henry-morgentaler-cp-613913

Dr. Henry Morgentaler was named to the Order of Canada in 2008. ((J.P. Moczulski/Canadian Press))

The New Brunswick Court of Appeal paved the way Thursday for Dr. Henry Morgentaler to sue the province for refusing to pay for abortions at his private clinic in Fredericton.

"I accuse the government of New Brunswick of being sexist, male chauvinist, of victimizing and oppressing women," Morgentaler said in 2002 when he announced his lawsuit.

Morgentaler wants medicare to pay for abortions at his clinic, while the province says it only has to pay for abortions approved by two physicians and performed in hospitals. Currently, women pay the $750 fee at Morgentaler's clinic themselves.

The province argued Morgentaler couldn't sue on the issue because it affects women, not him. In January, after a judge ruled in Morgentaler's favour, the province appealed the decision. On Thursday, three appeal judges also ruled in Morgentaler's favour.

The province had argued it would be better if the lawsuit was launched by a woman who had been forced to pay for a clinic abortion.

Chief Justice Ernest Drapeau said that argument doesn't pass muster. None of the many women who have had abortions at Morgentaler's Fredericton clinic in the past 15 years has come forward to file a lawsuit, he noted.

"That state of affairs is likely the product of two factors operating in tandem: the prohibitive cost of litigation and the intimate and private nature [of choosing to have an abortion]," wrote Drapeau.

"Dr. Morgentaler brings to the judicial arena financial resources and legal expertise which will undoubtedly help level the playing field and greatly improves the chances that any judicial decision on the merits is fully informed both factually and legally."

Morgentaler's long history of legal battles over abortion means his lawsuit is the only reasonable way to resolve the issue in court, he added.

The province could still appeal to the Supreme Court. If not, Thursday's decision would pave the way for Morgentaler's lawsuit to finally go ahead.