 So welcome to the third installment in this year's Health Law and Policy Seminar Series. I'm Sheila Wildman, Associate Director of the Health Law Institute. And it's my pleasure today to introduce our speaker, Dr. Hula Hughes. Dr. Hughes has been with the faculty of law at the University of New Brunswick since 2006. There she teaches criminal law and procedure, labor law, and jurisprudence. Before joining UNB, she practiced labor, employment, and human rights law with a focus on pay equity and taught at the University of Ottawa and Queen's Law School. Her work as counsel has included appearances before the Supreme Court of Canada and federal court of appeal. Prior to her call to the bar, Hula clerked for justice Ian Vinnie of the Supreme Court of Canada. Hula's research interests and published research is very diverse. And rich, encompassing human rights law, comparative constitutional law, criminal law, access to justice, and administrative justice. Much of her writing, as well as activism, has been dedicated to feminist advocacy, in particular in the area of reproductive justice, which we'll hear more about today. She addresses the frustratingly timely, untimely topic of access to abortion in the maritime. So we're very lucky to have Hula with us today to address this important ongoing social justice challenge. Hula. Hula, thank you so much. And thank you all very much for coming and being interested in a topic that has been preoccupying me a little bit since I arrived in New Brunswick in 2006 and has preoccupied me a lot. Since it became clear earlier this year that the Morgantala Clinic in Fredericton was going to close. I want to take you back to April 17th of this year and imagine you're standing on the lawn of the legislature in Fredericton. There's a whole bunch of protesters out there, ranging in age from about 14 to about 80, protesting the state of abortion law in New Brunswick in 2014. I'm chatting with a woman who's probably about 20 years older than I am, who says, I am outraged, we fought this fight in the 1970s and 80s and we won. We should not be here today. This is not the fight that feminism should be engaged in in 2014. And she felt and so did many that somehow this struggle was untimely business. And there was a strange parallel between that experience and an experience a few months earlier where I was at the clinic and it was a Tuesday morning and it was clinic day and the women who worked at the Morgantala Clinic and I were standing in the front office of the clinic that looks out onto the street and there is a gaggle of protesters out there protesting abortion. And we were joking that between us inside of the office and the folks that are protesting on the other side of the street, none of us could produce a baby if we tried. We were all completely past the age where that was a significant possibility. So both our protest in front of the legislature and the anti-choice protest on the other side of the street had this vague, untimely out of the chronology of advocacy feel to it. In the past few months we've probably seen more advocacy and engagement over the issue of reproductive rights in the province of New Brunswick than we've seen in decades. And included in that has been some national media attention to the struggle in New Brunswick. And some of that media attention has brought about one of the most successful fundraising campaigns to support abortion access in the Maritimes that we've ever seen. But with it also came a set of observations that Maritimes I think are used to to a certain extent which is this allegation that we're just a complete backwater, that we don't get it, that we are retrograde somehow in our approach to women's rights in a country that fundamentally understands itself as being committed to gender equality and being committed to abortion rights. And what I want to do today is actually try and disrupt that national narrative by doing three things. I want to talk a little bit about the state of abortion access in North America broadly speaking. And before I get to that I want to talk about the history that took us to the present situation. And I want to start in the movement towards decriminalization. And for looking around the room for some of us that's actually remembered history and for many of us that has studied history at best or maybe it's a romp into a history you haven't seen before. And secondly I would like to flag some components of what has been the mode of abortion advocacy in this country related to decriminalization and beyond particularly surrounding the two decisions of the Supreme Court of Canada in 1988 and in 1993 in both cases involving Dr. Henry Morgantala. And third and maybe most importantly I would like to get us started on a conversation about where to take the legal analysis and the advocacy for improved reproductive justice. So this is the bitter history part or the fun history part. In the early 70s Simone de Beauvoir publishes in the Nouvelle Observateur a manifesto the manifesto of 343 sluts. And these self-avowed salop or sluts confessed to having had an abortion. And a picture gallery of some of the women who were signatories to the manifesto appear on the front pages and that's what you see in the top right there. This act of self-accusation was mirrored very shortly after in the same year in Germany where 374 women signed a similar manifesto confessing to an abortion. I say confessing because in both cases in France and in Germany this was admitting a criminal offence at the time. I want to highlight