Shaoni Chakraborty is a first-year medical student at the University of Ottawa with a strong interest in healthcare policy, human rights, and child advocacy. During her time as a student volunteer with the Forum, she contributed to various projects focused on federalism and public policy. She is passionate about exploring the intersection of governance and equitable healthcare access and looks forward to deepening her understanding of federal systems and their impact on public policy and vulnerable populations.
Introduction
Abortion is a deeply complex and contentious issue that involves questions of healthcare, morality, legality, and gender rights. The regulation of abortion laws is often influenced by a country’s legal, cultural, religious and political frameworks. Federalism, which divides governmental powers between national and constituent unit governments, can have profound effects on the accessibility and implementation of abortion laws, which in federal systems can often differ significantly between levels of government. Canada and Brazil offer contrasting yet insightful examples of how federalism shapes the abortion debates and practice. In Canada, while abortion is legal across the country, Indigenous communities and rural populations face significant barriers to access. On the other hand, Brazil’s federal system allows state and municipal governments to interpret and enforce abortion laws differently, often influenced by the country’s strong religious conservatism, which results in uneven access to legal abortion services. In light of ongoing debates surrounding the overturning of Roe v. Wade, the landmark legal decision by the U.S. Supreme Court (the highest U.S. court at the national level) which ruled that abortion was protected under the constitution, it is more crucial than ever to examine how federalism influences abortion rights. The structure of government plays a significant role in shaping access to reproductive healthcare, and understanding its impact is essential for addressing the current challenges to women’s rights. A closer analysis of how different federal systems, such as those in Canada and Brazil, handle abortion laws offers vital insights into the broader implications for women’s autonomy and healthcare access.
Canada’s Abortion Access in the Context of Federalism
Before 1969, abortion in Canada was strictly prohibited under Section 251 of the Criminal Code. Anyone assisting in the procedure, including physicians, faced a maximum sentence of life imprisonment, while women who sought abortions could receive up to two years in prison. In 1969, the government of Prime Minister Pierre Trudeau reformed the law, allowing abortions in accredited hospitals if a Therapeutic Abortion Committee (TAC) determined the pregnancy posed a risk to the woman’s physical or mental health. Abortions outside of this framework remained illegal, maintaining restrictive access for women. Dr. Henry Morgentaler, a prominent physician and advocate for abortion rights, challenged these legal restrictions by providing safe abortions in his private clinics, bypassing the TAC approval process. In 1988, Dr. Morgentaler and two colleagues were charged for performing abortions without TAC authorization at his Toronto clinic. The case reached the Supreme Court of Canada, where Morgentaler’s legal team argued that Section 251 violated Section 7 of the Canadian Charter of Rights and Freedoms, which protects the rights to “life, liberty, and security of the person.” In a landmark decision, the Supreme Court in R. v. Morgentaler found Section 251 unconstitutional, concluding that TAC requirements undermined women’s autonomy and exposed them to potential psychological and physical harm. The court ruled that such procedural barriers were inconsistent with a free and democratic society, effectively nullifying the criminal law restrictions on abortion. The Morgentaler decision left Canada without specific federal abortion laws, moving abortion regulation to provincial healthcare systems and reframing it as a healthcare issue instead of a criminal one. While the Supreme Court struck down restrictive federal abortion laws as a violation of Section 7 of the Charter, it did not establish an absolute “right” to abortion, leaving the door open for potential federal restrictions, as long as they are not overly burdensome.
Canadian federalism regarding abortion is often described as cooperative or collaborative. Broadly defined, in cooperative federalism, the national government works with provinces in order to achieve common goals, often with the federal government taking a leading role in coordinating efforts and providing funding. Collaborative federalism, however, suggests a more equal partnership, with a focus on consensus-building and joint decision-making. In practice, these boundaries blur, and in some cases it is argued that cooperative federalism becomes in practice more of a coercive relationship between the federal and constituent unit governments. Negotiations between federal and provincial governments are common, especially in healthcare.
