REPROHEALTHLAW-L August 28, 2008
Many thanks to Joanna Erdman for submitting this case comment to this listserve. Joanna is a Co-Director of the International Reproductive and Sexual Health Law Programme and Director of the Health Equity and Health Law Clinic.
Public Interest Standing to Challenge Abortion Funding Restriction
Morgentaler v. The Province of New Brunswick, 2008 NBQB 258 (CanLII)
On August 1, 2008, the Court of Queens Bench of New Brunswick exercised its inherent jurisdiction to grant Dr. Henry Morgentaler public interest standing in relation to an action against the Province of New Brunswick.
The action challenges the constitutionality of Regulation 84-20 of the Medical ServicesPayment Act, R.S.N.B. 1973, c.M-7. The Regulation denies payment for abortion under the health insurance plan 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.
The tests for whether public interest standing should be granted are:
(1) Is there a serious issue to be tried;
The Court held that the issues raised in this case, the constitutionality of Regulation 84-20, are serious and justiciable. The first test is therefore satisfied.
(2) Is the plaintiff directly affected by the legislation or, if not, does the plaintiff have a genuine interest in its validity;
The Province of New Brunswick conceded that Dr. Morgentaler satisfied the second test. The Court agreed.
(3) Is there another reasonable and effective way to bring the issue before the court?
The Province of New Brunswick argued that there are many women who have received abortion services at the Fredericton Clinic since 1995. A suit by one or more of these women would be a more effective way to bring the issues before the Court.
The Court held that there are many valid reasons why women who have had abortions at the Fredericton Clinic would not or could not bring this challenge. Based on case law respecting the third test, these reasons include:
In all of the circumstances of pregnancy and a decision regarding abortion, it is unreasonable to expect a woman to carry out a court challenge within the very short time within which this all could be done.
Because of the intimate and private nature of the decision to terminate a pregnancy, it was not reasonable to expect a woman to assume the role of plaintiff in a court challenge to legislation.
The only other way the issue could be brought before the Court would be to wait until someone is adversely affected by the Regulation and challenge the validity of the Regulation in each appropriate case. This would not only be wasteful of judicial resources, but also unfair in that it would impose burdens of delay, cost and personal vulnerability for the individuals involved in those eventual cases.
The very women adversely affected by the Regulation are women of very limited means. Although they might have a legal interest in challenging the law, it is unrealistic to expect them to do so in light of their financial situation.
Notwithstanding that there are other classes of persons more specifically affected because there was no other way, practically speaking, to subject the challenged Act to judicial review the Court has residual discretion to hear the matter.
The Court held that Dr. Morgentaler is a suitable alternative person to bring this challenge. The third test is satisfied.
The judgment can be accessed online: