{"id":248,"date":"2022-11-02T22:38:16","date_gmt":"2022-11-02T22:38:16","guid":{"rendered":"https:\/\/rjaccessprojectnb.ca\/?page_id=248"},"modified":"2023-10-24T01:15:13","modified_gmt":"2023-10-24T01:15:13","slug":"abortion-and-activist-history-in-new-brunswick","status":"publish","type":"page","link":"https:\/\/rjaccessprojectnb.ca\/en\/abortion-and-activist-history-in-new-brunswick\/","title":{"rendered":"Abortion and Activist History in New Brunswick"},"content":{"rendered":"
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Activists gather at the New Brunswick Legislature<\/figcaption>\r\n<\/figure>\r\n<\/div>\r\n\r\n\r\n
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New Brunswick has a long history of creating barriers to abortion. In 1810, the government of New Brunswick passed the first anti-abortion law in Canada, modelled after <\/span>Lord Ellenborough\u2019s Act<\/span><\/i> in the United Kingdom. It banned people from providing services that would cause a miscarriage (Backhouse, 1982; Hughes, 2017). There were two levels of punishment. The harsher penalty was for anyone who helped cause a miscarriage after<\/span> \u201cquickening,\u201d or when the movements of the fetus could be felt by the pregnant parent. There was a lesser penalty if the miscarriage happened before quickening had started (Hughes, 2017). The decision to use quickening as the marker between the two different levels of offence shows the influence of religion on the law. Religious scholars and theologians, like St. Thomas Aquinas, argued when a fetus \u201cstirred,\u201d that meant it had a soul (Backhouse, 1983).<\/span> <\/span><\/p>\r\n

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New Brunswick legislators, unsatisfied with the restrictions already in place, removed the distinction for quickening from the law in 1842. That meant it was illegal for anyone to help a person miscarry at any stage of pregnancy. Until 1849, the New Brunswick abortion laws specifically targeted the provider of the miscarriage, and there was no penalty for the pregnant individual (Hughes, 2017).<\/span> <\/span><\/p>\r\n

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In 1869 the Parliament of Canada took the abortion laws from New Brunswick and built them into the criminal laws for the whole country. In 1892, the Canadian <\/span>Criminal Code<\/span><\/i> made it a crime for anyone to attempt do anything that would cause miscarriage for a woman, whether she was pregnant at the time or not, and the punishment could be a life sentence in prison. This is how the abortion laws in Canada stayed until 1969 when the government (under the liberal leadership of former Prime Minister Pierre Trudeau) changed the course of history by decriminalizing abortions that were approved by a committee of at least three doctors. This change set the stage for the provinces to treat abortion as the therapeutic, medical treatment that it is (Hughes, 2017). Eight years later in 1977, the federal government released the Badgely Report showing that there were at least five hospitals in NB performing the procedure, for up 440 people per year (1974). Fast forward to 2011, when there were only two hospitals offering the procedure, for a total of 414 abortions per year (Hughes, 2017).<\/span> <\/span><\/p>\r\n

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At the centre of the fight for abortion access in NB is how payment is regulated. The provincial government in NB took a deliberately neutral stance on abortion for several years (Hughes, 2017; Johnstone, 2014). That changed in 1985 when the Conservative government, led by Premier Richard Hatfield<\/span>, passed <\/span>Bill 92<\/span><\/i>, which changed the province\u2019s Medical Act when Dr. Henry Morgentaler asked to open an abortion clinic in the province. The amendment created a charge of \u201cprofessional misconduct\u201d for any physician who performed an abortion outside an approved hospital (Johnstone, 2014). <\/span> <\/span><\/p>\r\n

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In the landmark 1988 case <\/span>R. v. Morgentaler<\/span><\/i>, the Supreme Court of Canada ruled that restrictions on abortion violated the rights to bodily security, conscience, life, and privacy that are guaranteed by the <\/span>Charter of Rights and Freedoms<\/span><\/i> (Hughes, 2014). Since then, the provinces and territories have adopted different models (some more effective than others) of providing abortion access to their citizens. However, New Brunswick governments continued to restrict access. <\/span> <\/span><\/p>\r\n

