Reproductive Rights

On tenuous ground

Jessica Derynck & Adam Picotte

Reproductive Rights

Reproductive rights remain tenuous in Canada. We require a national universal pharmacare program to ensure these rights remain robust.

Living in Canada and looking to our neighbours to the south, it is easy to think “good thing we aren’t there.” Over the last few decades, state governments have whittled away at the fulsome access gained through Roe v. Wade through regulations and requiring hospital privileges — the sole purpose of which is to stifle ease of access to abortion.

Although the rights obtained through R. v. Morgentaler are not on the same precarious ground as Roe v. Wade, we have practical problems that impair many women’s and transgender people’s legal rights to control their own reproductive health.

While contraceptives have been legal in Canada since 1969, access is another issue.

In the United States, the Patient Protection and Affordable Care Act ( requires employers and insurers to provide coverage for contraceptives at no cost (save for an exception allowed for religious organizations).

Employer and insurer provided coverage cannot be federally legislated in Canada. The federal government has some ability to influence benefit plans such as in the case of access to genetic testing results ( However, a federal law prohibiting benefits plans from making an exclusion is unlikely to be upheld as this is clearly within provincial jurisdiction.

If we were going to have laws requiring insurers and employers to provide contraceptives at no cost similar to the requirement in the Affordable Care Act, each would need to be provincial. Currently, there are no provinces that legislate insurance coverage for contraceptives. In Ontario, a pharmacare program covered contraceptives along with other prescription medication for every person up to age 25. However, the current government removed coverage for anyone covered by their parents’ benefit plan. The result is that secure access to contraceptives for teenagers and young adults has been put at risk.

While lack of contraceptive coverage is clearly discriminatory on the basis of sex, the BC Human Rights Code contain exceptions allowing health insurance contracts and group employee insurance plans to discriminate. The same exception that allows an insurer to refuse coverage for pre-existing conditions also allows refusal for contraceptives. Similar exceptions are found in other Canadian jurisdictions. It is arguable that this exception itself violates the Charter.1

Access to abortion providers also remains problematic. While most metropolitan areas continue to enjoy ease of access, this is not the state in smaller jurisdictions. Access to surgical abortion is particularly difficult in the maritime provinces.

Similarly, while most provinces cover the cost of abortion by medication, there is no guarantee for this. Saskatchewan does not provide this coverage.

These differences in approach illustrate the differential treatment that may be experienced by those living in urban versus rural areas and the difference in access between those with means and those without.

Action Canada for Sexual Health & Rights2 advocates for the federal government to withhold cash transfers to provinces and territories that do not provide access to contraceptives and abortion medication. However, the best method that the federal government has available for ensuring access is to introduce a national universal pharmacare program that includes contraceptive medications and devices, whether they are medically necessary or used for preventing pregnancy. Canada remains the only country with a universal public health care system that does not cover prescription medication. Such a program would have the effect of ensuring coverage and preventing discrimination based upon sex.

  1. See Talos v. Grand Erie District School Board, 2018 HRTO 680 |
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