provides this procedure on P.E.I.

"I'd be concerned for my family, worried about my kids."

"I think it's difficult in small communities for doctors to be public about the fact they do abortions," said Leibovitch.

A pro-life group is set up next door to the Morgentaler Clinic in Fredericton, and Leibovitch said protesters appear on a weekly basis.

"I don't think it's necessarily a safe atmosphere for doctors," she said.

"I can understand a doctor not wanting to have to face getting letters from these people or having their reputation besmirched by these people. I think that's happened to doctors all across Canada."

The doctor said despite the lack of legal barriers to providing abortions on P.E.I., he didn't expect to see it happen in his lifetime.