■ Legal and regulatory proceedings:

Navigating legal or regulatory processes

Answering your questions: Providing abortion services to non-residents

Woman packing a suitcase

6 minutes

Published: July 2022

The information in this article was correct at the time of publishing
22-04-E

The CMPA believes in and supports equitable and timely access to abortion services.

We recognize the significance of the recent United States Supreme Court’s decision overturning the Roe v. Wade decision and its impact on the ability of patients to access abortions in the U.S.  It is possible that some American patients will seek abortion services in Canada, given that several states have taken steps to restrict access to abortion.

We know our members are increasingly concerned about the medico-legal risks of providing abortion services to patients from the U.S. Below you will find answers to the most frequently asked questions to help clarify CMPA’s assistance around abortion services and mitigating the risks related to a U.S. legal proceeding.

Q. Will the CMPA provide support and assistance to members for legal matters related to providing abortion services to non-Canadian residents?

As the Canadian Medical Protective Association (CMPA), we are here to protect and support members when legal issues arise in Canada (e.g. issues brought before Canadian courts or Colleges) when providing abortion services (including emergency services) in Canada to patients from other countries like the U.S. We will generally provide assistance in Canada when:

  • the care was provided in Canada
  • the medico-legal issue arises in Canada
  • the patient presented with urgent and/or emergent health issues
  • reasonable efforts were made to have the patient sign the CMPA’s Governing Law and Jurisdiction Agreement
  • the non-resident came to Canada for reasons other than to obtain medical care and unexpectedly developed a medical problem.

The CMPA is structured to provide assistance in Canada, not in other jurisdictions, such as the U.S. If a matter is brought against a member in the U.S., the member is unlikely to be eligible for our assistance. We therefore encourage members to consider whether they need to obtain additional liability protection for medico-legal matters brought in the U.S if they are providing abortion services to American patients coming to Canada.

Q. Who is considered a non-resident of Canada?

For the purposes of determining eligibility for our assistance, a non-resident is:

  • an individual who is ordinarily a resident outside of Canada
  • an individual who is not living in Canada, and has never lived in Canada
  • an individual who has been residing outside of Canada for a number of years, and may have a residence, career, or family in another country
  • an individual who ordinarily resides outside of Canada but who comes to Canada for vacation or work for temporary periods of time.

Q. Who is a resident of Canada?

An individual who lives in Canada on a full-time basis is generally considered to be a resident of Canada. Typically, individuals who do not live in Canada for 12 months of the year are not considered residents; however, there are some circumstances in which they would be considered residents. An example would be an individual enrolled full-time in a recognized Canadian educational institution. Please see Treating non-residents of Canada for additional information. If you have questions about the residency status of a potential patient, please contact the CMPA for guidance. 

Q. Why can’t the CMPA provide support for complaints or lawsuits brought from outside Canada?

As a mutual defense organization, our mandate is to provide medico-legal defense, including defending civil actions and criminal charges, for patient care issues that arise from the practice of medicine in Canada. Assisting with medico-legal matters that arise outside of Canada is particularly complex, especially in the U.S. where each of the 50 states has its own civil and criminal law systems as well as distinct legislation and regulations.

Q. Did the CMPA just make the decision not to support medico-legal issues outside of Canada?

No. The CMPA has never been structured to assist with medico-legal issues outside of Canada. Our role is to provide assistance to members with medico-legal events that arise in Canada as a result of care delivered in Canada. Read our extent of assistance principles, Treating non-residents of Canada, for further details.

Q. What is the CMPA doing to help protect members who provide abortion services to non-residents from lawsuits brought in the U.S.?

This issue is larger than the CMPA can address on its own. We are actively advocating for the federal, provincial, and territorial governments to work to ensure liability protection for Canadian physicians experiencing medico-legal issues in the U.S. Read our recent letter to the  federal Ministries of Health and Families, Children and Social Development: Advocating to protect members from U.S. medico-legal issues when providing abortions to non-Canadian residents.

