In a 2-1 decision, the New Brunswick Court of Appeal ruled January 23, that the province cannot prohibit Henry Morgentaler from operating a free standing abortion clinic.

Chief Justice William Hoyt and Mr. Justice Lewis Auyles stated that the existing provincial legislation is not about professional standards and the quality of health care.  Rather it deals with conduct that comes under criminal law and is not within provincial jurisdiction.

In his dissenting opinion, Mr. Justice Robert Rice wrote that the legislation aims to prevent the criminal practice of medicine, and the prevention of abortion at free-standing clinics is incidental to the legislation’s primary purpose.  “It is legislation with reference to both the practice of medicine and the prevention of incidence of crime, both of which are valid provincial objects,” he stated.

In March of 1994, the provincial College of Physicians and Surgeons had granted Henry Morgentaler a medical license to practice in the province.  That license was restricted in July, at the government’s request, preventing him from operating at his clinic.

At that point, Morgentaler chose court action.  The lower court ruled in his favour in September, and his clinic resumed abortions.  When the government appealed, NB Right to Life was an intervenor.

The government now has 60 days to decide if it will take the issue to the Supreme Court.  Morgentaler’s spokespersons are confident of success in any event, and say the next step is to get the cost of abortions at free standing clinics covered by medicare.

Speaking for NB Right to Life, Twila and George Gilmore said, “Yes, we’re disappointed because we did our best and we fully expected it to turn out well this time, but we can’t be discouraged, because we know that victory is in God’s hands, and He can bring it about any time He desires.  Meantime, we regard ourselves as very privileged to be allowed to work to save the unborn.”