Supreme Court Hearing on PEI’s Abortion Law on Monday

There have been lots of developments regarding abortion on PEI since I first filed my Notice of Application for a judicial review of PEI’s abortion law back in mid-February.  At that time, it was not known whether Premier MacLaughlin would stick up for PEI’s right to determine it’s own abortion policy – which the law clearly allows –  by defending against Abortion Access Now‘s legal challenge seeking abortion services in PEI.  As we are all now aware, the Premier conceded with a surprise announcement that PEI would have it’s own abortion facility by the end of the year.  At no time did the Premier or Minister of Health show any concern for, or even mention, the rights of “unborn children” while making this announcement and doing countless local and national media interviews.  I drew attention to this fact in a Guest Opinion article  published in Island newspapers titled, The Names that Must Not be Spoken Aloud.

The announcement was based on the legal fiction that the Charter of Rights and Freedoms (and/or the 1988 Morgantaler ruling) “compelled” the province to offer and pay abortion services….something that is absolutely false.  Even members of the Liberal government, such as Hal Perry, expressed sadness and surprise with the decision, saying that a number of Liberal dissenters were “overruled” by Cabinet.   And even Opposition Leader Jamie Fox publicly stated  – despite passionate declarations that he is avidly “pro-life”:  “I totally respect the Supreme Court and the ruling that they have provided in regards to this being a Constitutional issue and that there is an obligation for all provinces to provide services.” Wrong, wrong, wrong!  Despite my writing a dozen Guest Opinions in the Guardian and other Island newspapers over the past three years repeatedly giving irrefutable legal sources showing that there is no obligation for provincial governments to provide abortion services….well, in the very moment when we desperately needed to hear this truth spoken by pro-life Islanders, that’s the kind of statement we get from the Opposition Leader. Very disappointing.

I have  been saying from the outset of my legal action that the provincial government is breaking the law by allowing Island girls and women to get abortions in Moncton without a doctor’s referral based on a professional opinion that an abortion is “medically required.” This contention seems to have proven itself true  given that the Minister of Health has just recently announced in an email sent to the CBC that his government has changed the abortion regulations, effective June 6, 2016, removing the legal requirement that abortions be “medically required.” This cynical move was pretty shocking, given that the whole purpose of the Health Services Payment Act is to pay for medical services which are medically required. This regulatory change clearly reveals that the premier is not offering and paying for abortions based on any health considerations, but solely on the basis of ideology, e.g., his belief that Islanders should pay for a woman to end the life of her unborn child at any time, for any reason.  Barb MacFarlane, President of the PEI Right to Life Association, wrote a Letter to the editor in the Guardian about this change, pointing out the obvious: that the province was clearly breaking the law by allowing and paying for abortions which were not medically required, otherwise, why change the law to remove this key clause?

Whereas I was originally quite confident that the legal arguments and facts I submitted to the court would result in a judge ruling in my favour – that is, if I was allowed to present my case –  this recent, unilateral move by the Liberal Cabinet changing the abortion regulation raises doubts about whether I will be successful. It was obviously a move designed to undermine my case.

In media interviews and several Guest Opinion articles I published after launching my case, I consistently expressed a hope that the Premier and Minister of Health would not attempt to have my case thrown out on a technicality. I asked that they welcome a ruling from a judge on the legal merits of the case with the following question in mind: “if the government is doing nothing wrong, surely there is nothing to fear from a question being presented to the court regarding the validity of their new abortion policies and actions.”  I also indicated that since I was not seeking costs from them, my hope was that they would not seek costs from me either. I suppose I was a tad naïve.

Despite being two and half months late filing their Record for the upcoming hearing [the Judicial Review Rules state that the Respondent is supposed to serve a Record and Factum on the Applicant one month from the date that the Applicant serves a Record and Factum on the Respondent, which should have been May 15], I only received their documents in early July.  They are indeed seeking to have my case dismissed on the basis that I don’t have legal standing to bring the matter forward, and they are also seeking costs.

Last Friday afternoon I had a conference call with the judge handling this case (Hon. Nancy Key) and the lawyer representing the Minister of Health.  The judge offered me the choice to postpone the hearing, given the very late date the Minister filed his documents; however, I decided to proceed as scheduled, as long as the judge would permit me to file some additional documents in support of my case, which she allowed. I served new documents on the Minister  and filed them with the court this morning.

I have scanned and uploaded the PEI Government Application Record Index and Factum for those of you who may be interested.  As Judge Key explained during the conference call, when the hearing begins at 9:30am Monday morning (July 18) the first issue to be argued will be my “standing.” After both sides present arguments for and against standing, Judge Key will retire to chambers to deliberate and make her ruling, which she will then report back to us at some point later in the day (she indicated it might be an hour, or it might be longer). If the ruling is that  I don’t have standing, the case is over; if the ruling is that I do have standing, then we will immediately move on to consider the arguments and issues which I raised in my Factum, along with the issues and arguments raised by the Minister of Health.

The hearing is open to the public, so I am hoping supporters will show up. If you are a person of faith, please pray that I will be given the grace to present the very best case possible on behalf of the unborn; and perhaps even more importantly, that God will give Judge Key the clarity of mind and courage of heart to deliver rulings that will respect and defend the right to life of unborn children.