Shortly before my Supreme Court hearing, the government announced it had removed the requirement that abortions be “medically required" from the Health Payment Act Regulations. However, regulations have no force in law if they conflict with, or negate key provisions of the parent legislation: e.g., “laws” take precedence over “regulations.” That's why governments can amend “regulations” unilaterally but can only change “legislation” through the Legislative Assembly, where Opposition MLAs can challenge the government: and the MacLaughlan government has not yet changed the parent legislation governing the payment of health services.
Section 4(h) of the Health Services Payment Act remains in force and reads: “It is the function of the Minister and the Minister has power….to withhold payment for basic health services for any entitled person who does not, in the opinion of the Minister, medically require the services.” And “function” is defined under the Interpretation Act as a legal “duty” which compels the Minister to deny payment for all health services which are not medically required.
So why are opposition MLAs not holding the government accountable for breaking this law? I suspect they, like most Islanders, have come to believe false statements repeatedly made by government officials and abortion advocates claiming there is a constitutional obligation for provinces to provide and pay for abortions. For example, after Hon. Jamie Fox publicly declared that he is Pro-Life and opposes abortion on principle, he then told a Guardian reporter: “I totally respect the Supreme Court and the ruling that they have provided in regards to this being a Constitutional issue and that there is an obligation for all provinces to provide services” [Guardian, April 3, 2016]. The Supreme Court has made no such ruling, nor does any such obligation exist.
All seven judges in the 1988 Morgentaler case concurred that there is no constitutional right to abortion-on-demand. Nor does the Canada Health Act require provinces to fund abortions: the Constitution Act gives provinces exclusive jurisdiction to decide what health services are funded under provincial plans. You can find additional proof that provincial governments are not legally obligated to offer or pay for abortions in several documents I submitted to the Supreme Court [https://kja321.wordpress.com].
Because our government is supposed to be “democratic” and not “autocratic,” I am publicly appealing to the Leader of the Official Opposition, Hon. Jamie Fox, to bring the following question to the P.E.I. Supreme Court for clarification: “Does the Health Services Payment Act authorize the Minister to pay for health services which are not medically required?” If the court answers “No,” and Premier MacLaughlan then moves to change the law in the House...well, the Leader of the Opposition can ask the Premier why he wants to use scarce health dollars to fund procedures that aren't medically required, and the Premier's response can be recorded in Hansard for posterity. That's how democracy is supposed to work...that's why we have a Legislative Assembly. No one should be above the law, not even Premier MacLaughlan.
Kevin J. Arsenault