1984: Regulation 84-20 is enacted
This regulation, initiated by the province’s Liberal government under Premier McKenna, prevented abortion from being covered by the provincial health care funding unless performed in a hospital by a specialist, and only after two doctors certified that the procedure was medically required. Clinic abortions were already prohibited under a private act, the New Brunswick Medical Act, which regulates the medical profession.7
1994: Morgentaler opens an abortion clinic in Frederiction
The McKenna government responded to the clinic opening by amending the Medical Act to include an offence provision that would find physicians guilty of professional misconduct if they were involved in performing an abortion out of a hospital setting approved by the Minister of Health. Immediately upon opening the clinic, Dr. Morgentaler’s medical license was suspended by Order of the Council of the College of Physicians and Surgeons for performing abortions outside a hospital, relying on sections 56(b.1) and 56.2 of the Medical Act.8 Morgentaler immediately challenged the constitutionality of the amendment.
Relying on the Supreme Court decision in R. v. Morgentaler (1993), the New Brunswick Court of Queen’s Bench found the impugned sections of the Act to be unconstitutional as they were beyond the jurisdiction of the New Brunswick legislature, and concluded that the legislature sought to prohibit abortions outside hospitals “with a view to suppressing or punishing what [it] perceived to be the socially undesirable conduct of abortion.” The court took into consideration the fact that the amendment dated from a point in time when abortion was considered a criminal offence. The court also stated that the creation of the amendment was not in the interest of ensuring the highest quality of care for women in the province, but that it was designed to “prohibit the establishment of free-standing abortion clinics and, particularly, the establishment of such a clinic by Dr. Morgentaler.”
The decision was upheld on appeal to the New Brunswick Court of Appeal, and leave to appeal to the Supreme Court of Canada was denied. Dr. Morgentaler’s license was reinstated and his clinic was permitted to remain open. The regulation was removed, but reinstated later into the Medical Services Payment Act, with the punishment for doctors no longer included.9 The exclusion of clinic-based abortions from Medicare remained in place for the entire time the Fredericton Morgentaler Clinic was in operation.
Dr. Morgentaler brought an action in 2004 challenging the legality of Regulation 84-20 that sought a declaration that Regulation 84-20 not only violates the Canada Health Act, but also is unconstitutional in that it violates rights guaranteed by sections 7 and 15 of the Charter.10 The province engaged in delay tactics for several years, challenging Dr. Morgentaler’s standing to even bring the case. Finally, the Court agreed in 2009 to grant Dr. Morgentaler public interest standing to bring his legal challenge. The Court found that there was a serious issue to be tried and that, while there were other classes of persons more specifically affected by this regulation, (namely patients who had undergone abortions at Dr. Morgentaler’s Fredericton Clinic), that there are many valid reasons why patients would not or could not bring this challenge and that Dr. Morgentaler was therefore “a suitable alternative person to do so.” However, by then, Dr. Morgentaler had exhausted his financial resources. Coupled with his advancing age, he decided not to continue with the suit.11
In 2014, Liberal Premier Brian Gallant promised to remove all barriers to abortion in New Brunswick by amending Regulation 84-20, and removing the requirement that the procedure be conducted by a specialist after the certification by two doctors that the procedure was medically necessary. He did not remove the requirement that surgical abortion can only be funded by the province if conducted in a hospital.12
%urban points of service |%rural points of service*
82% urban population |18% rural population*
56 points of service per 1,783,510 women of reproductive age*
10crisis pregnancy centre(s)*
56publicly listed point of service*publicly listed points of service*(both medication and procedural abortion offered)
48point(s) of service for medication abortion
56point(s) of service for procedural abortion
Functional gestational limit of24 weeksFunctional gestational limit of24 weeks*
Information about abortion is available on theprovincial/territorial website
Information about abortion is not available on the provincial/territorial website
