Drifting Apart: the Evolution of Contemporary Abortion Policies across Canada by Jake Kiefer A Thesis presented to The University of Guelph In partial fulfilment of requirements for the degree of Master of Arts in Political Science Guelph, Ontario, Canada © Jake Kiefer, July, 2012 Abstract This thesis takes an innovative approach to examining health care policy by applying the concept of policy drift to the issue of access to abortion across Canada through analyzing three explanations: the structure of Canadian federalism, women’s organizations, and rights litigation. The Supreme Court of Canada ruled that section 251 of the Criminal Code of Canada was unconstitutional in R v. Morgentaler (1988). Section 251 forced women to secure the approval of a panel of medical experts in order to gain legal consent to seek an abortion. As a result of this decision, women are now able to undergo a therapeutic abortion procedure without facing criminal sanctions. However, the issue of equitable access to abortion services across Canada is still unresolved. For example, women living in Prince Edward Island have to travel out of province at their own expense to undergo an abortion procedure. Meanwhile, women in Ontario are able to undergo an abortion procedure at a number of hospitals and private clinics with provincial insurance subsidizing the financial burdens. Abortion is a time-sensitive procedure and different from other health care procedures because it is also gender-sensitive. Findings within this thesis suggest that the model of Canadian federalism contributes to the inability of women’s organizations to gain audience from the federal government and inhibits the courts from assisting in expanding provincial access, which further facilitates policy drift. Recognizing policy drift concerning access to abortion is significant because it is an issue that involves gender equity at its core as well as discussions over what society deems is a right and what society deems is fair. Acknowledgements The process of writing this thesis on access to abortion has been one of the most difficult, but rewarding experiences of my life. For as long as I can remember I have prioritized education above all else and it is extremely inspiring to finally be able to offer a contribution back to society to repay the gracious opportunities provided to me by the University of Guelph. Guelph truly is one of the best communities a student could hope to undertake their studies. However, I would not have been able to complete this project without a tremendous amount of help and support from some of the most wonderful people in the world (and who I have drawn inspiration from over the years) including my friends (Tim, Justin, Andrew, Tristan, and John); my family (Mom and Dad; Kara and Rob); and my thesis committee (Professor Julie Simmons and Professor Byron Sheldrick). Finally, I would like to offer a special acknowledgement to my advisor, Professor Candace Johnson, who worked tirelessly to help me cultivate this project over the last year and a half. “It is in fact a part of the function of education to help us escape, not from our own time — for we are bound by that — but from the intellectual and emotional limitations of our time.” -T.S. Eliot iii Table of Contents Abstract ........................................................................................................................................................ ii Acknowledgements ..................................................................................................................................... iii Introduction .................................................................................................................................................. 1 Chapter one: The Institutional Structure of Canadian Federalism ...................................................... 10 An Introduction to Federalism and Drift ..................................................................................................... 10 Health Care as a Provincial and Federal Jurisdiction .................................................................................. 14 Ideology, Federalism, & Drift ...................................................................................................................... 18 Health Care Structure & Drift...................................................................................................................... 20 Women’s Perspectives, Fundamental Justice & Drift ................................................................................. 26 Bi-lateral Discussions & Drift....................................................................................................................... 30 A Return to Federalism & Drift ................................................................................................................... 37 Chapter Two: Women’s Organizations ...................................................................................................... 40 Women’s Organizations as an Explanation for Drift ................................................................................... 40 Overcome with Artificial Reproductive Technologies (ARTs) ..................................................................... 43 Women’s Organizations and Abortion........................................................................................................ 53 Responsiveness of the Federal Government .............................................................................................. 59 Advocacy leading to Policy Drift ................................................................................................................. 65 Chapter Three: Right’s Litigation ............................................................................................................... 67 Rights Litigation as an Explanation for Policy Drift ..................................................................................... 67 Rights .......................................................................................................................................................... 69 The Charter of Rights and Freedoms .......................................................................................................... 