The Status of Liberty: How an Abortion Lawsuit Could Upend Charter Rights in Canada

John Sikkema
March 24, 2021
Canada’s Charter of Rights and Freedoms guarantees liberty to all, but neglects to explain what the word really means. Is it the freedom to be left alone, as classical scholars understood it? Or the right to demand that government provide you with the ability to fulfil your own needs and wants, as the progressive definition holds? John Sikkema reports on a case that brings these two competing meanings into sharp conflict – a recent lawsuit against the New Brunswick government that makes bold claims about one of the most contentious issues of our time.

The Status of Liberty: How an Abortion Lawsuit Could Upend Charter Rights in Canada

John Sikkema
March 24, 2021
Canada’s Charter of Rights and Freedoms guarantees liberty to all, but neglects to explain what the word really means. Is it the freedom to be left alone, as classical scholars understood it? Or the right to demand that government provide you with the ability to fulfil your own needs and wants, as the progressive definition holds? John Sikkema reports on a case that brings these two competing meanings into sharp conflict – a recent lawsuit against the New Brunswick government that makes bold claims about one of the most contentious issues of our time.
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The Canadian Civil Liberties Association is suing New Brunswick to make its provincial health insurance plan pay for abortions at private clinics. Clinic 554 in Fredericton, the only private clinic in the province, has been performing abortions for years without penalty, legal impediment or provincial funding. New Brunswick’s policy is to pay for surgical abortions performed in one of the province’s three hospitals, and for pharmaceutical abortions.

In its lawsuit, the CCLA argues that by not paying for surgical abortions at a private clinic, New Brunswick violates New Brunswickers’ “liberty” under the Charter of Rights and Freedoms. Which raises the crucial question: What is the meaning of liberty?

One view, often called the “classical liberal” view, is that liberty entails the absence of outside restraints – that nobody is actively obstructing you from doing what you wish. It is the absence of coercion. As Isaiah Berlin put it in Two Concepts of Liberty, “Coercion implies the deliberate interference of other human beings within the area in which I could otherwise act.”

To the courts: A recent lawsuit by the Canadian Civil Liberties Association demands that New Brunswick fund private abortion clinics.

Another view says that in order to be free, a person must actually be able to obtain what they need or want. Whereas classical liberalism sees the state, with its extensive coercive powers, as the primary threat to liberty, a more “progressive” view of government sees its powers as potentially liberating. What is the point of having the liberty to choose abortion if you can’t afford one? Thus we get the qualifiers negative liberty (absence of intentional interference) and positive liberty (possessing the means to realize your choice).

In this particular instance, the pro-life argument would be that liberty – positive or negative – is not a licence to kill, that abortion kills a human being and, thus, elective abortion lies beyond the bounds of liberty. Liberty does not entail violating others’ rights. But let’s leave aside the question of the moral and legal status of preborn children. It is doubtful that the court will directly tackle that question, because the CCLA does not raise it in its lawsuit and because protecting pre-born human beings as such would fall within the federal government’s jurisdiction.

Rather, the case is about whether there is a Charter right to publicly funded abortion at a private clinic. Stated another way, the case is about whether a court can compel a democratically elected government – and thus voters and taxpayers – to pay for a particular service in a particular setting, when that government would obviously rather not.

To not pay for abortions at Clinic 554, the CCLA’s argument goes, is to force women seeking an abortion to pay out-of-pocket or to travel, with consequent costs, burdens, and potential delay. Thus, such women would be deprived of liberty and personal security. And if Clinic 554 closes for financial reasons, as its owner often warns that it will, then the problem would get worse. As the CCLA’s statement of claim, filed on January 8, says, “The inaccessibility is no 

What does liberty really mean? British philosopher Isaiah Berlin first raised
the issue of competing definitions in his famous 1958 lecture “Two Concepts of Liberty.”

accident.” It is because the province is “opposed to providing barrier-free abortion services” and has therefore “imposed barriers” in the form of non-funding.

Of course, nobody is stopping pro-choice activists from across the country and beyond from coming up with the ostensibly desperately-needed funds. (To put the financial scale in perspective, the federal Health Minister withheld $140,000 in transfer payments to New Brunswick in 2020 and 2021, the amount New Brunswickers reportedly paid out-of-pocket per year for surgical abortions.) The cause of Clinic 554 has been taken up by activist organizations and the federal government. Clinic 554 is at liberty to provide abortions and supporters are at liberty to pay for it.

