Morgentaler Granted Legal “Standing” to Pursue Lawsuit against New Brunswick



August 11, 2008

Province refused to fund Morgentaler’s private abortion clinic with taxpayer monies

August 8, 2008 ( – Henry Morgentaler has been granted “public-interest standing” to proceed in his lawsuit against the Province of New Brunswick. “Standing” refers to the question of whether or not a plaintiff is sufficiently affected by a piece of legislation to justify his/her bringing forward a lawsuit against it. In 2003 Morgentaler launched his lawsuit over NB’s refusal to fund his private clinic located in Fredericton. Morgentaler alleges Regulation 84-20 of the Medical Services Payment Act violates the Charter of Rights and Freedoms and the Canada Health Act.

New Brunswick is the only province that has a private abortion facility that is not publicly funded.

On May 16, 2007 Justice Paula Garnett of the Court of Queen’s Bench heard arguments on the issue of standing. Morgentaler applied for the issue to be resolved, despite the fact court rules normally allow only the Defendant (the Province in this case) to raise the issue of standing. At the hearing the Province argued that Morgentaler does not have standing to pursue his legal action.

In her August 1, 2008 ruling Judge Garnett said that Morgentaler in this instance “does not have legal capacity” since he is not a woman seeking an abortion. However, she said that since such women were unlikely to bring a legal action themselves, “Dr. Morgentaler is a suitable alternative to do so.” She therefore granted him “public interest standing.”

The trial process will now ensue. The courts (Queen’s Bench and Appeal) previously barred a coalition of Canadian pro-life groups – including NB Right to Life, Focus on the Family, the Catholic Women’s League, and the Knights of Columbus – from participating as a third-party intervener. The groups were deemed “moral busybodies” with nothing worthwhile to contribute.

Peter Ryan, the Executive Director of NB Right to Life, commented on the case, saying, “I think it is most unlikely the people of New Brunswick will ever pay Morgentaler to kill our province’s unborn babies on demand. Our Province needs to stand firm in this matter, and I am very hopeful they will do so.

“Regrettably, however, we can have no confidence in the judicial process underway. It is a travesty that no pro-life group representing unborn babies or their mothers has been allowed to take part in the trial. The exclusion in my view reflects both narrow mindedness and bias on the part of New Brunswick courts.”

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