A legal battle between the province of New Brunswick and Henry Morgentaler ended on August 17 when the Supreme Court rejected a provincial application for an appeal hearing.

The lengthy legal battle began in the summer of 1994 when Morgentaler opened an abortuary in Fredericton. The province reacted swiftly and firmly by denying Morgentaler his medical licence and by using a 1985 amendment to the New Brunswick’s Medical Act referring to abortions performed outside of hospital.

In September, 1994, Court of Queen’s bench Justice Ronald Stevenson ruled the 1985 amendment constituted criminal law and therefore outside of the jurisdiction of the province. The province’s Health Minister, Russ King, expressed concern that the Supreme Court’s rejection of the appeal has struck down an important part of the province’s Medical Act. This decision may impact on other policies on access to care, payment and professional relationships. The Minister declined to speculate on any future legislation that might affect the operation of the Morgentaler clinic.

Debbie MacIntryre, a spokesperson for the Fredericton Right to Life, was disappointed with the decision. She had hoped that the courts would hear the appeal. “I felt it unusual…It was not a unanimous decision, so we felt it should have been heard in the Supreme Court.”

George Gilmore, President of New Brunswick’s Right to Life Association, reacted strongly, not only to the Supreme Court decision to reject the request for an appeal hearing, but to reject of his organizations application to intervene at the trial level. “The association was concerned that evidence might not be presented which would directly address the main legal question.

This question was whether or not the 1985 Act was the result of only moral concerns, or whether it was the result of medical concerns, the law would be within provincial jurisdiction and would have been upheld,” he said. In both the Morgentaler vs. Nova Scotia and the recent New Brunswick decisions the courts based their decisions on the argument that provinces may not interfere in areas of criminal law. It is clear that, had the provinces presented serious health concerns of free standing abortion clinics, the rulings may have been upheld.

Gilmore sheds light on the reasons the provinces shoes to ignore these health concerns in their court battles against Henry Morgentaler. “Please understand that the radical defence and the promotion of abortion which we witness is not the result of a quest for good medicine. It is, however, rooted in both a very strong desire to preserve the life-style of the sexually liberated, and in a social/eugenic agenda to promote the extermination of those some perceive as being of less value. Sadly, for our society, these include the poor child, the inconvenient child and the imperfect child.”

The legal battle in New Brunswick is far from over. The province’s Medical Services Payment Act covers abortions performed in approved hospitals. In both Nova Scotia and Prince Edward Island, Morgentaler has sued the provinces for payment. One could expect that he will do the same in New Brunswick.