a couple of things about these picture galleries that you got as part of the publication of these manifestos. Both the French and the German examples include women across a range of ages and so some of our experiences standing on the lawn of the legislature is actually replicating the experience of the early 70s in Europe. This was an issue that engaged women across a range of ages. They included women depicted as mothers and that was interesting because one of the ongoing complicated conversations are between the fact of abortions for women who are already parenting children and the sort of the stereotype of the woman who is accessing abortion to avoid the responsibilities of parenthood. And they also included a whole lot of celebrities. So in the case of France they included the actress Catherine de Neuve, authors like Maghri Tira, François Sagan and Monique Wittig and other cultural icons of that period. Giselle Halimi who was a well-known lawyer of Tunisian descent was one of the very few non-white contributors to that debate at the time. And the lineup in Germany was equally illustrious but in both cases they also included a lot of rank and file activists. In the places that I've mentioned and in others these political campaigns were highly successful and in part they were highly successful because the message was so relatively simple, get rid of all abortion laws. And they were successful in decriminalizing abortion at the very least typically in the first trimester. And that was true in Canada as well. We see decriminalization coming to Canada in 1969. The Trudeau government amends the criminal code, introduces a method for obtaining a legal and funded abortion through accessing the therapeutic abortion committees. And those committees of course then become problematized in the 1988 Supreme Court case. But I think it's important to remember that they were the result of considerable liberalization of abortion access in this country. Unlike in Europe, North American abortion advocacy has always had a very significant involvement by physicians. So we see the early movement in Canada essentially being led by the then Chief Coroner of Ontario Morton Schulman who started to publish an annual report in which he accounted for the deaths resulting from botched abortions every year and that became a major motivation for abortion law reform. That introduced I think a bit of a tension in abortion advocacy that we haven't quite overcome yet which is the goal of decriminalization in part in many places was to also seek de-stigmatization of abortion and it's probably the one goal that's been the least successful. I think abortion continues to carry enormous stigma despite the fact that we've now had a very long history of decriminalization. And in some ways the European celebrity approach was somewhat suited to de-stigmatization. It was hard to maintain the level of stigma in the face of self accusations from women who were very well recognized. The Canadian experience highlighting botched abortions in some ways is more consistent with stigmatization because it highlights the marginalization of women accessing abortion and so it frames abortion in a different way and it also changes the dynamic between the involvement of doctors and the involvement of patients. We move from the early victories to a period in which we actually see a lot of retrenchment internationally and in Canada. So the therapeutic abortion committees turn out to be not as much of a blessing as might have been hoped because implementation is really uneven across the country. Some hospitals establish committees, others don't. Some hospital committees apply very restrictive standards, others are fairly liberal and this is really in significant response to an anti-choice movement that becomes very well organized and that adopts the pro-life label early on to good success. In Canada we don't get complete decriminalization as you probably know until 1988 but in 1988 there's this great moment of success where we now become a country that becomes known globally as the country that doesn't have an abortion law and that was of course one of the flagship victories of feminist advocacy and rightly celebrated for that fact. At the same time 1988 was a bit of an awkward moment to be winning this particular fight. Internationally as I suggested we'd seen some retrenchment. The move for decriminalization was essentially over and what we're seeing instead is a splitting of the abortion issue in a prohibition component and a funding component and courts and legislatures in a variety of jurisdictions that we might look to for comparators splitting the difference in that particular way upholding decriminalization but accepting as a constitutional limit on abortion restrictions on funding. We see that in the United States through the so-called Hyde Amendment. We see that in Germany as a constitutional compromise and that situation of course is then going to inform also what happens in Canada. So in some ways 1988 was a little bit late. In another way 1988 was a little bit early. It's hard to think of an issue that should resonate more with gender equality than abortion access. But in fact in 1988 equality law in the Supreme Court of Canada is really nowhere. We've only had three years of experience with Section 15 total. The idea of substantive equality doesn't make it to the Supreme Court until 1989 and remains really underdeveloped there for a long time. Some people would argue it continues to the present day to be somewhat underdeveloped. And