In the context of abortion, the Canada Health Act (CHA) and the federal structure of Canada’s healthcare system create a complex landscape for equitable access. The CHA, enacted in 1984, sets principles for public healthcare funding, including accessibility, universality, and comprehensiveness. However, healthcare is provincially administered, meaning that each province has authority over healthcare services, including decisions about abortion access and funding. The Canada Health Act (CHA) mandates that provinces fund “medically necessary” services, but provinces have latitude in defining necessity within CHA guidelines, allowing for regional variation. This autonomy allows provinces to shape abortion policies based on local political, cultural, and social factors, resulting in a patchwork of services. For instance, provinces like Ontario and British Columbia provide more comprehensive funding and access in comparison to regions with more conservative political cultures, such as Prince Edward Island, which only began offering on-island abortion services in 2017. Additionally, New Brunswick has some of the most restrictive abortion access laws in Canada: services are only offered at three hospitals, with one clinic requiring out of pocket payments from patients for abortion treatments. As a result of varying policies across provinces, abortion remains inaccessible to many vulnerable residents, leading to an uneven landscape of access throughout Canada. The federal government can use the CHA to withhold healthcare funding from provinces that fail to meet accessibility standards. However, enforcement is inconsistent, and the federal government has limited authority and financial influence to ensure consistent access to abortion services across provinces. This arrangement illustrates both the strengths and challenges of Canadian federalism: while it accommodates regional differences, it also allows disparities in abortion access, creating inequalities that depend on where a person lives. As a result, abortion policy in Canada is shaped by a balance between federal principles of healthcare accessibility and provincial autonomy, leading to varying levels of service across the country.
Access to abortion services in Canada faces significant challenges, especially for individuals in rural, remote, and Indigenous communities. Abortion clinics are concentrated in urban areas, often close to the U.S. border, meaning that people in remote regions must frequently travel long distances to access care. For example, fewer than 20% of Canadian hospitals provide abortion services, which often leaves individuals in rural or northern areas without nearby options. While the federal government aims to ensure that healthcare adheres to principles like accessibility and universality, it does not mandate how provinces allocate resources or ensure services are equitably distributed. Though this system has certain advantages, this lack of centralized enforcement may allow disparities to persist without accountability. These disparities can lead to logistical and financial burdens, including travel costs, time off work, and childcare arrangements, making abortion services inaccessible to many who need them.
Additionally, Canada faces a shortage of trained abortion providers, partly due to gaps in medical education and stigma. Medical education in Canada is overseen by provincial institutions and individual medical schools, which results in varying curricula. The federal government does not mandate specific topics like abortion training in medical education. As a result, Canadian medical schools typically devote less than an hour to discussing abortion, and some do not cover first-trimester abortion procedures, contributing to the limited number of doctors willing and able to perform abortions. This decentralized approach allows gaps in abortion education to persist. The lack of providers is compounded by restrictive hospital policies, which may include gestational limits and referral requirements, further limiting timely access to abortion care in certain areas. The introduction of the abortion pill, Mifegymiso, has improved access to early-stage abortion in some rural areas, yet access remains inconsistent across provinces, and telemedicine support for Mifegymiso is still limited in many regions. These barriers create an uneven landscape of abortion access across Canada, leaving rural and marginalised populations with fewer options for reproductive healthcare. While the federal governance system plays a role, disparities in abortion access also exist due to factors independent of the federal structure, such as systemic racism, geographic isolation, poverty, and cultural barriers. For instance, even within provinces with better access, Indigenous women and those in remote areas often face additional hurdles, such as distrust in healthcare systems due to colonial histories and systemic discrimination. These social and structural inequities compound the challenges posed by the decentralized federal system, creating a multi-layered issue that requires both federal oversight and local-level reforms to address effectively.
