The Canadian Civil Liberties Association says it has the right to sue the New Brunswick government for lack of abortion access, partly because the premier made it a legal issue in his public comments.
On Monday, lawyers for the association and the province appeared before Chief Justice Tracey DeWare of the Court of Queen's Bench to argue whether the association has "public interest standing" to sue the province for what it sees as unconstitutional abortion laws.
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.
Premier Blaine Higgs previously said he's been "clearly advised by our legal professionals" that the province is "certainly providing the access that's required" by offering abortions in three hospitals, and anyone who disagreed should take the province to court.
"The mechanisms if anyone believes we're not following is to challenge that, and that will go through the court system and a ruling will be made," he said on the campaign trail last fall.
In its written submissions, the association said it "has taken the Province up on its invitation."
Before the lawsuit can continue the association must prove it has public-interest standing to bring this issue to court on behalf of anyone affected.
Andrew Bernstein, one of the lawyers representing the group, said to get this standing three things must be proved: that the issue is "justiciable," meaning a legal one subject to trial, that the association has a genuine interest in the issue, and that a lawsuit is the best avenue to address it.
Bernstein said Higgs's comments when challenged on this issue partly fulfil the first requirement.
"We know where the premier of New Brunswick stands on this issue," he said. "We appreciate that Premier Higgs says if the federal government thinks that New Brunswick is violating the Canada Health Act it can just take the province to court, so at least a suggestion that the matter is justiciable."
Provincial regulation at issue
Surgical abortion services are now offered at three hospitals, two in Moncton and one in Bathurst.
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.
Reproductive rights activists have been lobbying the government to remove that line and extend funding to abortion clinics, with a focus on the province's only clinic that provided abortions — Clinic 554 in Fredericton.
The doctor heading that clinic said he had to shut down because of the lack of funding, putting hundreds of patients back on the primary-care-provider waiting list.
Public interest standing
Bernstein said there is public interest at stake, partly because people who are affected by inadequate abortion access are not always able to bring the issue to court themselves. He said socioeconomic reasons, social stigma and the sensitive timelines around abortions and pregnancy are all reasons that may stop someone from taking the matter to court.
"If [abortion] is not accessible because of unconstitutional regulation, our position is that that's public interest," he told the court.
"We have this real, legitimate and enduring problem of finding plaintiffs who want to put themselves out there."
On behalf of the attorney general, lawyer Isabel Lavoie Daigle said health-care funding is a governmental matter, and the courts should not be involved in whether the province is violating federal legislation.
"The Canada Health Act is a federal funding statute," she said. "We can't turn to the court to provide a remedy."
DeWare asked if a citizen or an organization has an issue with constitutionality of health regulation, how else can they get a remedy other than through the court?
"If not here, then how?" she asked.
"I can't answer that questions, it's definitely a difficult question," Daigle said. "But you have to think about if this is a reasonable place for the courts, and it's not."
DeWare said whether the case will go forward is not a decision to be made "off the cuff," and she will make a decision before end of June if possible.
"I will treat it as a priority," she said.