New Brunswick

Morgentaler's death puts N.B. abortion lawsuit in limbo

One of the longest and most controversial lawsuits in New Brunswick's history remains up in the air following the death of abortion rights activist Dr. Henry Morgentaler earlier this week.

Tories and Liberals both mum on future of case aimed at forcing medicare to pay

Morgentaler reaction

10 years ago
Duration 1:17
The death of abortion activist Dr. Henry Mortgentaler has left the future of his New Brunswick lawsuit unclear.

The future of Dr. Henry Morgentaler's lawsuit against the New Brunswick government remains unclear two days after the death of the abortion rights activist.

On Wednesday, a department of justice official told CBC News the lawsuit was considered null and void in light of Morgentaler's death.

But on Thursday, department officials would not comment.

CBC News requested an interview with Justice Minister Marie-Claude Blais about what the province's position would be if somebody else applied to the court to carry the suit forward, but was told she had left the legislature.

Morgentaler launched the lawsuit against the province in 2003 to try to force medicare to pay for abortions at his private clinic in Fredericton.

As it stands, New Brunswick only covers abortions approved by two physicians and performed in hospitals.

Morgentaler, the leader of the abortion movement in Canada, died at his home in Toronto on Wednesday at age 90.

Legal experts have said it's not uncommon to have someone named as a substitute after one party in a legal case has died in order to keep the matter alive.

'Henry's work' will continue

Peggy Cooke, of the Abortion Rights Coalition of Canada, believes the 10-year-old case will move forward.

"Certainly Dr. Morgentaler's death doesn't mean that we'll stop fighting the province on this," says Cooke, who worked at the Morgentaler clinic in Fredericton for 3½ years and is now based in Toronto.

"I absolutely think that there is a very strong movement that has sort of risen up to take on Henry’s work," she said.

"Right now, Dr. Morgentaler's family is in mourning, but eventually, I'm sure that they will make a decision and the lawyers will make a decision, and they'll let us know how they want to proceed," said Cooke.

"Either way, whether it's through somehow going forward with the lawsuit, or in some other avenue, that the work will continue."

'The province is ignoring the needs of women, and I would say putting the health of women and the needs of women in the province below, you know, playing politics.'—Peggy Cooke, pro-choice advocate

Cooke said the province has been "very obstructionist" to the idea of rescinding the requirement that women pay out of pocket for abortions at Morgentaler's clinic.

"It's a very frustrating discourse because … the province is ignoring the needs of women, and I would say putting the health of women and the needs of women in the province below, you know, playing politics and trying to play themselves off as sort of neutral on the abortion question, so as not to lose votes," she said.

Morgentaler's lawsuit is one of the longest and most controversial lawsuits in the province's history, but it did not earn a mention in the legislature on Thursday.

Progressive Conservative and Liberal MLAs alike were silent on what happens next in the legal battle.

There was no mention of Morgentaler's death during the 10 minutes set aside for MLAs to recognize people who have died and the Liberal Opposition did not raise any questions during question period.

Liberal health critic Donald Arseneault didn't have much to say on the matter.

"The death of Dr. Morgentaler just happened this week, so we haven't had the opportunity to talk about that, no," he told reporters.

Morgentaler won a Court of Appeal decision in 2009 that gave him the legal standing to represent women seeking abortions in New Brunswick and sue the province over funding.

But the matter has still not come before the courts.