Court hears appeal in Morgentaler's fight against N.B. government

The outcome of Dr. Henry Morgentaler's latest fight to force the New Brunswick government to pay for the costs of abortions at his Fredericton clinic is now in the hands of the province's Court of Appeal.

A hearing concluded Tuesday afternoon with the three judges reserving decision on the controversial case. The New Brunswick Court of Appeal heard an appeal from the provincial government, which is trying to block the abortion activist from suing the province in a dispute that goes back years and involves several different levels of government.

"I accuse the government of New Brunswick of being sexist, male chauvinist, of victimizing and oppressing women," Morgentaler said in 2002 when he announced his lawsuit.

Morgentaler wants medicare to pay for abortions in his clinic while the province says it only has to pay for abortions approved by two physicians and performed in hospitals. Currently, women pay the $750 fee at Morgentaler's clinic themselves.

The province said in court filings that it would argue Morgentaler couldn't sue on the issue because it affects women, not him. If the provincial government wins, it would effectively end Morgentaler's case.

Chief Justice Ernest Drapeau, one of the three judges hearing the province's appeal, sounded skeptical in court on Tuesday in an exchange with government lawyer Nancy Forbes over the province's legal assertion that the case should be launched by a woman.

"The more effective way to bring this forward is by a woman who has obtained the services of the respondent's clinic and paid for those services herself," Forbes said.

"She'd have to be a very wealthy woman, wouldn't she? You're asking a woman to find the funds to fuel a complex and difficult litigation when Dr. Morgentaler comes before the courts and says, 'I will use my own funds,' " Drapeau said.

The legal battle began when Morgentaler filed a pre-emptive motion asking the court to rule he did have standing to sue even though he was not a woman. He won at the trial level last summer, and the province appealed.

System should make litigation easier: judge

Drapeau said during the hearing on Tuesday that the legal system ought to make it easier for cases to get to court.

"The modern rules are, the spirit of them is, this: let's be part of the solution, not part of the problem," Drapeau said. "If the resolution of an issue can save people money and time, let's offer the litigants a helping hand."

For the first time in the court's history, the proceedings were streamed live to the internet, on the CBC's New Brunswick website.

Michael Bray, the registrar of the court, said the decision to allow the CBC to stream the court testimony live on the internet allows people to watch the courts at their convenience.

"It's the idea of access to justice. Courts under most situations are always open to the public. However, given the scheduling and the timetables, these hearings very often happen at a time when the public are not able to attend," Bray said.

"This gives them a means that the public who are interested in a particular proceeding can view it and hear it at their convenience."