The closure of the Morgentaler Clinic and the rule of law in New Brunswick

I moved to New Brunswick in 2006 to take up a position as an Assistant Professor at UNB. The first time I had a student sitting in my law school office red-faced with anger and streaming with tears, it was not because of a poor grade or a difficult assignment. It was because that student had been refused a prescription for birth control by a doctor in a walk-in clinic because she was not married and therefore wouldn’t be needing it. The reason she came to speak with me was that I had organized a panel on reproductive rights at the law school. My office had become known as a ‘safe space’ for talking about reproductive health. Such spaces are much needed in a province where considerable portions of the medical establishment seem to be utterly oblivious to the notion that they are in a helping and not in a judging profession. Since then, I have heard from women who were refused paps, women who were refused information about contraception, women who were refused birth control prescriptions, women who were refused referrals for abortions and women who were treated punitively by their doctors after abortions.

It was therefore with a sense of doom that I participated in a press conference this past week, where the Morgentaler Clinic in Fredericton announced that it will be closing by the end of July. The closure will leave the women of New Brunswick and Prince Edward Island without access to clinic-based abortions and with no reliable place for information about reproductive health. There is no hospital on PEI that provides abortions. Two hospitals in New Brunswick provide approximately 400 procedures annually, with waiting periods of three weeks or more. These waiting periods are in addition to the typical wait of two to three weeks for getting to see one’s family doctor should one be so lucky to have one and does not include the time required to find an alternative if one’s doctor turns out to be anti-choice. The Morgentaler Clinic has typically provided about 600 procedures a year. According to the Clinic Manager, about 60 procedures are provided to PEI women annually. Without changes to the law and resources, New Brunswick women will lose 60% of capacity for abortion care, PEI women will lose about 50%. The loss of capacity will chiefly affect the most vulnerable women.

Women in New Brunswick know that they have a right to access abortions. They know that they have a right to funded abortions and they know that elsewhere in the country, Medicare would cover a clinic-based abortion. So why have we had 20 years of clinic abortions without funding? Why are New Brunswick women second-class Canadian citizens? So glad you asked.

The story really begins with the decision of the Supreme Court of Canada in R. v. Morgentaler in 1993. Determined to oppose the implementation of the earlier Morgentaler decision of 1988 and the intent of Dr. Henry Morgentaler to bring safe, accessible abortion care to the maritime provinces, the Nova Scotia government approved regulations and later enacted a law prohibiting abortions outside a hospital as well as a regulation denying insurance coverage for abortions performed outside a hospital.  The province of New Brunswick already had very similar legislation on the books. That law had been enacted after the Province lost a law suit brought by Dr. Morgentaler in 1989 when the Province refused to pay for abortions for New Brunswick women performed at the Montreal Morgentaler Clinic. (Morgentaler v. New Brunswick (Attorney General) 38 Admin. L.R. 280, 98 N.B.R. (2d) 45.) Despite the court order, the procedures were never paid. In 1993, the Supreme Court of Canada held that the analogous Nova Scotia law and regulation were in pith and substance criminal law and ultra vires the province. This was because they did not serve medical purposes, but were designed to restrict abortions as an ostensibly socially undesirable practice which should be suppressed or punished.

Dr. Morgentaler applied to the New Brunswick Court of Queen’s Bench for a declaration of invalidity of the New Brunswick version of the law. Applying the Supreme Court decision of the same year, the New Brunswick Court of Queen’s Bench in 1993 struck down the law and a majority of the New Brunswick Court of Appeal upheld the decision in 1995. The majority stated:

The Nova Scotia legislation attempted to mask its true intent, namely, the prohibition of abortions except in certain circumstances, while the New Brunswick legislation openly prohibits the same conduct. That distinction and the fact that the New Brunswick legislation, unlike the Nova Scotia legislation, was enacted before the Supreme Court of Canada struck down the abortion provisions in the Criminal Code of Canada in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 cannot, in our view, change the true nature of the impugned legislation and its dominant purpose, which is the prohibition of conduct that the Province considers to be socially undesirable.

This decision dealt with the prohibition, but not with the other component found unconstitutional in the Nova Scotia case, the exclusion of abortion from insured services. In relation to this issue, the Supreme Court in 1993 answered the constitutional question as follows:

Is the Medical Services Designation Regulation, N.S. Reg. 152/89, made on the 20th day of July, 1989, pursuant to s. 8 of the Medical Services Act, R.S.N.S. 1989, c. 281, ultra vires the Lieutenant Governor in Council on the ground the Regulation was made pursuant to legislation in relation to criminal law falling within the exclusive legislative jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution Act, 1867?

Answer:  Yes.

In 1989, the Minister of Health had promulgated a revised schedule to the general regulation under the Medical Services Payment Act. It provided:

SCHEDULE 2

The following are deemed not to be entitled services….

(a.1)    abortion, unless the abortion is performed by a specialist in the field of obstetrics and gynaecology in a hospital facility approved by the jurisdiction in which the hospital facility is located and two medical practitioners certify in writing that the abortion was medically required;

In 1994, the Province amended the Medical Services Payment Act to include section 2.01. It provides:

Notwithstanding any other provision of this Act, the medical services plan shall not provide payment for (…) entitled services furnished in a private hospital facility in the Province.