feminist organizations are not organized really to meet the multiple challenges that come along with this particular set of issues. So we see LEAF for example not intervening in Morgantala either in 1988 or in 1993. The feminist perspective is carried by Dr. Morgantala and by Corral the abortion rights organization. And as you know the equality claim associated with the challenge to the criminal court provisions fail. The fail equality doesn't resonate. What resonates is Section 7 security of the person rights. A highly individualized conceptualization of what abortion access is all about. As a movement I think we own some of that problem. We were not maybe quite ready for the issue in the Supreme Court. The court had also developed its approach to the charter in the first six years since 1982 really in line with the original articulation in the Trudeau era as a liberal rights paradigm that conceptualized rights as essentially being freedoms from state interference. So Trudeau in the proclamation ceremony remarks says, I speak of a country where every person is free to fulfill himself or herself to the utmost unhindered by the arbitrary actions of government. And in that concept there is very little space originally and in its implementation four freedoms that can only be realized under the protection and with the assistance of the state rather than through maintaining an absence of state interference. There's a profound class bias and a profound gender bias in this particular understanding of rights. If you buy all of the latest books the question of whether the public library has enough money is much less on your mind than the question of whether the state maintains a censorship list that makes it difficult for you to buy the books you want to buy. The particular problems that arise with respect to abortion access under a restricted funding model are not terribly visible to people who don't typically rely on state support for services. We know that the interests of women in the state actually differ from those of men and they relate along the same lines that I've just described with a greater interest in governmental services and a lesser interest in absence from interference on average. That's not to suggest that women don't have liberal interests in freedoms. That's just to suggest that the balance between those different sets of rights may be a little shifted. So we get to 1988 and it seems like all is well and as I suggested Canada is being held out as this great jurisdiction where everything is free to go. No longer a criminal law in the Gutmacher Institute which is a big think tank in the US that deals with abortion rights. To this day holds out Canada as this wonderful example of the best form of law. Well and then we get to the Maritimes and I know there's wicked too much text on these slides and it's more for me to remember what I wanted to tell you about then for you to necessarily look at. But one of the challenges that arises in the wake of 1988 is that the provinces get into the game of regulation almost immediately as the feds are forced out of it. And unlike the feds who only had one voice to speak with and who could be challenged in one forum each province takes a slightly different approach and every challenge has to be replicated in slightly different ways in each of those provincial settings. And I'm just going to go through and tell you a little bit about the three Maritime provinces and the approach that they took. So in Nova Scotia we see the passing of regulations that prohibit abortions to be carried out outside of a hospital and also regulations that restrict funding for non-hospital based abortions. The initial regulations then become transposed into legislation fairly soon thereafter because there's rumblings in New Brunswick that regulations may not actually do the trick. And in 1990 when the Morgantala Clinic opens here in Halifax there is almost immediately a set of prosecutions initiated under that new law against Dr. Morgantala and he has an opportunity in the course of that prosecution to challenge these new laws that were enacted and the regulations under them. And in October of 1990 so within the same year those laws are struck down at first instance and that is ultimately upheld in the Supreme Court of Canada in 1993 so that becomes the Morgantala 1993 decision. But in fact the Nova Scotia courts had done that work as early as 1990. That in Nova Scotia pretty much clears the deck and allows the clinic to operate and to provide a funded service. But I want to flag that despite that in 2003 the clinic here closes and the official line is that it closes because the hospitals are offering the service and there's no need. But the back story to that is that it was just not a viable business because the funding that was provided was the funding for a very narrow slice only which is the physician's time. There was no funding unlike in Ontario. There was no funding for clinic security. There was no funding for counseling. There was no funding for the premises, any of that stuff. New Brunswick, slightly different story. I love this picture. I don't know whether you can see very well but it's like the ultimate Canadian protest standing on a snow bank. This is earlier this year. So in New Brunswick we get immediate regulation of the funding piece but we don't get new legislation that restricts the provision of services in hospitals because guess what? We don't need that. We already have that in New Brunswick at the time under a quaint statute called