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In 1989, Dr. Morgentaler sued the province of NB for refusing to pay for abortions that New Brunswick residents received after they traveled to his Montreal clinic. The court ruled in Dr. Morgentaler\u2019s favour and ordered the New Brunswick government to pay him for those procedures <\/span>[<\/span>Morgentaler v. New Brunswick (Attorney General) 1989<\/span><\/i>]<\/span>. The province, however, never reimbursed Dr. Morgentaler (Hughes, 2014).\u202f<\/span>\u202f<\/span> <\/span><\/p>\r\n

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Later that year, in response to this decision, the Liberal government under Premier Frank McKenna<\/span> added Health Regulation 84-20 to the Medical Services Payment Act (Johnstone, 2014). Abortions would now only be covered by Medicare when two separate doctors approved — in writing \u2013 the procedure as medically necessary, and the abortion was done in an approved New Brunswick hospital<\/span> (Johnstone, 2014).<\/span>\u202f<\/span> <\/span><\/p>\r\n

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In 1994, the New Brunswick Court of Queen\u2019s Bench ruled that <\/span>Bill 92<\/span><\/i> was unconstitutional (Hughes, 2014). <\/span>Dr. Morgentaler opened an abortion clinic in downtown Fredericton the following year. Despite the government\u2019s best efforts, the decision was upheld by the New Brunswick Court of Appeal in 1995, and the clinic was allowed to stay open. It wasn\u2019t until thirteen months after the ruling by the New Brunswick Court of Appeal that <\/span>Bill 92<\/span><\/i> of the Medical Act was finally removed by the passage of <\/span>Bill 59<\/span><\/i> on February 28, 1997 (G.N.B, 2022).\u202f<\/span> <\/span><\/p>\r\n

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However, <\/span>Regulation 84-20<\/span><\/i> remained. While clinicians who provided abortions outside of designated hospitals would no longer face the professional punishment (namely the restriction or suspension of their medical licence, without a hearing), the procedure was still not covered by Medicare. For 20 years, Dr. Morgentaler provided abortions for New Brunswickers, and often covered the cost for those who could not afford to pay (CBC News, 2014). He also <\/span>continued to fight for abortion access and the repeal of <\/span>Regulation 84-20<\/span><\/i>. He brought a court case to the New Brunswick Court of Queen\u2019s Bench in 2004, which was delayed several times by the Government of New Brunswick until Dr. Morgentaler\u2019s death at the age of 90 in 2013. H<\/span>is estate continued to fund the Morgentaler Clinic in Fredericton until July 2014, but <\/span>there was no one with the funds necessary to continue the lawsuit, so it was dropped (Johnstone, 2014).<\/span> <\/span><\/p>\r\n

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In 2015, with some support from community activists, Dr. Adrian Edgar bought the building where Morgentaler\u2019s clinic had been. He renamed it Clinic 554 and established a general family medicine practice, which also provided abortions (CBC News, 2015). For the next five years, Clinic 554 was the only place in the province to access a non-hospital abortion and one of the very few places in the region to access transgender health care.\u202f<\/span>\u202f<\/span> <\/span><\/p>\r\n

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In 2015, the Liberal government, under Brian Gallant<\/span>, amended <\/span>Regulation 84-20<\/span><\/i> by removing the requirement that two doctors approve the abortion as medically necessary (Hughes, 2017). However, abortions that are performed outside of the three currently approved hospitals in the province are still not funded by Medicare (McTavish, 2015). The three hospitals currently approved to offer abortion services are The Moncton Hospital, in Moncton; the Dr. Georges L. Dumont University Hospital Centre, also in Moncton; and the Chaleur Regional Hospital, in Bathurst<\/span>, which continues to pose significant barriers for New Brunswickers in other parts of the province, especially given the lack of reliable public transportation (CHCO-TV, 2021). <\/span> <\/span><\/p>\r\n

