Fredericton, N.B. – Henry Morgentaler won another victory when the Court of Queen’s Bench declared unconstitutional the New Brunswick’s 1985 laws prohibiting abortions outside hospitals.
However, Premier Frank McKenna’s provincial Liberals have decided to appeal the Sept. 14 decision.
Mr. Justice Ronald Stevenson ruled that the measures in the 1985 legislation reflect criminal laws, intended to limit abortions. Since provinces have no power to enact criminal law, the legislation was ruled unconstitutional.
“The only purpose of the legislation was to prohibit the establishment of free standing abortion clinics, and particularly the establishment of such a clinic by Dr. Morgentaler,” he wrote.
The ruling came as a severe disappointment to N.B. Right to Life.
Previously, they had been denied interventor status in the case against Morgentaler.
But McKenna’s promise to give Morgentaler “the fight of his life,” had generated a widespread belief that the government was genuinely determined to fight the use of abortion as birth control, and the proliferation of clinics.
“Yet I knew full well that our government had its own agenda. We should have appealed the decision which denied us interventor status,” says George Gilmore, head of N.B. Right to Life.
Believing the government would argue to justify the law based on health related concerns, RTL offered to provide information that would bolster the government arguments.
“We understood that it would be welcome,” explained Gilmore.
At the last moment, Gilmore learned that their evidence was not going to be used at all.
“During the hearing, it became my strong impression that the government lawyers didn’t do their homework well. They provided no evidence that the law was justified by concerns for health. Their argument was based on the grounds of jurisdiction, a feeble effort to win, it seemed to me,” says Gilmore.
Ironically, he notes, several years ago the same players, in the same roles, were fighting a different abortion battle.
Then, Morgentaler’s lawyer Eugene Mockler argued that access to abortion in Morgentaler’s clinics was medically necessary for New Brunswick women.
On this occasion, Judge Stevenson seemed to bend over backwards to give the government lawyers every opportunity to bring in health arguments.
“I sat there in the courtroom holding our thick files of evidence indicating that government efforts to exercise control over abortion were in the best health interests of women. I didn’t hear a single word to indicate that there is any awareness anywhere in the world that the health of women is affected by abortion,” recalls Gilmore.
He feels that the narrow case presented by the government gave the judge the opportunity to find that the law was written specifically “to suppress or punish what members of the government and Legislative Assembly perceived to be the socially undesirable conduct of abortion.”
Now that the government is appealing the case, Gilmore is again considering applying for interventor status at the Appeals Court level. But he is worried about costs.
“Last summer’s effort used up most of our resources. Donations for this new effort are urgently needed.