si-nb-morgentaler-clinic-22

Dr. Henry Morgentaler has been fighting to get the province to pay for abortions at his Fredericton clinic since 2002. ((CBC))

A New Brunswick judge has reserved decision on a lengthy court battle about the province's abortion policy.

The provincial government is asking for a judicial review of a Labour and Employment Board ruling that deals with access to abortions.

The case dates back to 2008 when a female doctor filed a complaint with the Human Rights Commission, claiming that that the province's policy, which requires permission from two doctors for an abortion to be performed in a hospital, is discriminatory and prevents her from giving what she calls essential medical care.

The commission referred the complaint of the doctor, who is not identified for safety reasons, to the Labour and Employment Board.

The board didn't believe the doctor's claim of discrimination was valid because she was only acting on behalf of her patients, but it did find merit in her complaint that the abortion policy restricts her ability to give proper medical advice and care.

The case was set to proceed to a full hearing with a board of inquiry, but is being challenged in the Court of Queen's Bench by the province.

On Tuesday, the province argued that the labour board's decision should be dismissed because it didn't have jurisdiction.

The Human Rights Commission countered that the Human Rights Act must be given great leeway to hear complaints because it allows more people to come forward.

If Justice Paulette Garnette rules the labour board decision is correct, then it could pave the way for a full hearing on the abortion policy.

If not, it's unclear if the Human Rights Commission would go ahead with an inquiry.

As it stands, the provincial government only pays for an abortion performed in a hospital and a woman must have two doctors certify that it's medically necessary.

The Department of Health's controversial policy is at the centre of an ongoing lawsuit, which was filed by Dr. Henry Morgentaler, Canada's leading abortion activist.

Morgentaler, who runs an abortion clinic in downtown Fredericton, has been fighting the policy since 2002, trying to force Medicare to pay for abortions at his clinic.

Women who have abortions at Morgentaler's clinic pay the $750 fee themselves.

In 2009, the New Brunswick government lost its bid to halt Morgentaler's lawsuit. The provincial government had argued that Morgentaler did not have legal standing to sue over the abortion law because, unlike women who have abortions, he was not directly affected.