The combined effect of the law and amended schedule was that an abortion is not funded by Medicare unless it is performed in a hospital by an OB-GYN after two doctors certify that the abortion is medically necessary.

Like in Nova Scotia, the purpose of the provisions in the Act and regulation was clearly not medical. This is obvious from the fact that it neither protected patients (if clinic abortions were detrimental to patients, why were they permitted, and not merely not paid for) nor the tax payer (in 1993, the Supreme Court accepted that the physician cost was the same, however, in the meantime it has become clear that clinic abortions are much cheaper than hospital abortions. Currently, a hospital abortion in Nova Scotia is reported to cost $1700, a clinic abortion in Fredericton costs $700-$850).

It did, however, create a serious impediment to women accessing abortions. While hospital abortions are funded by Medicare, many women are not eligible because they do not have timely access to a doctor to make the referral and certify that the procedure is medically required. Thousands of New Brunswick women are currently on waiting lists for a family physician. Beggars can’t be choosers and so New Brunswick women are not in a position to inquire whether their family doc provides reproductive care, nor can they afford to forego all primary care while waiting for a non-discriminatory physician to take new patients. Unlike in the rest of Canada and contrary to federal and constitutional law, New Brunswick women have to pay out of pocket for clinic-based abortions.

Dr. Morgentaler was undeterred by his long march through courts and prisons. In 2002, he brought a new challenge in the New Brunswick courts, this time to s. 2.01 of the Act and to Schedule 2 of Regulation 84-20. The Province, presumably knowing full well that there was no reasonable chance to succeed on the merits, and certainly knowing that Dr. Morgentaler was by now very elderly, adopted a litigation strategy of delay. It challenged the standing of Dr. Morgentaler and when it lost, proceeded to appeal that decision. Anti-choice organizations sought intervener status and when they lost, sought to appeal. Seven years later, in 2009, the New Brunswick Court of Appeal ruled that Dr. Morgentaler did indeed have standing to challenge the legislation. Ironically, the Court relied on Dr. Morgentaler’s extensive experience as a litigant and his financial wherewithal to support the notion that he was in the best position to bring the challenge:

It is, as well, worth bearing in mind that Dr. Morgentaler brings to the judicial arena financial resources and legal expertise which will undoubtedly help level the playing field and greatly improve the chances that any judicial decision on the merits is fully informed both factually and legally.

The Province did not appeal the decision that time, but it did not need to. By the time the Court of Appeal ruled, Dr. Morgentaler had spent roughly one million dollars on the litigation. In 2008, the Clinic had been damaged by a flood, causing an additional cost of $100,000 in repairs. While other downtown businesses were reimbursed, no such compensation was granted to the Clinic. By 2009, Dr. Morgentaler had been worn down financially. He continued to make contributions to ensure that no woman would have to be turned away. After his death in 2013, his estate could no longer support these payments.

Another New Brunswick physician sought to challenge the discriminatory law through a mechanism ostensibly designed to address discrimination without requiring extreme wealth of the litigant, namely the human rights process. Again, the Province adopted a litigation strategy that sought to avoid a ruling on the merits. It challenged the standing of the physician to bring the complaint. The Human Rights Commission denied the challenge and referred the complaint. The Province challenged the standing before the Board of Inquiry. The Board of Inquiry denied the challenge as a preliminary matter and directed that the standing issue be considered as part of the case on the merits. The Province appealed the preliminary ruling of the Board of Inquiry. After more than a year, the Court of Queen’s Bench ruled that the physician did not have an arguable case. The complainant physician was not able to appeal the Court of Queen’s Bench decision before the expiry of the appeal period, fearing reprisal if her identity became known. A motions judge of the Court of Appeal refused to extend time. In the course of so doing, he ridiculed the difficulty of the complainant in finding legal assistance to appeal by stating that “other than expressions of discouragement and an unwillingness to pay a large retainer, A.A. offers no explanation for her failure to respect the time limits.”

When the closure of the Clinic was announced, the Minister of Health indicated that he was unable to comment because the matter was before the courts. This is disingenuous. The Department had been approached by the clinic in the weeks before the announcement to advise the Minister and to discuss transition planning. The Department did not respond to the overture. Also, while the matter may not have been closed, no action has been taken since the ruling of the Court of Appeal nearly five years ago. The litigant is dead. The closure of the clinic was not in issue in the court. It is difficult to see how a statement made by the Minister indicating how the Province intends to close the gap in service could possibly prejudge any ongoing litigation.

The net effect of these developments is that despite clear law on the right to access funded abortions, the provincial government will be able to continue to discriminate against women with impunity. There simply is no litigant who can match the financial litigation power of the government, no court willing to step in to preserve the rights of the most vulnerable women in the province and no administrative entity willing or able to protect women from doctors who believe their licence to practice medicine includes the licence to coerce a woman to carry a pregnancy to term. This failure is sufficiently profound to make a mockery of the rule of law. It is happening in a small province far away from the power centres of the country. It affects poor women, rural women, immigrant women, mothers of small children and others who cannot afford to simply leave the province to get abortion care. There are many justice failures in this country, but this one sits in my office, crying with fear and rage.

First posted by the Institute for Feminist Legal Studies at Osgoode.