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Dr. Edgar, with the support of local and national activist groups, made several attempts to work with the province to properly fund the reproductive health services offered at Clinic 554. His efforts were either dismissed or ignored by both Liberal and Conservative governments (Edgar, 2019). Some additional pressure was added when the federal government withheld a portion ($140,216)\u202fof the Canada Health Transfer Credit in 2021. Prime Minister Trudeau specifically said that withholding the funds was in response to New Brunswick\u2019s failure to fulfil its obligations under the <\/span>Canada Health Act<\/span><\/i>, which states that all medically necessary procedures must be funded by the provinces (The Canadian Press, 2021).<\/span> <\/span><\/p>\r\n

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The NB government continued to refuse to cover abortions performed at the clinic, arguing that the facilities at two Moncton hospitals and one Bathurst hospital are enough to serve the whole province. According to Dr. Edgar, Clinic 554 was forced to close in 2020 due to chronic underfunding (Edgar, 2019). Not only is access to abortion now more limited for New Brunswickers, but New Brunswick has lost another family doctor; one who specializes in transgender health care.<\/span>\u202f<\/span> 
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On June 1, 2022, The Canadian Civil Liberties Association (CCLA) won their first step in the formal lawsuit they launched against the Government of New Brunswick regarding the constitutionality of <\/span>Regulation 84-20<\/span><\/i>. In cases like these, entities like the CCLA must first bring a motion to be granted public interest standing in the case. This means that they go to court to advance the interests of people who face barriers to access to justice, like people who need to access an abortion. In this case, the judge made it clear in her decision that it would be unreasonable to expect a woman denied abortion services to be the face of the lawsuit and granted CCLA intervenor status. In her decision, the judge also called the Government of New Brunswick\u2019s opposition to it \u201csurprising and unreasonable.\u201d <\/span> <\/span><\/p>\r\n

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\u201cIt\u2019s never too late to do the right thing,\u201d said Noa Mendelsohn Aviv, CCLA\u2019s Equality Program Director. \u201cThe government could\u202fmake reproductive rights available to all\u202fwomen, girls,\u202fand trans individuals across the province.\u202fThe regulation is unconstitutional. If they choose to fight, we will meet them at the courthouse (CCLA, 2021).\u201d \u202f<\/strong> <\/span><\/p>\r\n

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To review the laws, regulations, and court decisions about abortion access in New Brunswick, press <\/span>Timeline button<\/span>\u202f: <\/span><\/p>\r\n

Timeline<\/a><\/p>\r\n

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References\u202f <\/strong><\/p>\r\n

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Ackerman, K. (2012). \u201cNot in the Atlantic Provinces\u201d: The Abortion Debate in New Brunswick, 1980-1987. <\/span>Acadiensis, 41<\/span><\/i>(1), 75-101. <\/span>https:\/\/www.jstor.org\/stable\/41803333<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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Backhouse, C. (1983) Involuntary Motherhood: Abortion, Birth Control and the Law in Nineteenth-Century Canada. <\/span>Windsor Yearbook of Access to Justice, 3<\/span><\/i>(1983), 61-130. <\/span>https:\/\/ssrn.com\/abstract=2263404<\/span><\/a>.<\/span> <\/span><\/p>\r\n

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CBC News. (2014, April 10). <\/span>Morgentaler abortion clinic in Fredericton to close.<\/span><\/i> CBC News. <\/span>https:\/\/www.cbc.ca\/news\/canada\/new-brunswick\/morgentaler-abortion-clinic-in-fredericton-to-close-1.2604535https:\/\/www.cbc.ca\/news\/canada\/new-brunswick\/morgentaler-abortion-clinic-in-fredericton-to-close-1.2604535<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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CBC News. (2015, Jan 16). <\/span>Morgentaler\u2019s old Fredericton clinic to reopen as private abortion facility. <\/span><\/i>CBC News. <\/span>https:\/\/www.cbc.ca\/news\/canada\/new-brunswick\/morgentaler-s-old-fredericton-clinic-to-reopen-as-private-abortion-facility-1.2912283https:\/\/www.cbc.ca\/news\/canada\/new-brunswick\/morgentaler-s-old-fredericton-clinic-to-reopen-as-private-abortion-facility-1.2912283<\/span><\/a> <\/span><\/p>\r\n

