New Brunswick

Civil liberties group prepared to sue New Brunswick over access to abortion

The Canadian Civil Liberties Association has warned that it will sue the New Brunswick government if abortion funding isn't changed.

Province is asked to repeal law that prevents funding outside hospitals

Clinic 554, the only location in the province to offer surgical abortions outside a hospital, closed its doors on Sept. 30. (CBC)

Citizens shouldn't have to sue their own government to ensure the right to health-care services, says the doctor who runs Fredericton's abortion clinic. 

"In a perfect world, you don't have to sue your government to either respect the Canada Health Act or simply provide equal access to health care," said Dr. Adrian Edgar. 

But the New Brunswick government's rigid refusal to fund abortions outside of hospitals has left civil libertarians no choice but to start legal action, said Noa Mendelsohn Aviv of the Canadian Civil Liberties Association. 

The organization sent a letter to the New Brunswick government Wednesday, promising legal action if the government doesn't repeal the law that only allows for funding for abortions done in hospitals. 

Mendelsohn Aviv said she doesn't believe the government will repeal the law without a fight.

"Although we started it with a letter and we'd like to end it with the letter ... we are going to see it through. We have the resources. We have the support. We have the team. We have the knowledge. And we intend to pursue this all the way through until an unnecessary, unjustifiable restriction on access to abortion is removed or repealed," said Mendelsohn Aviv, the association's equality program director.

She said New Brunswick continues to ignore the constitutional rights of women, girls and trans individuals. 

Kerri Froc, an associate law professor at the University of New Brunswick, who is helping the Canadian Civil Liberties Association in its action against the government, said it's "totally ridiculous" to have to resort to a lawsuit to get the government to make changes that every other province already has. 

"It shouldn't have to come to this," she said. 

"I just don't agree with the government spending our hard-earned tax dollars to go and try to litigate this so that people that have been denied health care are fighting against a government using their own money, essentially," said Froc. 

Kerri Froc, an associate law professor at the University of New Brunswick, at a gathering last month to protest the closing of Clinic 554. (Submitted by Kerri Froc)

The province has steadfastly been against funding abortions since the 1980s, when Dr. Henry Morgentaler first announced that he would set up an abortion clinic in Fredericton. 

Through a series of court battles and constitutional challenges, the province eventually began funding abortions done in hospitals. 

Currently, three hospitals — two in Moncton and one in Bathurst — perform surgical abortions. 

Clinic 554 in Fredericton continues to perform abortions, although "that could end any day," said Edgar, since they're not funded by Medicare. 

Edgar said the building is for sale, but he's still willing to talk to government officials about the future of the facility. He says no one has ever called him back — not the premier, the health minister, nor the province's chief medical officer of health. 

The building that houses Clinic 554 until Sept. 30 is up for sale. (Mike Heenan/CBC)

He said he sent at least 30 messages to the former health minister and four to the new minister and hasn't received anything in return. 

Edgar has also scaled back his family medicine practice to only the "most vulnerable patients," putting thousands of people back on the waiting list for a family doctor.  

"There are some services that we could reintroduce or try to maintain, especially the ones that are so unique. The government really has to respond to any of my attempts to meet with them. And they just simply don't."

That leaves three hospitals that perform surgical abortions — and now two of them are practically shut down after the Moncton health region was returned to the orange phase. People are advised not to travel into or out of those areas, which means access to abortions is even further limited, said Froc. 

"New Brunswick's restrictions on abortions are insidious and create undue hardship on women, girls and trans individuals … With those three hospitals in two cities, 90 per cent of New Brunswickers do not have adequate abortion services in their local community," said Mendelsohn Aviv. 

"We're continuing Dr. Morgentaler's fight, and are committed to seeing this through," she said. 

While not optimistic, Edgar is hopeful that the government won't continue to fight a legal battle that governments all across Canada have conceded in recent decades. 

"Well, my hope is that the government in New Brunswick will just take a moment to reflect on what there is to gain and what there is to lose by fighting a protracted court battle," said Edgar. 

Froc calls it "a loser of a case." 

Legal history

Mendelsohn Aviv doesn't think the province's initial approach to Morgentaler will hold much legal weight if the province decides to fight this time around. 

At the time, Morgentaler applied for public interest standing in the case, but the province argued that only a woman directly affected by the restrictions could challenge their constitutionality. 

In 2009, the Court of Appeal of New Brunswick rejected the province's argument and granted Morgentaler public-interest standing. 

The decision was not appealed, but Morgentaler died before the challenge could proceed. 

Mendelsohn Aviv says the law on public interest standing has evolved since that time and she doesn't think the New Brunswick government would get very far with it today. 

She said courts understand that average citizens don't have the time or the resources to launch protracted legal battles on constitutional issues. 

"And so there is more room for public interest groups to advance causes on behalf of the many people who are affected in the public," said Mendelsohn Aviv. 

And that's where groups like hers come in. 

When asked for an interview with Premier Blaine Higgs on Thursday, a spokesperson for the province responded by email on Friday morning, saying, "We do not comment on potential legal matters."

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