73 Court Decisions ........................................................................................................................................... 80 Legal Cases, Rights & Drift .......................................................................................................................... 85 Conclusion .................................................................................................................................................. 90 Bibliography................................................................................................................................................ 98 iv Introduction The existing abortion policy landscape in Canada is dramatically different from one province to the next. The Supreme Court of Canada ruled more than two decades ago that it was unconstitutional for Canadian law to require a woman to gain approval from a panel of health care professionals prior to obtaining an abortion. Nonetheless, the federal government did not create a national policy on abortion and left the decision to each provincial legislature as the Constitution Act of 1867 grants health care jurisdiction to provinces. As such, there exists a great deal of variance in contemporary abortion policy across Canada. In provinces like Ontario and British Colombia, there are a number of public and private facilities offering abortion procedures and the government lists the service as one that must be subsidized by the respective provincial public health care systems. However, in other provinces, such as P.E.I., there exists no provincially or privately-run facilities that provide abortion services. The policy vacuum in the absence of federal abortion legislation after the 1988 Supreme Court decision has spawned a confusing patchwork of access to abortion for women across Canada. This patchwork hampers women’s ability to gain equal access to a health care service that is unique to women as is the capacity to give birth. Given that the issue of abortion is gender specific and time sensitive (doctors will not perform abortions in Canada beyond a gestation limit of 21 weeks or 23 weeks in instances of imminent maternal health threats), it seems illogical and inequitable that a woman in Ontario would be able to have readily available 1 access to abortion services while a woman in Prince Edward Island faces restrictions and barriers. This thesis argues that this patchwork of services is attributable to the absence of federal policy and the resultant policy ‘drift’ in this area. Utilizing drift in Canada as a lens for analysis is an innovative approach concerning health care issues, such as abortion, because policy drift is a concept that has traditionally been associated with American policy analysis.1 Jacob Hacker defines drift as, “changes in the operation or effect of policies that occur without significant changes in those policies’ structure.”2 In essence, the policy itself may not change in any significant way, but the impact or consequences felt by recipient groups of the policy do change over time. Jones and Baumgartner, define drift slightly differently: “when many small factors impinge on the course of public policy, the result will be an incremental pattern of change often characterized by policy scholars as ‘policy drift’.”3 Streeck and Thelen argue that, “since drift is an informal process that may have serious societal consequences, it may explain the paradox of change as experienced by a popular social program in the absence of formal decisions; otherwise known as ‘change without change.’”4 Streeck and Thelen’s characterization of policy drift clarifies how a policy may come to differently impact a portion of the population without significant change to the language and structure of the original policy. 1 Jacob Hacker. “Policy Drift: The Hidden Politics of US Welfare State Retrenchment.” In The Hidden Politics of US Welfare State Retrenchment. In Beyond Continuity: Institutional Change in Advanced Political Economies. Edited by Wolfgang Streeck and Kathleen Thelen. (Oxford: Oxford University Press, 2005). P. 41. 2 Jacob Hacker. “Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States,” The American Political Science Review 98 (2), 2004. p. 243. 3 Bryan Jones and Frank Baumgartner. “The politics of attention: how government prioritizes problems.” (Chicago: University of Chicago, 2005). Pp.119-120. 4 Wolfgang Streeck and Kathleen Thelen. The Hidden Politics of US Welfare State Retrenchment. In Beyond Continuity: Institutional Change in Advanced Political Economies. (Oxford: Oxford University Press, 2005). P.14. 2 Thus, looking at the issue of abortion policy in Canada, one may observe a certain degree of ‘drift’ occurring after the Supreme Court ruled that section 251 of the Criminal Code of Canada contravened constitutional rights. This decision struck down the legal requirement that a woman gain consent from a panel of three doctors before qualifying as a viable candidate for an abortion procedure. The Supreme Court of Canada ruled that this requirement infringed on a woman’s fundamental rights, under section 7 of the Charter of Rights and Freedoms (the right to life, liberty, and security) to maintain control over her own reproductive capacity. But, the Supreme Court decision left a policy vacuum concerning specific legislation regulating equitable access to abortion across Canada. It also spawned further debate over health care as an entrenched right. Jacob Hacker suggests that, “an appealing option that can facilitate the achievement of the same policy goals for a government, without negative political repercussions, is to permit policy drift.”5 When provinces like New Brunswick or Prince Edward Island intentionally chose to largely ignore the absence of certain kinds of health services (like abortion) in their jurisdictions, the political consequences are limited for the federal government as the decisions appear to exceed the capabilities of the federal government to act. Hacker’s assessment of the intentionality associated with drift is significant because it provides a distinction from the phenomenon of incremental-policy-change and provides another reason for analyzing abortion policy through a lens of policy drift. The absence of federal policy has created intentional opportunities for drift and neglect by both the federal and provincial governments. Despite the existence of health care as a provincial jurisdiction, policy drift 5 Jacob Hacker. The Hidden Politics of US Welfare State Retrenchment. In Beyond Continuity: Institutional Change in Advanced Political Economies. Ed. By Wolfgang Streeck and Kathleen Thelen. (Oxford: Oxford University Press, 2005). P.24. 