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CCLA. (2021, June 1). <\/span>CCLA wins first round of abortion challenge in New Brunswick<\/span><\/i>. Canadian Civil Liberties Assoc. <\/span>https:\/\/ccla.org\/major-cases-reports\/nb-abortion-rights\/ccla-wins-first-round-of-abortion-challenge-in-new-brunswick <\/span>\u202f<\/span><\/a> <\/span><\/p>\r\n

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CHCO-TV\/NB Media Coop. (2021, June 9). <\/span>NB debrief S01E02: The long struggle for abortion access in New Brunswick<\/span><\/i> [Video]. YouTube. <\/span>https:\/\/www.youtube.com\/watch?v=sc1_UnO9nrg<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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Edgar, A. (2019, October 10). <\/span>Closure Statement of Dr. Adrian Edgar from Clinic 554.<\/span><\/i> Action Canada. <\/span>https:\/\/www.actioncanadashr.org\/news\/2019-10-10-closure-statement-dr-adrian-edgar-clinic-554<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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Hughes, J. (2014, April 18). <\/span>The closure of the Morgentaler Clinic and the rule of law in New Brunswick.<\/span><\/i> NB Media Coop. <\/span>https:\/\/nbmediacoop.org\/2014\/04\/18\/the-closure-of-the-morgentaler-clinic-and-the-rule-of-law-in-new-brunswick\/<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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Hughes, J. (2017, May 14). <\/span>Perfectly Legal but Still Bad: Lessons for Sex Work from the Decriminalization of Abortion<\/span><\/i>. (2017) <\/span>University of New Brunswick Law Journal, 68<\/span><\/i>(2017). <\/span>https:\/\/ssrn.com\/abstract=3044546<\/span><\/a> <\/span><\/p>\r\n

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 <\/span>N. B. (2022). <\/span>Bill No. 59AN act to amend an Act respecting the New Brunswick Medical Society and the College of Physicians and Surgeons of New Brunswick<\/span><\/i>. An Act to Amend an Act Respecting the New Brunswick Medical Society and the College of Physicians and Surgeons of New Brunswick – Legislative Assembly of New Brunswick. Retrieved July 20, 2022, from <\/span>https:\/\/legnb.ca\/en\/legislation\/bills\/53\/2\/59\/an-act-to-amend-an-act-respecting-the-new-bru<\/span><\/a><\/p>\r\n

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Johnstone, R. (2015, April 10). The Politics of Abortion in New Brunswick. <\/span>In\/Visibility: Absences\/Presence in Feminist Theorizing, 36<\/span><\/i>(2), 73-87. https:\/\/journals.msvu.ca\/index.php\/atlantis\/article\/view\/1226<\/span> <\/span><\/p>\r\n

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Mctavish, L. (2015). Abortion in New Brunswick. <\/span>Acadiensis,44<\/span><\/i>(2), 107\u2013130. <\/span>http:\/\/www.jstor.org\/stable\/24877281<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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Reid, M. (2013). <\/span>Access by Province.<\/span><\/i> Morgentaler 25 Years. <\/span>https:\/\/www.morgentaler25years.ca\/the-struggle-for-abortion-rights\/access-by-province\/<\/span><\/a>\u202f<\/span> <\/span><\/p>\r\n

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The Canadian Press. (2021, July 27). Trudeau says Ottawa withholding health-care transfers to N.B. over abortion access. CTV News Atlantic. <\/span>https:\/\/atlantic.ctvnews.ca\/trudeau-says-ottawa-withholding-health-care-transfers-to-n-b-over-abortion-access-1.5524840<\/span>\u202f<\/span> <\/span><\/p>\r\n

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  New Brunswick has a long history of creating barriers to abortion. In 1810, the government of New Brunswick passed the first anti-abortion law in Canada, modelled after Lord Ellenborough\u2019s<\/p>\n

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