the Medical Act. And the Medical Act was a private statute that set up the College of Physicians and Surgeons and it was under that statute that there was a prohibition against non-hospital-based abortions. And when the Morgan-Toller Clinic opens in the province in 1994 there's no funding under the public statute and there is all these rules about funded abortions in the public regulations but there's also the prohibition under that private act and it's under the private act that a prosecution is brought by the College rather than under the enforcement of a public statute. And in defending that set of prosecutions, Dr. Morgan-Toller isn't able to challenge the constitutionality of the funding piece. He's only able to challenge the prohibition piece. So even though the Supreme Court of Canada in 1993 struck down in the Nova Scotia case both the funding and the prohibition component of the Nova Scotia law that precedent doesn't track in New Brunswick because of the slightly different way in which the prosecutions are initialized. Dr. Morgan-Toller had also initially won a case in New Brunswick requiring the province to pay for abortions provided to New Brunswick women in the Montreal Clinic and even though he won that case the province just didn't pay. So initially it didn't seem like a good plan to spend more money on litigation pursuing the province on the funding piece given that it was reasonable to assume that there would be non-compliance. Dr. Morgan-Toller has another kick at that can starting in 2002 so he brings suit to challenge the funding regulations and he initiates with that a standing battle to end all standing battles. The province fights the claim hard not on the merits because within the Department of Justice it was perfectly understood that this legislation was unconstitutional but they fight it on the assertion that it requires a pregnant woman seeking to access abortion rather than a physician to actually challenge the regulation that is about physician funding so it's a little confusing but it takes until 2009 for the New Brunswick Court of Appeal to confirm that Dr. Morgan-Toller did in fact have standing by that time he spent almost a million dollars on legals and the litigation comes to an end because of both funding issues and because he's now a very old man. So the clinic for the entire time between 1994 and this year operated as a private fee-for-service clinic and women had to pay in order to access services there at least that was the official story the inofficial story was that women in fact were funded but by Dr. Morgan-Toller personally if they couldn't pay and that gets us to Prince Edward Island and my personal hero Colleen McQuarrie who's been doing fantastic research on the island about the experience with the lack of abortion services on the island rather depressing research but very important so PEI takes a slightly different approach to this whole phenomenon again and in 2014 they say we have a policy and we know what it is but we're not going to tell you and that sounds strange except that it follows exactly what they did in 1988 when they told Dr. Morgan-Toller when he was first sort of making noises about maybe providing abortions to PEI women that they wouldn't pay because they have a policy that they wouldn't pay and it takes Dr. Morgan-Toller correspondence over the following six years to actually get answers to what the policy really says but eventually he gets a letter and the letter says that it will only pay the province will only pay for an abortion deemed to be a medical necessity provided that the abortion is performed at a hospital so far so unsurprising. The determination of whether an abortion is a medical necessity for payment purposes is determined by a medical advisory committee of five doctors provided for under the Health Services Payment Act and appointed by the agency. Does that sound familiar to anybody? Does that not look somewhat like the scheme we thought we had found unconstitutional in 1988? It looks like that to me. Anyway, that's what happened. We had this policy and Dr. Morgan-Toller challenges the policy in the Prince Edward Island courts and on the eve of the hearing the province converts the unwritten policy into a regulation through executive council order and so the hearing is off because all the legal work that has been done to challenge this phantasma of a regulation now is worth nothing because we now have an actual regulation to challenge. So that's in fact what happens and the PEI court in first instance allows the application and strikes down the regulation consistent with I think the Supreme Court of Canada decision in 1993 but then in a decision that I thought about but I will invite your help on this can't quite make work with the precedent from the Supreme Court of Canada the Prince Edward Island Court of Appeal allows the appeal and says that it is in fact constitutional for PEI to have this regulation restricting funding. The bottom line is that there is no abortion care on the island but through political mechanisms there is now a policy of reciprocal billing not between Nova Scotia as a province and the province of PEI but between the province of PEI and the TPU here in Halifax the termination of pregnancy unit. So that is an agreement that allows PEI women to have a funded abortion here in Halifax but only if they have a referral by a PEI doctor and that turns out to be a complex task I probably don't have to say much more about that so that's sort of the federalism piece if you like of abortion