The Government of New Brunswick: Fighting Women's Rights

 

Following the 1988 Supreme Court of Canada ruling, the New Brunswick government continued to deny funding for abortions. Dr. Morgentaler won a lawsuit against the province after they refused to cover the costs of abortions of New Brunswick women in the Montreal Morgentaler Clinic. Despite a court order, the province never covered the associated costs.

 

With the sole intention of upholding anti-choice agendas, the New Brunswick Minister of Health passed a law in 1989 that outlawed abortions performed outside of a hospital, as well as revised the New Brunswick Medical Services Payment Act to restrict funded abortions to hospitals.

 

A similarly restrictive law and payment act was struck down in Nova Scotia by the Supreme Court of Canada in 1993, deeming that legislation served no medical purpose. In response, Dr. Morgentaler attempted to have the New Brunswick Court of Queen’s Bench abolish the Province’s legal blockade. That 1994 challenge was successful, but only lifted the ban on abortions outside of a hospital setting (i.e., in a private clinic) and not the lack of provincial funding to cover the costs associated with an abortion. NB’s Medical Services Payment Act was quickly amended to included section 2.01:

 

“Notwithstanding any other provision of this Act, the medical services plan shall not provide payment for (…) entitled services furnished in a private hospital facility in the Province”.

 

Together, this resulted in a lack of funding for abortions outside hospitals.

 

Despite the Government of New Brunswick’s dismissal of federal health mandates and noting a need for an accessible and compassionate abortion facility in New Brunswick, Morgentaler opened the Fredericton clinic in June of 1994. The legal obstructions set in place by the New Brunswick government required all obtaining the procedure to personally cover the costs, estimated at $700-850 per procedure (in today’s dollars). This does not take into account any travel or accommodations costs if commuting from other areas of the province or Prince Edward Island, where there are no abortion facilities and whose residents account for 10% of abortions performed yearly at the clinic.

 

Further Reading: Prof. Jula Hughes (UNB law): The Closure of the Morgentaler Clinic and the Rule of Law in New Brunswick

 

Dr. Morgentaler vs. the Government of New Brunswick

Over the next decade after opening the Fredericton Clinic, Dr. Morgentaler repeatedly urged both the provincial government and the federal government to uphold the Canada Health Act to allow public funding and safe access to abortions. While requests to revoke the unlawful abortion restrictions in New Brunswick were ignored by the provincial government, intervention by the Liberal federal government in the early 2000’s seemed promising. Although the Province claimed the procedure would result in “unnecessary financial burden[s]”, the federal government initiated the conversation, threatened the withholding of transfer payments, and eventually commenced dispute avoidance resolution processes with the Province in 2005 in the hopes of encouraging public funding of procedures conducted at the Fredericton clinic. 

 

With the introduction of a new Conservative federal government in 2006, the provincial government’s complete disregard for upholding reproductive choice as mandated by federal legislation was considered ‘off the radar’ by the new Conservative federal Health Minister. 

 

In 2002, Dr. Morgentaler commenced a lawsuit against the Government of New Brunswick, challenging section 2.01 of the Medical Services Payment Act and Schedule 2 (a.1) of Regulation 84-20 as restrictive and unlawful. The Province challenged the standing of Dr. Morgentaler on the basis that he was a man and not in need of an abortion – a strategic ploy in hopes of drawing out the legal process and avoiding the inevitable decision that would be found in Morgentaler’s favour. It was not until 2009 that the New Brunswick Court of Appeal ruled that Dr. Morgentaler, as a physician, did in fact have standing in the court. However, after 7 years in the New Brunswick court system, Dr. Morgentaler had spent approximately one million dollars on legal fees. This, on top of his ailing health and $100,000 worth of repair costs associated with a 2008 flood, had taken a heavy toll.

 

Sadly, Dr. Morgentaler passed away on May 29th, 2013, and his estate was unable to continue funding the lawsuit. It was officially dropped by his family in April 2014. 

 

Abortion access continues to deteriorate in New Brunswick, and public funding continues to be denied. 

 

Further reading:

 

• January 1995 Letter from Health Minister Diane Marleau to provincial and territorial Health Ministers instructing them to fund private clinics that deliver medically necessary services

• October 1995 letter from Health Minister Diane Marleau reminding provinces to fund private clinics that deliver medically required services

• October 1995 letter from Dr. Henry Morgentaler to New Brunswick Premier Frank McKenna

 

 

Abortion in Canada

Prior to the aptly nicknamed “Morgentaler Decision” of 1988 that revolutionized Canadian reproductive liberties, abortion remained a criminalized procedure with certain exceptions, a similar scenario throughout much of the world. 

 

The first piece of Canadian anti-abortion legislation was introduced in 1892, which criminalized both the procedure as well as various forms of contraceptives. It was not for another 77 years that the federal government under the leadership of Pierre Trudeau decriminalized contraceptives as well as abortion under “extenuating circumstances” and following approval from a “Therapeutic Abortion Committee” (TAC) comprised of three doctors. 

 

Despite this important initial victory for the national pro-choice movement, abortion still remained an inaccessible and legally prohibited reproductive option for the majority of Canadians.

 

The Legalization of Abortion in Canada

Dr. Henry Morgentaler, physician and human rights proponent, spent much of his medical career advocating for the legalization, accessibility, and funding of abortions at the federal and provincial level. Despite numerous legal altercations and anti-choice backlash, Morgentaler remained committed in the role of reproductive activist. He opened clinics in Montreal and Toronto in order to provide abortion services despite legal limitations and continued to put pressure on the federal government to amend the hazardous law.

 

In 1988, the Supreme Court of Canada overturned the anti-choice legislation with the Morgentaler Decision, arguing that abortion restrictions are in direct violation of a woman’s “life, liberty, and security of the person”, an encroachment of Section 7 of the Canada Charter of Rights and Freedoms. Without any legal constraints, Canada became one of the first and only countries where abortion is not only entirely lawful but deemed comparable to other medical procedures.

 

Further Reading: Full history of Dr. Morgentaler's struggle and ultimate victory.
 

The Canada Health Act & “Medically Necessary” Services

Under the Canada Health Act of 1984, federally-derived legislation that outlines the standards for public healthcare, it is the responsibility of each Province to categorize and fund “medically necessary” procedures in order to be eligible for federal healthcare funding. Medically necessity is broadly defined by the Act, but includes “hospital services” provided by medical practitioners that are required to maintain health, prevent disease, or diagnose and treat an injury. A “hospital”, in this case, is any location where “medically necessary” procedures that utilize medical equipment and supplies are performed – including clinics.

 

There is no direct mention of abortion in the Canada Health Act. However, as abortion falls within this “medically necessary” description as deemed by every province and territory, it is mandated as a provincially funded procedure. All private abortion clinics in Canada are fully funded through this ruling – the sole exception was the Morgentaler Clinic in Fredericton, New Brunswick.