Yet that is not where their energies have been directed. “Clinic 554 shuts down after months of advocacy efforts for abortion rights,” was how Global News framed the story. The Abortion Rights Coalition (ARCC) of Canada accuses New Brunswick of “denying New Brunswickers equitable access to healthcare” and “discriminating against people who need abortion care.” ARCC asserts that, “The CCLA and Clinic 554 have the support of a majority of Canadians and hundreds of civil society groups.”

Given how much of a cause célèbre Clinic 554 has become among Canadian progressives, raising $140,000 – or three or four times that – should be easy. After all, there are dozens of donation-based support services for expecting and new mothers in Canada, including several in New Brunswick, which get no public funding. They aren’t suing the government for it, either.

To date, Canadian courts have not interpreted Section 7 of the Charter – which guarantees the right not to be deprived of life, liberty, or security of the person, except in accordance with principles of fundamental justice – as protecting “positive rights.” That is, the rights to life, liberty, and security do not entail a constitutional entitlement to be provided food, shelter, health care, or other things necessary for survival or for a decent life.

The idea of positive liberty is attractive on the surface – we are more free if we are provided the means to realize more choices. But it poses a problem in reality. If you have a positive right to something, it must mean someone else has a corresponding duty to provide it; if not, your “right” is meaningless. But if you do have such a legal right, and other people have a corresponding legal obligation, then the latter are not free. Their decisions, actions and resources can be compelled to satisfy that obligation.

Negative liberty rights (top) refer to an individual’s ability to live a life without interference from others, whereas positive liberty rights (bottom) require that all individuals possess the means to realize their choices, a situation which often requires government involvement or taxation.

Of course, governments routinely impose on people’s liberty in the form of taxation, making people pay for things that at least some people would rather not pay for and which they may never use themselves. Still, this leaves people free to advocate for one thing or other to be funded or defunded. It leaves democratically elected governments free to choose how to spend or not spend taxpayers’ money. And for things that the government does not fund but which remain important to you, you have the freedom to fund them yourself. Hence the thousands of charities and non-profits that exist in this country.

Should a court declare that it is constitutionally mandatory that New Brunswick pay for abortions, however, then democratic choice on the matter will be obliterated and liberty turned from the absence of interference with one’s personal choices to the duty to actively support the choices of others, regardless of how morally contestable their choices may be to you. This would have implications not only for individual liberties but also for the respective roles of courts and legislatures. The power to raise funds through taxation and make decisions about public spending properly lies with legislatures.

The implications for health care professionals may be more direct and profound. If taxpayer funding for abortion can be constitutionally mandated, what other forms of positive support might be next? Can the government be accused of failing to respect constitutional rights to liberty and security if it does not pressure health care workers to provide abortions? What if, for example, New Brunswick were willing to pay for abortions any time, any place, but nobody in New Brunswick wanted to perform abortions? Should the government compel people to provide abortion, in the name of liberty?

Given the complications and contradictions that a “positive rights” argument raises, and the fact that our courts have avoided interpreting “liberty” or “security of the person” that way, it isn’t surprising that the CCLA and its allies do not make an explicit or direct appeal to positive rights. Instead, declares Action Canada for Sexual Health and Rights, “The Government of New Brunswick is actively preventing barrier-free abortion services by forcing people to pay out of pocket to receive services in the one and only clinic in New Brunswick.”

No political interference: Despite the hyperbole of abortion advocates, the New Brunswick government never restricted or otherwise hindered the operation of Clinic 554 in Fredericton.

What a statement. They want to say that New Brunswick is “actively preventing” access to abortion. But that’s not true, since Clinic 554 has been doing abortions for years without interference. Hence the convoluted phrase “actively preventing barrier-free abortion” – you know, as your family and friends might “actively deprive” you of a “barrier-free” meal, apartment, car, or whatever…by not paying for it. And don’t forget, the government does pay for most abortions in New Brunswick.

Of course, the CCLA has other arguments. Like other critics of New Brunswick’s policy, the CCLA argues in its statement of claim that it “violates the Canada Health Act.” Sounds bad, right? Well, in truth it’s more of a rhetorical point than a legal one. The provinces plainly have constitutional authority to decide which services they will fund. Under the Canada Health Act, provinces receive large lump-sum payments from the federal government if their provincial health insurance plans have certain characteristics, one of which is that they cover all “medically necessary” services.

While federal Health Minister Patty Hadju recently withheld $140,000 in transfer payments from New Brunswick over the Clinic 544 affair, Ottawa lacks the ability to compel provincial health spending on federal priorities. (Source: UN Women Gallery, licensed under CC BY-NC-ND 2.0)

The provinces have significant latitude, however. They do not even have to spend the federal transfer payments on health care. They also have considerable discretion in deciding what constitutes medically necessary services. This has resulted in large differences in coverage between provinces (e.g. in midwifery, in-vitro fertilization, ambulance fees, psychiatry, podiatry, physiotherapy, dental, and more).

And the only “penalty” for not covering a service that the federal government thinks should be covered is a potential reduction in the federal transfer payment, which is also discretionary – and rare. Seems loosey-goosey for a statute? Well, the constitutional validity of the Canada Health Act depends on these features. The federal government would overstep its jurisdiction by mandating that provinces fund certain health services. So, instead, the dubious but not obviously unconstitutional approach is to offer financial incentives so that provinces will mostly do what the federal government wants.

Even if the court were to agree that New Brunswick’s current policy “violates” the Canada Health Act, it isn’t clear why that matters to the CCLA’s legal case. The judge cannot order the New Brunswick government to fund whatever services the federal Health Minister wants it to fund. The “remedy” is obvious, which is for the Health Minister to exercise the discretion to withhold funding – as she already did in 2020. Rather, the strategy may be to get the judge to find that abortion is “medically necessary” in order to (a) bolster the constitutional argument that the province must pay for it and (b) score rhetorical and political points. It may simply waste the court’s time.

A new approach to an eternally contentious issue: The CCLA lawsuit seeks to make provincial funding for private abortion clinics a constitutional obligation. (Source of top image: Steenaire, licensed under CC BY 2.0; source of bottom image: Shutterstock/ Xavier Ascanio)

Of course, there are plenty of unlawful ways for governments to spend our money. Any way not authorized by law, in fact. And the Constitution sets limits on laws that govern public spending as well. For example, a law providing public health insurance for men only would violate the Charter guarantee of the “equal benefit of the law” without regard to sex, race, religion, etc.

Not surprisingly, the CCLA also tries to make an equality argument in this case – that not funding private clinic abortions amounts to arbitrary and discriminatory deprivation of health care for women. Given the focus in Canadian jurisprudence on the differential effect a law may have on an identifiable group (women, in this case), this may be the CCLA’s strongest argument. The question will be whether the law denies to women a benefit that it provides to men, which the CCLA will characterize as equal health care coverage for basic health care needs.

Gender equality? The CCLA lawsuit claims gender discrimination because New Brunswick funds private clinic vasectomies (such as at this Fredericton clinic), but not abortions. But the proper comparison would be between vasectomies and tubal ligations – which New Brunswick does fund.

Abortion is obviously a unique procedure, and uniquely controversial. The CCLA points out that New Brunswick’s health insurance covers vasectomies performed in private clinics. But a vasectomy is designed to prevent pregnancy, not terminate a fetus. The obvious equivalent is not abortion, but tubal ligation, which the CCLA doesn’t mention (presumably because it’s also covered). The policy distinction has to do with abortion as a unique procedure, not with women as a distinct group of patients, one might argue. A similar argument could cut the other way. If the court accepts that the case is fundamentally about equal government support for “reproductive rights,” then the fact that women may need unique medical procedures to be effectively equal to men, and the controversial nature of abortion, may be considered merely incidental.

It remains uncertain whether the case will proceed. There is still the issue of the CCLA’s standing to bring the case, which will be heard in June; accordingly, to date the province has not filed a statement of defence or other motions. But if the case moves forward, it could have major implications for health care policy, freedom of conscience, pro-life policy initiatives, the relationship between courts and legislatures, and more.

John Sikkema is a lawyer and co-founder of the Acacia Group, specializing in constitutional, public, charities, and human rights law.

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