Canada is one of few countries with no legal protection whatsoever for children before birth. We protect trees, wildlife, water, but not the youngest members of our own species. In 2004, will we start to give a break to the most innocent of those whom God has made “a little less than the angels” (Ps. 8)? Or will our cultural addiction to prenatal killing grow even worse?

A New Brunswick court case may tell the tale.

Morgentaler vs New Brunswick

If Henry Morgentaler has his way, his lawsuit against the province of New Brunswick, filed in July, 2003, will give every Canadian (not just NB) woman the legal right to kill her preborn child on demand at private, not just public, facilities with you and I as taxpayers forced to pick up the tab for every dead baby.

The boldness of Morgentaler’s quest is breathtaking when you consider at present there is (a) no legal right to abortion, let alone abortion on demand; (b) no legal right to Medicare-funded abortion; (c) minimal public support for tax-funded abortion on demand (23% of Canadians, 2002 Leger poll); (d) no political consensus that provinces must fund abortions at private facilities like the ones Morgentaler operates in six provinces.

Four provinces (BC, Ontario, Alberta, Newfoundland & Labrador) fully fund private abortuaries. Two (PEI, Saskatchewan) have no such facilities. Three (NS, Quebec, Manitoba) partially fund abortion centres. Only one – New Brunswick – has a prenatal house of death (Morgentaler’s clinic does about 500 abortions a year) which is not funded by the taxpayer. Hence Morgentaler’s special interest in NB.

New Brunswick is a sore spot for Morgentaler. A decade ago when he tried to set up his abortion operation in Fredericton, the Liberal government of Frank McKenna fought him in court. It lost. Now a PC government is fighting him again over funding for the same abortuary. Morgentaler seeks to put icing on his cake.

The Province’s Stand

The Province of NB, under Premier Bernard Lord, has committed to fighting Morgentaler all the way to the Supreme Court of Canada if need be. And it will be – Morgentaler promises to go the distance. He has little support among New Brunswickers. In the 2003 election campaign, only three of 55 candidates were in favour of funding private abortion facilities. Both major parties – Lord’s Conservatives and the Liberals – oppose it.

However, in the dispute with Morgentaler, the NB government does not take an overt pro-life position. Essentially, it argues that the Province has a right to determine when it shall pay for abortions, that it is philosophically opposed to a two-tier system of health care (i.e. against private clinics), and that abortions at private facilities are not needed since they are already accessible in hospitals.

Pro-Life Coalition in Court?

Dissatisfied at the prospect of an elephant in the courtroom that no one dares mention – viz., the reality that abortion kills children – a pro-life coalition of 15 groups, headed by NB Right to Life, has applied to intervene in the case. If the Coalition for Life and Health is successful, the case could become a landmark victory for the rights of the unborn and the health of women.

Coalition members include LifeCanada, Canadian Physicians for Life, Campaign Life Coalition, REAL Women, Focus on the Family, the Roman Catholic Diocese of Saint John NB, the Evangelical Fellowship of Canada, the NB Council of the Catholic Women’s League, the Christian Medical and Dental Society, the NB State Council of the Knights of Columbus, the Christian Legal Fellowship, the Catholic Civil Rights League, Canada Family Action Coalition, and the Mother and Child Welcome House.

The Legal Process

The expected sequence of events is:
1. Hearing to decide Coalition for Life and Health application to intervene.
2. Discovery hearing to examine proposed evidence from all parties.
3. Trial at New Brunswick Court of Queen’s Bench (one judge).
4. New Brunswick Court of Appeal (three judges).
5. Supreme Court of Canada (nine judges).

While the entire process may take at least two years, no one should doubt the impact that a single court case can have on an entire country. Just consider how one decision (June, 2003) by an Ontario appeal court in favour of same-sex marriage led the federal government to propose a law to redefine the institution of marriage Canada-wide.

Does the Canada Health Act Require Funding of Private Abortuaries?

Morgentaler’s lawsuit arose after several years of public dispute over the federal law governing Medicare, the Canada Health Act (CHA). A succession of Liberal health ministers, from Diane Marleau on, have contended that the Act requires that abortions be publicly insured. Allan Rock and Anne McLellan went further, saying even private clinic abortions – performed totally on demand – must be covered.

Yet the Act itself says nothing about abortion. It does say “medically necessary” services must be covered. But nowhere does it list such services or give the federal government authority to determine a list. Constitutionally (the BNA Act), health care is provincial jurisdiction, meaning it is normal for a province to decide what is insurable.

There seems nothing, therefore, to stop a province from not paying for abortion or only paying under limited circumstances. Except that the CHA does give the federal government the power to penalize provinces for what it considers violations of the Act. The feds have put pressure on NB over its abortion policy, but have not used their big stick.

NB’s policy is set out in Regulation 84-20 under the Medical Services Payment Act. It stipulates that abortion shall not be insured unless approved by two physicians as “medically necessary” and performed by a gynecologist in a hospital. The regulation implies a distinction between medically necessary abortions (insurable under some circumstances) and other abortions (non-insurable), presumably those done on demand, which is precisely the business of a private centre like Morgentaler’s. The Province believes its policy is consistent with the Canada Health Act.
Morgentaler disagrees. Tired of waiting for the feds to use strongarm tactics, he is suing a province he charges is run by “sexist, male chauvinists.”

