The New Brunswick government is challenging Dr. Henry Morgentaler's right to sue the province over its abortion policy, which only allows medicare coverage for abortions if they are approved by two doctors and performed by a gynecology specialist.
Morgentalerclaims the policy violates the Canada Health Act. He wants public funding for clinic-based abortions, which can be accessed without a referral, and can be performed by a general practitioner instead of a specialist. He operates a private clinic in Fredericton.
As the case opened in a Fredericton courtroom Wednesday, provincial lawyer John Fury told the court Morgentaler doesn't have legal standing to challenge the policy. He said it could be challenged only by a woman who has had an abortion, or a woman who hasn't been able to afford one.
If a potential plaintiff is worried about the stigma of going public, Fury said, the province would agree to grant her anonymity in court.
However, a University of New Brunswick law professor, Jula Hughes, said she is confident Morgentaler will get standing to pursue the lawsuit.
Morgentaler's lawyer Darlene Jamieson said her client should be allowed to take the case forward.
She said he's already won previous legal battles with New Brunswick— and with several other provinces— on the same issues.
She said a ruling that Morgentaler can't sue would end the case, and leave in place a policy that effectively restricts access to the procedure.
Justice Paulette Garnett hasn't set a date for when she will rule on the government's challenge.