Thirty-six senators have signed a letter in support of Clinic 554 in Fredericton, the only location in New Brunswick that offers surgical abortions outside of hospitals.
The clinic, which also serves as a family practice and a resource centre for LGBTQ2 patients across the province, was expected to close Wednesday night due to a lack of government funding.
"The closing of Clinic 554 would impair access to hard won Charter-protected rights," the letter released Tuesday night states.
In 1988, the Supreme Court of Canada granted women the right to choose to have an abortion, without fear of prosecution.
"Yet, access to the reproductive rights conferred to women years ago by the highest court in the Land are still being restricted by provincial regulations and policies," the senators' statement said.
Medicare currently covers only abortions performed at three hospitals in the province, two in Moncton and one in Bathurst.
"While we appreciate that the provision of services per se … is a provincial jurisdiction, the truth is that … the services offered by the clinic are different in nature because they have been prescribed constitutionally by the Supreme Court," said Sen. Judith Keating, one of the five New Brunswick senators who signed the letter.
"So they're not on the same level as other services, and so the obligation of the province is to ensure that proper access is provided."
Instead, the province has "consistently restricted the right to access by imposing some regulatory controls," said Keating, who has legal and constitutional expertise, having served more than 30 years in a variety of roles with the provincial government before her appointment to the Senate in January.
She was the first woman to serve as deputy minister of Justice and deputy attorney general of New Brunswick. She also served as chief legislative counsel and chief legal advisor to the premier.
Sen. René Cormier, the only male New Brunswick senator who signed the letter, said his job isn't to tell the government how to do its job.
"My job as a senator is to remind all citizens, including the elected people, about the rights that Canadian citizens have and how we must act to protect those rights, but [also] to make sure that they have access to those rights."
More than 30 years ago, the Supreme Court decided access to reproductive rights was a right, he said.
'"It's not for me to decide if I agree or not with that service. It's a right."
Premier Blaine Higgs was unavailable for an interview Wednesday, said spokesperson Nicolle Carlin.
"He doesn't have anything more to say in response than what was said [Monday]," she said in an email.
On Monday, Higgs told reporters he's concerned that funding abortions in private clinics would set a precedent.
"So if we're going to suggest … that it's more cost-effective to offer services in a private clinic, then where does that stop? Does that mean that we should continue to offer more and more services in private clinics and less and less services in public institutions?"
Higgs said it's "a slippery slope. And if you do it for one service, where does it stop?"
'Slippery slope' disputed
"It's not a slippery slope, in my view, because the services and the access to services that we're talking about stem from rights, from granted rights," she said.
"And so it is up to the province, and it's the responsibility of the province to pay for the service when it's required. And that's not what's happened. And that's not what has happened for the last 30 years."
Fredericton MP Jenica Atwin disputes Higgs's claim that Clinic 554 is a private clinic and will lead to privatizing medical services.
She contends it's a family clinic like any other and that the premier, who is personally opposed to abortions, has created a false narrative.
Atwin said she's thankful for the support of the senators.
"I wish it had come a bit sooner, where we know today is the imminent closure of the clinic, but it still makes a statement about access in New Brunswick."
It's also "added pressure, which is good," she said.
Closing date unclear
It's unclear if Clinic 554 closed Wednesday, as scheduled.
Dr. Adrian Edgar, who runs the clinic, could not be reached for comment.
The clinic's administrator Valerie Edelman could not be reached for comment either.
Edgar has applied to provide temporary visits for a small group of Clinic 554's "most vulnerable family practice patients, including those who require specialized care like abortion access, over the coming weeks to months," according to a post on the clinic's Facebook page on Sept. 23.
"If his application is approved, we will reach out to you," it states.
Atwin said the fight for access to reproductive rights will continue whether Clinic 554 closes or not.
Regulation 84-20 of the New Brunswick Medical Services Payment Act stipulates abortions are paid for only if they are performed in an approved hospital.
She intends to keep pushing the issue with federal Health Minister Patty Hadju and plans to make a statement in the House of Commons on Thursday.
Earlier this year, the federal government found New Brunswick was violating the Canada Health Act by not covering out-of-hospital abortions under medicare and deducted $140,216 from its annual health transfer payments. That's the amount New Brunswickers spent out-of-pocket on abortions at a clinic in 2017, when they were supposed to be covered.
When the COVID-19 pandemic hit, Ottawa decided to reimburse the money because of the pressure the novel coronavirus put on the health system, but said it was temporary and that discussions about reducing barriers to abortion were continuing.
The other New Brunswick senators who signed the letter of support include: Nancy Hartling, Sandra M. Lovelace Nicholas and Pierrette Ringuette.
"Senators should have their voices heard in situations where the curtailment of the exercise of the rights of citizens by any Canadian jurisdiction leads to a continual denial of those rights," the letter spearheaded by Ontario Sen. Kim Pate states.
"In a Constitutional Democracy such as ours, the substance and intent of Supreme Court decisions must be respected and applied."
The New Brunswick senators who did not sign are: Percy Mockler, Rose-May Poirier, David Richards and Carolyn Stewart Olsen.
Last Friday, a group protesting the imminent closure of Clinic 554 had their tents removed from the grounds of the New Brunswick Legislature.
Speaker Daniel Guitard told CBC News on the weekend that he made the decision with the staff and advisory team after being told it was a longstanding practice not to permit tents on the property for security reasons.