New Brunswick being sued over abortion access

A national civil liberties group has officially launched a lawsuit aimed at forcing the New Brunswick government to fund abortion services in private clinics.

The Canadian Civil Liberties Association filed the constitutional challenge in Court of Queen's Bench in Fredericton.

"The province is violating women's, girls' and trans people's fundamental right to make their own choices, their right to privacy, to safety and, of course, to equality," Noa Mendelsohn Aviv, the CCLA's director of equality programs, told reporters.

"Today we are marking the beginning of the end."

The lawsuit asks the court to strike down part of Regulation 84-20, which includes non-hospital abortions on a list of services not funded by medicare.

Mendelsohn Aviv said that would pave the way for the province having to fund the service in any clinic that offers it.

The CCLA says including non-hospital abortions on the list violates both the Canada Health Act and the Charter of Rights and Freedoms. The association says it's also outside the province's powers because it effectively criminalizes abortion. Criminal law is a federal jurisdiction.

Health Minister Dorothy Shephard said she would not comment on a case that is before the courts.

"It will go through the process," she said. 

The owner of Clinic 554, the only private clinic providing the service in the province, has been warning for more than a year that it could close because medicare won't fund the procedure there.

During last year's election campaign, Premier Blaine Higgs said he'd been "clearly advised by our legal professionals" that the province is "certainly providing the access that's required" by offering abortions in three hospitals in Moncton and Bathurst.

He said anyone who disagreed should take the province to court, but wouldn't say how the government would defend its legal position. "That's what you'd find out in a hearing."

History of lengthy legal battles

Previous governments have dragged out legal battles over clinic abortions, including a fight that lasted years over whether the previous clinic owner, Dr. Henry Morgentaler, had the legal standing to sue over the issue.

The New Brunswick Court of Appeal eventually ruled that he did, but Morgentaler died before the suit could go ahead.

Mendelsohn Aviv says she expects similar delaying tactics now but said she hopes public support for the suit will persuade Higgs to give in.

"From everything we've seen so far we expect the province to continue fighting, but we are hopeful that they will have a change of heart."

The statement of claim says successive New Brunswick governments have been "politically and principally opposed to providing barrier-free abortion services, particularly in a clinical setting," for decades.

Requiring some women to make appointments within days of finding out they're pregnant, and obligating them to travel to Moncton or Bathurst, infringes on their Charter rights, the CCLA is arguing.

Tobin LeBlanc Haley of Reproductive Justice New Brunswick told reporters those barriers are even more acute during the COVID-19 pandemic and in the wake of recent cuts to inter-city bus service by Maritime Bus.

A series of Progressive Conservative and Liberal governments resisted funding abortions at the clinic and its predecessor, which was opened by Morgentaler in 1994.

In 2014 Premier Brian Gallant repealed part of Regulation 84-20 that required women to get the approval of two doctors for a hospital abortion, but he kept in place the restriction on funding the procedure in clinics.

Last year the federal government said those restrictions violated the Canada Health Act and withheld $140,000 in medicare funding. But Ottawa restored that funding citing COVID-19.

The CCLA is citing the federal determination of a Canada Health Act violation in its legal arguments.

According to the lawsuit, Clinic 554 has done more than 1,000 abortions since it opened in 2015. It charges $750 to $800.

The clinic has been for sale for more than a year.

Clinic director Dr. Adrian Edgar said Thursday the facility is in a "transition phase," still providing abortions while he tries to line up alternate care for other patients, including LGBTQ people and those with addiction issues.

Edgar says the province's approach to his lobbying has changed since Higgs won a majority government last September.

"They've hardened their stance," he said, explaining that he'd been given notice via the New Brunswick ombud that the government will no longer respond to him.

In December, the PC government used its majority in the legislature to gut a Liberal opposition motion calling for funding of abortions at Clinic 554.

They amended the motion so that it called on the government to consult the two regional health authorities on whether the current model violates the Canada Health Act.

"A motion to send this back for study is nothing more than a stall tactic," Mendelsohn Aviv said.

The board of one of the two authorities, Horizon Health, is already on record calling on the province to fund abortion services in non-hospital clinics.

Shephard said the government has had "a conversation" with the health authorities but there is no timeline on when they might have an answer ready.

"COVID right now is taking a lot of our resources, but the question remains and there will be followup."