Canadian abortion doctors cautioned over prospect of charges, suits if helping U.S. patients

An organization that helps physicians handle legal issues is raising the prospect of Canadian doctors facing criminal charges or lawsuits if they provide abortions to Americans who have come to Canada.

It is calling on the federal government to work with provinces and territories to ensure physicians have liability protection in case of legal proceedings in the United States.

The Canadian Medical Protective Association, a non-profit that provides legal defence, liability protection and other risk-management services for physicians, issued a statement Tuesday to its members about non-Canadian residents who seek abortions in this country.

Doctors have been contacting the CMPA to ask if the association can provide help if they provide abortions to American patients, the organization says.

“The CMPA is aware that some states are contemplating legislation that would potentially allow for criminal charges and civil legal actions to be brought against health-care providers who provide abortions to residents out of the state (even where the care is delivered outside of the state),” the association statement says.

“If this legislation is implemented, physicians in Canada who provide abortions for American patients from states where abortion is illegal … could face criminal charges/civil actions in the U.S.”

At the end of June, the U.S. Supreme Court overturned Roe v. Wade, the case that has provided a constitutional right to abortion in the country for close to 50 years. As abortion is banned in many states, Canada could see a rise in medical tourism. But advocates have said that option will be limited to those who can afford it.

The CMPA, which had 105,000 members as of 2021, according to its website, says it is not structured to provide advice on American law, and urged members who have questions to seek out guidance from legal counsel in the U.S.

It also encouraged members to consider obtaining “additional liability protection” if a doctor wishes to provide abortions for Americans.

It recommended completing the organization’s Governing Law and Jurisdiction Agreement, which are forms doctors are encouraged to fill out if they are providing care to people who aren’t residents of Canada. The agreement helps to establish Canadian jurisdiction for any possible legal action taken that may result from treatment, the association explains on its website.

In statements to the Star, the association said it is “actively advocating” for the Canadian government to work with provinces and territories to ensure liability protection is available if those physicians face legal proceedings.

“We will continue to do everything we can to support physicians who provide abortion services to U.S. patients — within our mission and mandate — including sharing strategies to lessen risk and protecting members within Canada,” it said.

On Monday, the CMPA also sent a letter to the federal minister of health and the minister of families, children and social development about its concerns regarding the legal implications of physicians providing abortions to Americans in Canada. Being able to reassure health-care providers that they would receive protection “would go a long way in facilitating efforts to support U.S. patients in these difficult circumstances,” the letter states.

According to CMPA policies updated in 2004, the organization does not generally assist with “with difficulties that arise outside of Canada” due to “potential for prohibitively expensive legal actions in other jurisdictions, particularly the United States.”

When Texas banned abortions after six weeks of pregnancy in September 2021, it relied on enforcement through civil lawsuits.

Jill Doctoroff, executive director of the National Abortion Federation Canada, called it an example of a law having a “cruel and vindictive vigilante component,” allowing someone to sue anyone involved with helping someone getting an abortion. States such as Oklahoma have similar laws.

It’s a “grey area” right now as to whether such suits could reach Canadian doctors, but it’s clear many Canadians and doctors want assurances that their own abortion rights will be protected and that help can be given to American women if needed, she said.

Concerns about legal action could act as an additional barrier to American women seeking abortions, she said.

“Then there’s other barriers, like having a passport to get into Canada, the financial resources and navigating a totally different health-care system.”

This is why Doctoroff said she doesn’t expect we will see many Americans coming north for abortions.

With files from The Canadian Press

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