Repealing Regulation 84-20 became a 2020 provincial election issue. The Liberal Party of New Brunswick, the Green Party of New Brunswick, and the New Brunswick New Democratic Party made election promises to improve access to abortion. In contrast, Blaine Higgs, the incumbent premier and leader of the Progressive Conservative Party of New Brunswick, believes that abortion access is not an issue in the province, and that private clinics are not covered under the Canada Health Act. When asked about his position on the issue, leader of the People’s Alliance, Kris Austin, said he would not change the status quo.
The government of New Brunswick’s refusal to fund out-of-hospital abortions is a violation of the Canada Health Act, the governing piece of legislation that provides for federal transfers to the provinces and territories for providing public health care. If a provincial government is believed to have violated the act, the federal government can withhold federal health transfers, which the federal government did in March 2020 when it withheld $140,216 in transfer payments to New Brunswick.
What has been missing from this discourse is that repeated refusal among successive provincial governments to fund Clinic 554 is a violation of international human rights law. The right to health, including the right to sexual and reproductive health, is encapsulated under article 12(1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Access to abortion is included in this right. Canada, which under article 29 of the Vienna Convention on the Law of Treaties means the federal, provincial, and territorial governments, acceded to the ICESCR in 1976.