Morgentaler's fight not finished for abortion movement

Dr. Henry Morgentaler fought successfully for a woman's legal right to an abortion, but the controversial physician knew the fight was far from over in Canada.

In accepting the Order of Canada in 2008 for his role in decriminalizing abortion two decades earlier, Morgentaler declared "the battle is not completely won in all of Canada."

It's a battle Morgentaler refused to stop even late in life, but his death on Wednesday at the age of 90 creates some bumps in the road as the movement continues its march.

Barriers to access to an abortion remain in Atlantic Canada and rural parts of the country. Prince Edward Island is the sole province where abortions are not performed, while the New Brunswick government is the subject a decade-long court battle spearheaded by Morgentaler over funding.

"It's been a big blow, for sure," said Simone Leibovitch, manager of the Fredericton Morgentaler Clinic, "but we have to go on."

Morgentaler launched the lawsuit against the province in 2003 over its refusal to pay for abortions at the private clinic he'd set up in Fredericton. Under Canada's Health Act, New Brunswick pays only for abortions performed in hospitals and approved by two physicians.

A preliminary challenge questioned whether Morgentaler himself could act as plaintiff since he wasn't directly affected by the abortion policy. In 2009, a Court of Appeal ruling stated he could.

Now, the court case faces questions over its future.

A department of justice spokesperson said the lawsuit is effectively null and void after Morgentaler's death, but legal experts said an application can be made before the courts to have a substitute plaintiff named.

Plans to proceed with court case

Finding a suitable plaintiff willing to take on the case could take a year or two, said Abortion Rights Coalition of Canada executive director Joyce Arthur.

"It's hopefully not over," said Arthur, noting Morgentaler had taken a less active role in recent years. 

"Henry was a plaintiff for many years, but he already sort of washed his hands of that case because he was too tired and ran out of money. It's just a matter of finding a new plaintiff. We'll see what we can do in regards to that."

The New Brunswick case was the only legal battle that Morgentaler was still involved in at the time of his death, but the abortion rights activist had also spent years trying to tackle barriers to access in Prince Edward Island.

In the 1990s, Morgentaler fought Prince Edward Island's policy of not paying for abortions in private clinics. He initially succeeded in having the regulation thrown out, but that decision was appealed and the regulations were reinstated.

After that, however, Morgentaler turned his attention to Nova Scotia and New Brunswick, hoping victories there would spur change on P.E.I.

'Chilly climate' in P.E.I.

A local professor studying the abortion rights issue on the Island says a chilly climate surrounds the issue and the province would benefit from a Morgentaler-type figure to help strip away the remaining barriers to abortion access.

"The bottom line is that women in Prince Edward Island never benefited from the 1988 Morgentaler decision by the Supreme Court because the province of Prince Edward Island systematically worked against that constitutional right," said Colleen MacQuarrie, an associate psychology professor at the University of Prince Edward Island.

No doctor on the island is currently performing surgical abortions, though medical abortions are secretly being conducted, according to reports.

Physicians in Canada don't have to perform an abortion, but can't stand in the way of providing a referral to get the procedure done and informing the patient about it.

A P.E.I. woman who wants the procedure must travel four hours by car or transit to either a Halifax hospital where it is publicly funded, or to Fredericton's private Morgentaler clinic where it costs about $800. Travel expenses are not paid for.

"What it means is substantial resources and personal supports are required for a 10-minute procedure," said MacQuarrie. "Contrast that if you're living in Charlottetown, 10 minutes away from your home, you go there you have the procedure and you're home. It's a couple hours out of your day."

Rural access still a problem

The Abortion Coalition of Canada's executive director Arthur said one of its priorities is to find a doctor willing to perform abortions on the Island.

Island activists are appreciative of the legacy Morgentaler left, even though they say there's still a battle to be waged in his absence.

"I think he's given us a gift that we need to, unfortunately, continue to fight to maintain and preserve and here on P.E.I. even access," said Michelle MacCallum of the Women's Network PEI.

Besides the battles in Atlantic Canada, Arthur said the lack of abortion access in rural communities remains the top concern.

"Access is good to excellent in most major cities, but it's the rural areas and the North and a few places like the Maritimes and Saskatchewan where access is still poor," said Arthur.

Less than 20 per cent of hospitals actually provide abortions, with private clinics, such as the Morgentaler ones, conducting most of them.

"Doctors don't want to be exposed in a small town and it's hard to blame them, because of the fear that still surrounds the abortion issue," said Arthur. "Doctors are still being harassed today."