Abortionist Henry Morgentaler and his lawyers were in the Supreme Court of Canada on February 4, attempting to win round three against the province of Nova Scotia. Charged with illegally performing abortions under the province’s Medical Services Act, Morgentaler hopes the Supreme Court will uphold the decision of the two lower courts in Nova Scotia that the Medical Services Act is unconstitutional. The province has appealed those ruling to the Supreme Court of Canada.

Nova Scotia was supported in its appeal by the province of New Brunswick, which has legislation similar to Nova Scotia’s, and REAL Women of Canada.  CARAL (Canadian Abortion Rights Action League) and the Attorney General of Canada appeared as interveners for Morgentaler.

The case dated back to 1989 when the province, with the knowledge that Morgentaler intended to open an abortion clinic in Halifax, passed legislation entitled, An Act to Restrict the Privatization of Medical Services, known simply as the Medical services Act. The Act prohibited certain medical services from being performed, other than in the province’s accredited hospitals. Abortion was one of nine prohibited medical services.

Despite the legislation, Morgentaler opened the Halifax abortuary, and on October26 and November 2 of 1989 illegally performed 14 abortions. He was charged under the Medical Services Act, and the province was immediately granted an injunction prohibiting further abortions at the “clinic.”

At trial, Morgentaler admitted performing the abortions, but challenged the constitutional validity of the Medical Services Act. The court found that the Act and its regulations were “in pith and substance criminal law,” and therefore outside of the jurisdiction of the provincial Legislature. The court based its finding on its view that “the prohibition of abortion has been and remains criminal law in this country,” and that the legislation was “created to keep free-standing abortion clinics, and in particular Dr. Morgentaler, out of Nova Scotia.”

The province appealed this decision, however the appeal court agreed with the lower court by a majority of four to one. The province of Nova Scotia subsequently appealed this decision to the Supreme Court of Canada.

The case appears to rest on the purpose of the legislation and the circumstances surrounding its enactment. Simply put, if the purpose of the Medical Services Act is to restrict abortion for moral reasons, it is unconstitutional. If the purpose is to regulate abortion for health reasons related to cost, for example, it would be constitutional.

Morgentaler’s lawyers argue that the province of Nova Scotia is exercising a moral judgment against abortion, while the province argues that it is determining health care policy with regard to the privatization of services. In legalese, Morgentaler argues that the legislation is “colourable”, in other words it attempts to do something which the province is prohibited from doing directly. Nova Scotia contends that it is simply regulating “where” abortions are performed: “Shifting the place where abortions may be performed is not criminalizing abortions or prohibiting a perceived public evil. Abortions continue to be freely and readily available in  [Nova Scotia].”

During the Supreme Court hearing, the nine Justices grilled lawyers from both sides of the case. A decision is expected within three to six months.