litigation, post-decriminalization but what's happening in Canada in some ways parallels what's happening in other places in North America in that we get this split between a community of people who benefited from decriminalization because funding the service was not a problem for them and a community of people for whom that is the key problem and who are seeing that the advocacy that went into the decriminalization is not being backed up by an advocacy movement that challenges the funding restrictions. In the US this has given rise to an extremely hostile situation of people saying two things one, white middle class women should get out of the business of abortion advocacy because they simply don't understand what it's really about and secondly, lawyers in particular should get out of the way because this is a political issue that affects racialized communities predominantly and that is being advanced under the label of reproductive justice and in Canada we're seeing an interesting and I think highly Canadian way of absorbing some of the ideas of reproductive justice but in a manner that seems much less hostile and in which the role of lawyers I think is at the moment still kept fairly open so we have maybe this golden six months or so to redeem ourselves. So this is the new face, right? The new face of reproductive justice advocacy is racially diverse, is focused on access and is fundamentally fairly uninterested in law. Think about where we go with all of that so this is a picture from the US. Essential elements of reproductive justice advocacy replacing the paradigm of pro-choice advocacy is that it invites a much broader conceptualization of reproductive rights. Looking not just at abortion access but looking at for example the right to parent recognizing that for economically marginalized people that has been the overwhelming issue. Engagement with child protection agencies deprivation of the right to parent and stigmatization of the choice to parent under the welfare queen set of labels. I think in Canada we can do interesting solidarity work when we think about our first peoples and the way in which the state has consistently interfered with the right of first peoples to parent their own children. The second essential component of this movement of reproductive justice is to think about access. We're really inheriting a fundamental principle of feminist advocacy over the years which is that we have to pay attention to what's actually happening in peoples lives. And what's happening in peoples lives is that despite the fact that we don't have prohibiting laws we still don't have good access and many of the reasons for the lack of access are economic. We have a new focus on intersectionality and this is one of the ways in which the fact that we're not in 1988 and that our equality law toolbox has really grown quite a bit is going to come in a very helpful manner. Intersectionality is a really helpful tool for understanding how reproductive justice interacts with racialization, how it interacts with people in the trans rights movement, how it interacts with notions of indigeneity and parenting access, all of those kinds of things become really important. And a focus on advocacy that is really interested in impact rather than theory I suppose. So if we were to rethink our advocacy in these kinds of terms what would that actually mean if we think law has anything to contribute going forward? That's sort of the last question I want to address. So can we think about reproductive justice in terms that remains alert to these other components of reproductive choices that people make? The pro-choice movement has been conspicuously absent from the struggle of indigenous people trying to parent their own children. We've been absent from the whole discussion about adoption. We've been absent from the discussion about access to contraception because guess what? Most of us as we're sitting in this room either have student insurance coverage or we are employed in some way that gives us pharma care. We have paid very little attention to the plight of those people who can't afford access to contraception. One of the challenging pieces at least to me because as I told you before I'm an old person is that we really have to rethink some of our feminisms in all of this. Abortion rights has always seemed sort of fairly safely essentialist. It was probably the one place where we felt that the femaleness of the body and the femininity of our gender come together in a pretty meaningful way. And now in this reproductive justice movement we're seeing that notion challenged by female to male trans people who say we're part of this movement. We have a stake in an interest in reproductive justice and our issues may include abortion issues but they probably include things like forced sterilization schemes and they probably include immutability concerns. Can we make space for that in our advocacy? I think that's going to turn out to be a really important challenge and one where the movement has the potential to be split along very strong generational lines and so I think there's work that needs to be done. A small way of illustrating some of the difficulties is when we had a postcard campaign in Fredericton earlier this year we wanted to use Henry Morgantala's lovely quote about every mother, a willing mother, every child, a wanted child on our postcards. And old farts like me thought that was a great idea and every person in their 20s in the room said can we replace mother with parent? And all the old folks