Q. Is there a risk of being sued or facing criminal charges in the U.S. for services provided in Canada?

Unfortunately, this is a reality in light of the current U.S. medico-legal environment. American patients or family members may choose to commence a legal action in the U.S. following an abortion provided in Canada. In such circumstances, it would be up to the U.S. court to determine whether it asserts jurisdiction for the dispute. We encourage all members to take reasonable steps to have their non-resident patients sign the CMPA’s Governing Law and Jurisdiction Agreement. This document increases the likelihood that a medico-legal matter will be brought before Canadian courts – where members are eligible for CMPA support.

The CMPA is also aware that some U.S. states are contemplating or have enacted legislation that could allow for charges against healthcare providers who provide abortions to citizens out of the state (even where the care is delivered outside of the state). Therefore, physicians in Canada who provide abortions for U.S. citizens from states where abortion is restricted could be subject to criminal charges/civil actions in the U.S.

Q. Are there risks associated with prescribing abortion medications to non-residents?

There is an increased risk of medico-legal difficulties arising outside of Canada when prescribing to non-residents of Canada.

The CMPA will generally extend medico-legal assistance within Canada to members who have treated a non-resident under the following circumstances:

  • the care was provided in Canada
  • the patient presented with urgent and/or emergent health issues (these are generally unexpected medical problems developed during the patient’s visit)
  • reasonable efforts were made to have the patient sign the CMPA’s Governing Law and Jurisdiction Agreement
  • the non-resident came to Canada for reasons other than to obtain medical care and unexpectedly developed a medical problem

Q. Are there risks associated with prescribing abortion medications using virtual care (e.g. internet prescribing and cross-border prescribing)?

Yes. Physicians who sign or co-sign internet prescriptions for persons with whom they have no prior recognized doctor-patient relationship are engaging in an activity that is considered high risk and is unacceptable by provincial and territorial medical regulatory authority (College) standards.

The CMPA views the inappropriate signing or co-signing over telehealth/virtual care or cross-border prescriptions for persons with whom they have no prior recognized doctor-patient relationship as outside the professional practice of medicine in Canada. Additionally, the CMPA will generally not assist with medico-legal issues (whether inside or outside Canada) arising from this activity.

Even in cases where there is an established doctor-patient relationship, prescribing to non-residents using telehealth/virtual care increases the medico-legal risk that a matter may arise outside of Canada. In these circumstances, CMPA assistance is generally not available.

Read Prescribing for non-residents: Know your risks, Prescribing to non-patients a risky activity, and Treating non-residents of Canada for more details

Q. What can members do to decrease their medico-legal risk?

To help you mitigate your risk, we encourage all members to make reasonable efforts to have the Governing Law and Jurisdiction Agreement form signed before providing treatment to a non-resident patient. This agreement increases the likelihood that a matter will be brought in Canada, where CMPA is able to protect and support you.

Patients or family members may choose to bring actions in the U.S. for abortions provided in Canada. Actions can be brought by patients and their families who reside in states with abortion restrictions and states with no abortion restrictions. Further, some American states are contemplating legislation that would allow for criminal charges and civil legal actions to be brought against healthcare providers who provide abortions to citizens out of the state. This increases the potential for legal proceedings outside of Canada.

As such, we encourage all members who provide abortion services to non-residents to consider investing in additional U.S. medical liability protection for matters which may result from performing abortions in Canada. However, please be aware that medical liability providers in the U.S may not provide protection for criminal charges in the U.S. The CMPA does support members facing criminal charges, as appropriate, as long as the charges arise in Canada.

We know this issue is distressing for many of our members. We will continue to do everything we can to support physicians who wish to provide abortion services to U.S. patients – within our mission and mandate – including sharing strategies to mitigate risk and protecting members within Canada. 

If you have any questions, please consider signing in to our member portal and requesting time to speak to a physician advisor, or call us at us at 1-800-267-6522 (in Ottawa area: 613-725-2000) to schedule a call.


DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.