Dr. Henry Morgentaler won another legal battle against the New Brunswick government on Thursday when the Court of Appeal ruled he could sue the province over its refusal to fund abortions at his Fredericton clinic. (Canadian Press)

Seven years after Dr. Henry Morgentaler launched his legal challenge against the New Brunswick government, an employee at his abortion clinic in Fredericton says she thinks the province is deliberately stalling the clinic's court case.

Morgentaler wants medicare to pay the $750 fee for each abortion in his Fredericton clinic, and last week the New Brunswick Court of Appeal cleared another hurdle that the province erected to block the court challenge.

Peggy Cooke, who works at the clinic, hopes the province will stop stalling the legal process.

"So I think they're kind of waiting for him to give up and waiting for him to be incapable of doing it anymore," she said.

Morgentaler is 86 years old and there have been reports his health has been declining.

Morgentaler's name is on the lawsuit. His death would force another plaintiff to restart the legal process.

As Cooke points out, the reason Morgentaler is suing is because no woman has been willing to take on the provincial government.

"There's so much stigma with abortion, and secondly the money is a huge problem. It costs thousands and thousands of dollars to do this," Cooke said.

Province considering appeal to Supreme Court

On Friday, Attorney General T.J. Burke told reporters that the province is still reviewing the case and weighing its options.

Burke said the province may still seek leave to appeal that ruling to the Supreme Court of Canada.

"It's a complex issue, but it's an issue we're prepared to look at, to deal with if we find it appropriate to do so," Burke said on Friday.

The Court of Appeal's ruling was unanimous, so the Supreme Court of Canada would only hear the appeal if it considered the issues to be of national importance.

The province's argument that Morgentaler couldn't sue on the issue because it affects women, not him, was rejected by a Court of Queen's Bench judge in January.

And on Thursday, when the Court of Appeal dismissed the same argument, Chief Justice Ernest Drapeau said it 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."