Brazil’s Abortion Laws and the Impact of Decentralization
In Brazil, the history of abortion regulation has been shaped by strong federal and religious influences, with restrictive abortion laws reflecting the country’s Catholic and evangelical roots. Abortion has been criminalised in Brazil since the 19th century. Limited exceptions were introduced in the 1940 Penal Code, which permitted abortion only in cases of rape, when the pregnant person’s life is at risk, or if the fetus has anencephaly, making these some of the most restrictive abortion laws in Latin America. Despite these allowances, accessing even these restricted legal abortions is often challenging due to the stigma, procedural barriers, and religious opposition. Additional abortion-related laws include the 1941 Misdemeanours Act, which prohibits the advertisement of any substances or methods intended for abortion, a law that previously included contraceptives until its revision in 1979. These restrictions, coupled with variations in enforcement across states, reflect the challenging regulatory environment shaped by Brazil’s federal system and longstanding conservative influences. In recent years, advocacy groups and women’s health organisations have pushed for the liberalisation of abortion laws, arguing that restrictive policies contribute to higher maternal mortality rates, particularly among low-income and marginalised women. Yet, attempts to broaden access or decriminalise abortion face intense resistance. In 2017, a petition to the Brazilian Supreme Federal Court sought to decriminalise abortion in the first 12 weeks of pregnancy, but this initiative sparked massive protests and was countered by strong political and religious opposition from federal legislators and state officials alike.
Brazil operates as a federal republic with three levels of government: federal, state, and municipal. Under Brazil’s federal constitution, the criminal code—including abortion restrictions—is determined by federal law, leaving individual states with limited authority to implement an alternative legislative regime on abortion independently. The decentralised healthcare system in Brazil is exemplified by the Unified Health System (Sistema Único de Saúde), which became municipalised in the 1980s. This shift coincided with localised regulations, such as those enacted in São Paulo, further complicating the federal government’s ability to maintain uniform abortion services. Without national mandates compelling public hospitals to offer these services, the Ministry of Health’s influence is limited to setting general guidelines, leading to disparities in service availability across different regions. As a result, local governments and state agencies have some autonomy in implementing health services, including those related to abortion access. This decentralised structure has led to variations in how abortion laws are enforced across the country. For example, the Penal Code lacks detailed guidelines on how exceptions should be applied, allowing local governments to impose additional requirements for women seeking legal abortions. In some regions, medical professionals are required to verify medical necessity through multiple certifications, while in others, women must provide police reports in cases of rape. This bureaucratic process complicates access, especially for low-income women and those in rural areas who may lack resources to navigate the legal and healthcare systems.
Federalism also affects abortion access through the influence of local political and religious groups, which often exert pressure on state and municipal governments to uphold conservative policies. Brazil has a strong evangelical and Catholic influence, and local leaders in conservative regions may restrict abortion access or provide limited services, even within the legal exceptions. This localized control allows some states to be more restrictive than others, with conservative areas imposing procedural and administrative barriers, such as requiring court orders or psychiatric evaluations before granting abortions in cases of rape.
Despite these difficulties, the federal structure in Brazil still provides an opportunity for innovative and localised responses that can advance access to reproductive healthcare, though this potential is not guaranteed. For example, by utilising state autonomy and adopting lessons from successful regional models, Brazil can progress toward creating safer and more equitable abortion laws. This decentralised approach can enable states to develop innovative policies that align with local demands while still adhering to overarching federal principles. It promotes a system where positive legislative changes at the state level can serve as examples, encouraging other regions to implement similar reforms. Additionally, coordinated federal and regional approaches could strengthen the implementation of legal abortion exceptions, create more uniform medical protocols, and facilitate partnerships with NGOs and advocacy groups to promote reproductive health services. Courts have played a significant role as an alternative venue for feminist advocacy, contributing to the liberalisation of abortion laws and ensuring the implementation of existing legal exceptions. Judicial decisions have helped deter backlash against reproductive rights and have fostered public deliberation on abortion issues, making courts an influential platform in shaping reproductive policies. The Supreme Court, which is already considering cases related to the decriminalisation of abortion, demonstrates the potential influence of judicial rulings on nationwide policy. The mechanisms of federalism can be leveraged to expand reproductive rights, but whether they are used for this purpose depends on political will and the priorities of individual states. However, through this governance model, the pathway to improved reproductive care for women, girls, and all individuals seeking such services can be more effectively forged. Some may argue that for federalism to have these beneficial effects, there must be a commitment to consistent oversight from the central government to avoid inequalities stemming from the local enforcement of restrictive practices.
