By Benjamin Shingler

Fredericton, NB, Aug. 19, 2009 – The province will not pursue an appeal with the Supreme Court of Canada in its ongoing legal battle with Dr. Henry Morgentaler over public funding of abortions. Morgentaler is suing the province, arguing on behalf of women that the government should have to pay for abortions performed at his Fredericton clinic.

The New Brunswick government has disputed Morgentaler’s right to represent women in a lawsuit, but has lost a court challenge and a subsequent appeal on the issue. A Court of Queen’s Bench ruling gave Morgentaler standing to bring a lawsuit on behalf of women seeking to terminate a pregnancy. In May, the New Brunswick Court of Appeal dismissed the province’s appeal of the ruling.

“The position of the Province of New Brunswick has not changed in respect to this issue,” Health Minister Mary Schryer said in a statement Tuesday. Schryer declined to comment further, saying the case was before the courts.

New Brunswick is the only province in Canada that doesn’t pay for abortions in private clinics.

Court of Queens Bench Justice Paulette Garnett ruled it made sense for Morgentaler to represent a public interest with the lawsuit because women who have had, or could have, abortions couldn’t mount such a legal challenge or would be reluctant to take such a stand publicly.

Hundreds of women pay out of their own pockets for procedures at Morgentaler’s clinic in Fredericton at a cost believed to be between $500 and $750 per procedure, depending on how far along a woman is in her pregnancy.

In its decision issued in May, the Court of Appeal was unable to find “even a hint of reversible error” and dismissed the province’s appeal. Furthermore, it ordered the province to pay costs of $5,000 to Morgentaler. The province had argued in its appeal that Garnett didn’t have the inherent jurisdiction to grant Morgentaler public-interest standing in the lawsuit as per the Rules of Court. Court of Appeal Chief Justice Ernest Drapeau wrote in the decision that the province’s arguments were devoid of merit.(See CCRL Civil Rights, Spring, 2009.)

© New Brunswick Telegraph-Journal – Aug. 19, 2009