But getting a court to back him up regarding the CHA is not so simple. His position is pretty radical. As the Coalition for Life and Health intends to argue, Morgentaler’s view comes down to this: ending the healthy pregnancy of a healthy woman because it is unwanted is not a choice – which would make some sense – but a medical necessity (and therefore must be insured). If a woman doesn’t want her baby, she has no choice, she MUST abort it or her health is seriously at risk!

That’s quack medicine; no reputable medical body holds that. Just think how many of us walking around are former “unwanted pregnancies” whose mothers chose life. Does any court want to suggest we are all the fruit of bad medicine and should have been aborted?

I think because Morgentaler’s legal argument on the CHA is so weak, his lawsuit resorts to what he thinks will be an effective sledgehammer: the claim that NB’s policy violates women’s constitutional right to abortion on demand.

Is There a Constitutional Right to Abortion on Demand?

Here we come to the most serious issues. Morgentaler claims there is a constitutional right to abortion on demand under the liberty and security of the person guarantees of the Charter of Rights (section 7). If there is such a right, one might plausibly argue that the ability of some women to exercise that right is unduly impeded when a woman, unable to find easy access to a hospital abortion, has to go to a private clinic yet is forced to pay for it there (because section 15 of the Charter guarantees everyone equal benefit of the law).

Many will ask, don’t Canadian women already have an unfettered right to abortion? Not really. There is no abortion law, meaning a woman is free to have an abortion. But the question of a legal right to abortion has not been clearly established. Abortion rights activists, together with their supporters in the media and politics, talk as if the issue has been settled. Some lower courts have assumed such a right. But the Supreme Court has never ruled on it.

In the Court’s 1988 Morgentaler decision striking down Canada’s abortion law, only one of nine justices (Bertha Wilson) cited a Charter right to abortion, and even she said the legitimate government interest in the unborn means that right can be limited. Morgentaler is betting the present Court is much more pro-abortion.

Present Canadian law thus is surprisingly different from US law, where in its infamous 1973 Roe v Wade decision, the Supreme Court granted women a constitutional right to abortion. If Morgentaler wins against NB, it will be like the Canadian Roe v. Wade – only worse! For US women certainly do not have a legal right to tax-funded abortion on demand at private facilities. Yet that is what Morgentaler hopes to give Canadian women.

If its intervenor application is accepted by the court, the Coalition for Life and Health will argue that there is no constitutional right to abortion, and that the question of such a right cannot be decided without examining the right to life of the unborn child as well as the ways in which abortion, and the practice of Morgentaler’s facilities in particular, violate the rights and health of mothers.

The Coalition hopes to introduce testimony on (a) the humanity and Charter right to life of prenatal babies; (b) the violation of women’s rights through lack of informed consent, etc.; (c) the risk that abortion causes lifelong serious harm to women’s health.

Regarding (a), scientific evidence (ultrasound, etc.) of preborn humanity is overwhelming. Moreover, the Supreme Court has never decided whether the right to life guaranteed “everyone” in the Charter (section 7) applies to the preborn. Item (c) will include testimony from Canadian women who have had abortions, including some at Morgentaler’s clinics. It will also raise the question: if something is dangerous for you, how can there be an unfettered right to it?

Prayer and Other Help Needed

Henry Morgentaler has a habit of winning legal battles against Canada’s unborn. Will this one be any different? Maybe not. But then again, with God’s help, maybe this once, truth and justice – and the babies and moms – will prevail, and the kingdom of abortion that seems to rule our country will be set back.

We at NB Right to Life believe abortion is above all else a spiritual trial. We, therefore, earnestly entreat our fellow pro-lifers to plead with our Heavenly Court for the outcome of this case.

Funds are also needed. Morgentaler has promised to spend up to one million dollars on this case. If the Coalition for Life and Health is permitted to intervene, it will easily cost $150,000. That figure would be far higher but for some generous pro bono services courtesy of the Christian Legal Fellowship. The Coalition is presently incurring at least $25,000 in costs related to its application to intervene. The next stage – the trial – is expected to cost $50,000 in the coming months.

Donations to the Coalition for Life and Health Legal Defence Fund may be made payable to NB Right to Life and sent to NBRL, PO Box 113, Stn. A, Fredericton, NB E3B 4Y2. Given Henry Morgentaler’s heroic status among the ruling elite of this country and his great financial resources, the approaching legal battle seems something like David (us, a weak-because-politically-incorrect lot representing the unwanted, voiceless, littlest ones whose humanity is denied) vs Goliath (the abortion king of Canada). But Goliath does not have to win.

Still, David has to do his part. That’s where we all come in.

God save the children.

Peter Ryan is the past president of LifeCanada, executive director of NB Right to Life, and spokesperson for the Coalition for Life and Health. For further information on this case, Mr. Ryan may be reached at
1-888-796-9600 or nbrl@nb.sympatico.ca.