Barriers to abortion in Canada make it an unlikely haven for Americans

TORONTO — The Women's Health Clinic in Winnipeg is stretched. The facility is one of a handful of abortion clinics in Manitoba, a Canadian province of 1.3 million. It fields about 100 inquiries each week and says it is providing as many as 30 percent more abortions than it receives government funding for.

Even before the U.S. Supreme Court struck down Roe v. Wade, the nearly 50-year-old precedent protecting abortion rights across the United States, some of those inquiries about abortion were from Americans. Now the clinic, 70 miles from the border with North Dakota, where a trigger ban goes into effect this month, is watching for more.

It is "too soon to say" whether inquiries from Americans will increase and by how much, said Blandine Tona, director of programs at the clinic. But even a small number could tax the clinic, "so one of the things we have been doing is to organize and prepare," including by considering whether to offer abortions on more days each week.

Prime Minister Justin Trudeau and other Canadian leaders have condemned the U.S. Supreme Court ruling. His government has said it will not turn away Americans who are unable to get abortions at home. But with long distances between many clinics, providers stretched thin and travel barriers at the border, that might not be much of a solution.

Canada decriminalized abortion in 1988, and abortion rights draw broad political support here. But even as access has improved over the decades, it remains limited outside of major metropolitan centers and dependent on one's ability to travel.

"We have supported people where the closest abortion provider is multiple days driving distance from them," said Jessa Millar, who manages the hotline for Action Canada for Sexual Health and Rights.

Some Women's Health Clinic patients travel to Winnipeg from Kenora, Ontario, about 130 miles away. T.K. Pritchard, executive director of the Shore Centre, which provides medication abortions in Kitchener, a city in southwestern Ontario, said it has clients from northern Ontario. It has been booking appointments three to four weeks out.

The center has received calls from a small number of people in Michigan since the overturning of Roe who are curious about abortion access in Canada, Pritchard said, but it has "not hearing from people who are actually looking to book appointments." One of the challenges for the center is that it is "really hard trying to keep up with the demand that already exists," Pritchard said.

When abortion pills became commercially available here in 2017, there was optimism that they would help improve access, particularly in remote and rural areas. Advocates. however, say it is still patchy. "Most family physicians will not prescribe it, and they will just refer out to an abortion clinic," said Mohini Datta Ray, executive director of Planned Parenthood Toronto.

Jill Doctoroff, executive director of the National Abortion Federation Canada, said about 600 people registered for its training on prescribing the abortion pill since it launched in April 2021. Last weekend, after the U.S. Supreme Court decision, 70 people registered.

"What that shows is that one of the impacts of the decision is that people are recognizing that there are access issues in their own country and that they wanted to be able to do something," Doctoroff said.

Several states that border Canada have abortion bans in place or soon to be imposed. In other border states, such as Michigan and Montana, the status of abortion rights is uncertain.

Even if access in Canada were improved, advocacy groups said, there are other barriers such as the need for a passport and the cost of the procedure, which could be as much as $600, that would likely dissuade Americans from crossing the border and make them more likely to travel to other states instead.

Those costs "would put it out of reach for a lot of Americans," said Joyce Arthur, executive director of the Abortion Rights Coalition of Canada. "This is still early, and we don't know how it will play out."

There were more than 74,000 abortions in Canada in 2020, according to the Canadian Institute for Health Information. Most abortions in the country are performed during the first trimester of pregnancy. Each province and territory has different gestational limits for medication and surgical abortions, and rules governing whether and when parental consent is needed.

In Prince Edward Island, where government policy kept the island free of abortion for over three decades until 2017, surgical abortions are not provided after about 12 weeks. Islanders are often referred to other Atlantic provinces, including neighboring New Brunswick, where the procedure is covered only if performed in one of three hospitals.

Abortion after 24 weeks is limited in Canada, sending a small number of people across the border to the United States each year. Analysts and advocates worry such travel could be jeopardized by the court ruling.

They are watching other potential ripples, as some federal and state lawmakers indicate intentions to block women from obtaining abortions in other states, penalize out-of-state medical practitioners or halt the flow of abortion pills by making their shipment by mail illegal. What if those prohibitions extend to other countries or if people persecuted for obtaining or providing abortions in the United States seek refuge in Canada?

A key test under Canadian extradition law is "double criminality," when the conduct for which someone is wanted is also illegal in Canada. Since neither obtaining an abortion nor prescribing the abortion pill is illegal in Canada, such requests are unlikely to meet the test, said Robert Currie, a law professor at Dalhousie University in Nova Scotia.

But in some instances, he said, the double criminality analysis may involve "transposing" U.S. legal background. In a case in which prosecutors sought to extradite a Canadian who prescribed the abortion pill to an American, "we can imagine the court saying that the 'essence of the offense' was selling prescription drugs in a market where it was illegal to sell them," Currie said, "and the fact that it was an abortion drug is just 'background.' This could be a major issue."

The Canadian Supreme Court decriminalized abortion in 1988 in R. v. Morgentaler. "Forcing a woman, by threat of criminal sanction, to carry" a fetus "to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person," the court said in a 5-2 decision.

The decision did not establish a right to abortion in Canada, and there is no federal law enshrining one. Before the ruling, abortion was limited to those who obtained approval from a "therapeutic abortion committee" of doctors at an accredited hospital. A majority on the panel had to agree that continuing a pregnancy "would or would be likely to endanger" the woman's "life or health."

Some hospitals didn't have enough doctors for a committee. Others saw only patients who lived within a certain geographic area or imposed quotas on the procedure. All other providers of abortion, or women who got them, faced criminal penalties.

Some Canadian women crossed the border for abortions. In 1984, more than 3,480 Canadian residents secured legal abortions in the United States, according to a Statistics Canada report at the time. At trial in R. v. Morgentaler, the director of a women's health center in Minnesota testified that many Canadians clients faced delays at home.

Arthur, from the Abortion Rights Coalition of Canada, noted that history. "The clinics were very welcoming, and I know there is expression up here that the tables are turned now," she said. "We want to help Americans coming up here. We want to reciprocate but also recognizing that it is going to be a challenge for us, and we are not going to be able to help as many Americans at the end of the day."