Judge gives civil liberties group green light to sue N.B. over abortion access

·3 min read
A rally in support of Clinic 554 was held outside the Department of Health office in downtown Fredericton in 2019. The clinic, which provided abortion services not covered by Medicare, has shut down, according to its head doctor. (Gary Moore/CBC - image credit)
A rally in support of Clinic 554 was held outside the Department of Health office in downtown Fredericton in 2019. The clinic, which provided abortion services not covered by Medicare, has shut down, according to its head doctor. (Gary Moore/CBC - image credit)

The Canadian Civil Liberties Association has been given the go-ahead to sue New Brunswick over abortion access.

Chief Justice Tracey DeWare of the Court of Queen's Bench decided Tuesday that the association has public-interest standing and is qualified to sue the province.

She also admonished the province for opposing the association's application to have standing.

"The position taken by the province in the face of clear jurisprudence to the contrary was unreasonable," she wrote.

The civil liberties group says New Brunswick is violating both the Canada Health Act and the Charter of Rights and Freedoms by not funding non-hospital abortions. This in turn "limits access to abortion and discriminates against women," non-binary and transgender people, the group says.

During a hearing, lawyers representing the province argued the association should not be granted public-interest standing because health-care funding is a governmental matter, and the courts should not be involved in whether the province is violating federal legislation.

During the 2020 election, Premier Blaine Higgs said if people think he's contravening the Canada Health Act and not providing adequate access to abortion services, they can sue.
During the 2020 election, Premier Blaine Higgs said if people think he's contravening the Canada Health Act and not providing adequate access to abortion services, they can sue.(CBC)

In her decision, DeWare said the association's request is identical to the request of Dr. Henry Morgentaler to sue the province over abortion access in 2009, which was approved.

"With all due respect to the position of the province, it is without merit and given the jurisprudence on point, surprising," DeWare wrote.

She also ordered the province to pay $5,000 in costs to the association.

Abortion Medicare coverage

At issue is Regulation 84-20, which governs New Brunswick Medicare funding. A line in the regulation says surgical abortions done outside a hospital cannot be covered by Medicare.

In New Brunswick, a person must travel to Moncton or Bathurst for a Medicare-funded abortion, because the service is offered at three hospitals in the two cities.

DeWare said the issue of whether that's enough access can be addressed in court, and the civil liberties association has enough experience to bring forward the lawsuit.

"The CCLA has a genuine interest in the issue before the court as well as the capacity to adequately prosecute the action," DeWare wrote. "The CCLA is not 'mere busybodies.'"

The province's lawyers also argued this issue should be brought forward by the people directly affected, rather than an organization. DeWare said that because abortion access is at issue, she does not accept this argument.

"It is not reasonable, nor appropriate, to suggest that the only way an issue can be brought before the courts is by a woman seeking an abortion," she wrote.

No plans to appeal, Higgs says

In its submissions, the CCLA cited Premier Blaine Higgs's own words to support why they should be granted public-interest standing. During the 2020 election, Higgs said if people thought there was inadequate access, they can sue the province.

During the public-interest standing hearing, the lawyers for the province argued the courts should not be involved in deciding matters between provincial and federal governments, such as whether the province is contravening the federal Canada Health Act.

Speaking to reporters Tuesday afternoon, Higgs said he does not see any contradiction between his invitation for opponents to sue, and the Crown's arguments in court.

"The position that the crown was taking was based on not whether it could be challenged or not challenged, but who has the right to challenge," he said.

Higgs said he doesn't believe the province will appeal this decision.

"I haven't had any discussions with the prosecutors in that regard but my own belief would be that we wouldn't [appeal]," he said.