Minority Groups and Abortion Access: Same Struggle, Different Roots
Access to abortion services for minority groups is shaped by factors beyond the federal governance structure, including social, legal, and healthcare systems. While federalism itself does not directly determine access, it intersects with other systemic issues that create barriers. Canada and Brazil both face challenges related to access to abortion services for Indigenous and minority groups, but these challenges manifest differently due to their distinct social, legal, and healthcare systems.
In Canada, abortion services are legally available and protected, but significant access barriers persist for Indigenous peoples. Geographic isolation plays a key role, as many First Nations communities are located far from urban centres where comprehensive healthcare facilities, including those offering reproductive services, are available. For many Indigenous women, historical trauma, the legacy of colonisation, and ongoing mistrust of the healthcare system shape their experiences. Traditional Indigenous knowledge and practices, which included midwives and healers who supported various pregnancy outcomes, including abortion, have been suppressed over centuries. This loss of traditional care, combined with the lack of accessible healthcare services on many reserves, contributes to a deep-seated distrust in mainstream healthcare institutions, further complicating access to abortion for Indigenous women. Additionally, the limited reproductive health education and culturally safe care disproportionately affects Indigenous women and 2SLGBTQIA+ individuals. Many healthcare facilities do not offer culturally competent care, which involves understanding and respecting the cultural backgrounds of patients. This exclusion can lead to a lack of understanding about safe reproductive practices, such as abortion services, and can create feelings of alienation when engaging with the healthcare system, which often fails to provide culturally sensitive care. These barriers highlight the need for decolonized approaches to reproductive healthcare that prioritise Indigenous perspectives and practices.
In Brazil, the stringent legal framework around abortion creates significant challenges, particularly for marginalised groups such as Indigenous women, Afro-Brazilians, and those living in rural areas. Even within the exceptions of abortion under the Penal Code, navigating the healthcare and legal systems is extremely challenging. The bureaucratic hurdles required to access a legal abortion pose substantial barriers, particularly for women in isolated or impoverished regions. This legal and procedural complexity disproportionately affects marginalised groups who already face structural inequalities. Indigenous women and Afro-Brazilians are often economically disadvantaged and lack consistent access to healthcare, which exacerbates the risks associated with unsafe abortions. These populations are more likely to turn to unsafe, clandestine procedures, which contribute significantly to maternal mortality rates. The criminalization of abortion and its associated penalties, which can include prison time for both women and providers, further deter individuals from seeking even legally permissible services out of fear of stigma or prosecution. The structural inequalities that exist in Brazil’s healthcare system amplify the health risks for marginalised women, compounding the cycle of inequity and limiting their ability to make autonomous reproductive choices.
Conclusion
The differences in abortion laws and practice between Canada and Brazil highlight the significant work still needed to ensure that all women, regardless of geography, socioeconomic status, or cultural background, have access to safe and legal abortion services. While Canada benefits from a system that allows for broad access to abortion, issues remain, particularly for Indigenous and rural populations who face barriers in accessing care. In Brazil, the centralised federal restrictions on abortion laws, combined with localised resistance influenced by religious and political pressures, result in inconsistent access and significant barriers to reproductive healthcare. Federalism, however, presents an opportunity for change. By empowering states to implement progressive policies and adapt to local needs, federal systems can help bridge the gap in access to abortion services. The need for reproductive justice remains clear: the fight for women’s rights is far from over, and only through continuous advocacy and structural reforms can we ensure that every woman, everywhere, has the autonomy to make decisions about her own body.
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