3 concerning access to abortion seems to be occurring at the federal level of government as well. The federal government no longer engages provinces in discussion concerning their non- compliance with the Canada Health Act – in this case limited access to abortion services – and a lack of funding to women’s organizations has further subverted the issue of abortion. The unwillingness of the federal government to aggressively pursue provinces in non-compliance with the Canada Health Act and demonstrate consistent fiscal support for women’s organizations diminishes the opportunity for women to voice concerns and experiences concerning abortion procedures. Policy drift concerning access to abortion across Canada seems to be occurring not just at the federal level of government, but in some provinces as well, such as Prince Edward Island and New Brunswick, but not in other provinces like Ontario and British Colombia. This thesis argues that this drift is intentional, but appears inadvertent. Provinces such as New Brunswick and Prince Edward Island claim that budgetary constraints concerning health care limit the capacity to fund or expand access to a variety of health care initiatives, including, but not limited to abortion procedures. Thus, provincial legislatures in New Brunswick and Prince Edward Island seem to be achieving a specific policy outcome concerning abortion by intentionally maintaining the status quo while espousing that such a decision is beyond institutional control and a change in the impact felt by women is inadvertent. This thesis also argues that the inability of various women’s organizations to gain favourable court outcomes in provinces such as New Brunswick seems to reinforce the legislature’s position on maintaining the status quo on abortion policy. Further, New Brunswick and Prince Edward Island governments have actively challenged court cases involving abortion 4 policy indicating an element of intentionality on behalf of the provincial legislatures in Prince Edward Island and New Brunswick to restrict abortion access. In order to gain deeper understanding of the application of drift to abortion policy in Canada, it is important to apply the contributions of Jacob Hacker on the definition of social policy drift. According to Hacker, “the hallmark of change of this sort is that it occurs largely outside the immediate control of policymakers, thus appearing natural or inadvertent.”6 Thus, the change in policy effect and its seemingly organic manifestation implies that there is still a question of key explanations culpable for this drift to address. Again, Hacker makes the significant argument that while active initiatives to reduce the coverage of social policies are unsuccessful, it is comparatively simple to block the adaptation of existing policies.7 Heclo demonstrated this line of arguing as well by suggesting, “the easiest way to change a policy is to fail to a change a program to accord with the movement of events.”8 Subsequently, Hacker asserts that the questions for policymakers become whether or not and how to address the growing gap between intent and reality concerning the creation of public policy. Abortion in Canada reflects this dispute between intent and reality as evidenced by the gap between the intended reasoning for Parliament choosing not to pursue further criminal sanctions and social reality concerning a patchwork of abortion services. Perhaps, following the Supreme Court decision in 1988, the federal government could have immediately started a campaign to secure compliance with the Canada Health Act provision of equality while emphasizing abortion as a unique case because of gender and time sensitivity. 6 Hacker, 2004, p. 243. 7 Hacker, 2004, p. 247. 8 Hugh Heclo. Modern social politics in Britain and Sweden: From relief to income maintenance. (New Haven: Yale University Press, 1974). P.211. 5 Lastly, Hacker points-out that policy drift typically occurs when there has been insufficient updating, which facilitates a lack of responsiveness in policy changes that have occurred.9 The evolution of contemporary abortion policies across Canada reflects policy change as well as the impact felt by women in different provinces. However, The Harper Government announced in 2006 that abortion would no longer be a priority discussion with the provinces, which seems to reflect the notion of insufficient updating alluded to by Hacker. In the context of the Harper government’s preferred brand of conservative ideology policy in-action may seem like drift has positive implications for abortion. However, a lack of action from the federal government subverts the issue of access to abortion even further and removes pressure on provinces like New Brunswick and Prince Edward Island from complying with the Canada Health Act. Certainly, one must also address the issue of why abortion procedures pose a case deserving a greater degree of attention when most areas of health care across Canada are a patchwork and represent the same sort of interprovincial variation as evidenced in abortion policy. Abortion policy warrants this type of treatment largely because it is highly gendered and involves the issue of gender equity at its core. The existence of policy drift concerning access to abortion in Canada seems to indicate that abortion has been subverted on the list of priorities for social and political society to discuss. However, abortion remains an issue of gender equity with the capacity to marginalize groups of Canadian women, which merits continued analysis and discussion. The ability to give birth exclusively belongs to a woman, which ought to suggest that women have the ability to choose to give birth or not to give birth. However, the political landscape in Canada reflects a much different reality as many women are marginalized and not 9 Jacob Hacker. “Dismantling the Healthcare State? Political Institutions, Public Policies and the Comparative Politics of Health Reform.” British Journal of Political Science. (34), 2004. Pp. 700-701. 6