went no! Don't you remember Trumbland Daigle? Don't you remember what that means when we start talking about parents? What we really mean is inviting the boyfriend into the conversation. No good can come of it. So we're going to somehow have to reconcile the fact that we clearly do not and I just point to the social media disaster of the past week clearly do not live in a post-feminist society with the fact that we now have a significant trans community that is laying what seems to be a fairly valid claim to an interest in reproductive justice. And I don't think we've thought that one through and certainly I haven't thought that one through but I think this is going to be a major task for us. And lastly I think there's a very considerable concern about developing a theory of rights particularly equality rights that somehow makes a space for socioeconomic rights and somehow makes a space for protective rights while addressing the perennial concern of our courts and particularly the Supreme Court of Canada that we do not allow equality rights to essentially rewrite our entire legal system in a completely unpredictable way. There's a lot of theoretical work that will need to be done to accomplish those tasks. An additional layer to this challenge ought to have become clear when I talked about the versions of regulation in the various provinces and that is the layer of the interaction between equality rights and federalism. It was really fantastically interesting to see that in 1988 and in 1993 the equality concerns that were articulated were essentially inter-provincial equalities and we never got any traction on that and not surprisingly because actually it's hard to advance a theory of the charter that says the charter means that we can't have working federalism that we can't have provincial differences. That's not a sellable item and the courts have been very consistent in rejecting that vision of the charter and appropriately so because we continue to also be a federal state. But we need to therefore be able to articulate a theory of equality under the charter that is respectful of federalism on the one hand and that engages with the intersectional piece that I talked about earlier. So somehow we're going to have to make a shift in our thinking about equality from talking about New Brunswick is really bad and Ontario is really good and women in New Brunswick ought to have the same rights as people in Ontario which is still the dominant discourse to figuring out how we can talk about rights in ways that actually give meaning to section 15 while being respectful of our federalist commitments. I think we are going to have to rethink the interaction between physician advocacy and legal advocacy particularly because the contest between clinic-based abortions and hospital-based abortions takes us down a path of fighting for the protection of public Medicare with one arm and fighting against the protection of public, against the curbing of private healthcare on the other. We're taking inconsistent positions within our own advocacy. But there's a second problem with this which is a change in the way abortions are being provided globally. We're seeing a lot more medical abortions by which I mean pharmaceutically induced abortions and that doesn't track the clinic-hospital divide and it may not even track the physician-provided abortion because we're seeing a lot more safe self-inducement. And as a movement I think we're going to have to figure out whether we're going to continue the current discourse of saying self-inducement is always horrible and the wrong thing to do to figuring out whether there isn't a role for self-inducement in many cases and what are the kinds of care models that will work with that global reality, the global reality that even now in 2014, despite the fact that we haven't actually legalized it, you can get abortion drugs on the internet and women are self-inducing. But there's not terribly good information about that. So we're seeing two problems. One is that women are using methods of self-inducement that are not safe when there are in fact methods out there that are safe and the other problem is that we have very uneven distribution of information and we're using scare tactics within the movement of reproductive rights to steer people away from something that may actually turn out to be extremely helpful in getting broader access. The motto of the protests in New Brunswick this year has been we have the law, we need the access. And that's a lovely slogan because I think it reduces to a level of simplicity what are in fact some fairly complex legal claims. The question that I think is open in this sort of space is whether we do in fact have all the law that we need and whether we have the absence of all the laws that we need to be absent in order to have access. And that's going to be the challenge going forward. Thank you very much. I think the opportunity to... Thank you. Let me just, before that, announce our next seminar coming in the series. It's Friday, November 21st. And we have Jennifer Chandler coming. Her title is Rains on Trial, Neuroscientific Evidence in Canadian Criminal Cases. So thank you. You love for your reaching. Let's put it at least the way I'm experiencing it. Thanks, you look for your richly textured lecture ranging so expertly from concrete on the ground insights about social facts as well as institutional practices here in the Maritime Ambient Month but also to theoretical and strategic insights about next steps. So with that, thank you.