05/30/2013 15:15 EDT | Updated 07/30/2013 05:12 EDT

Morgentaler's death puts N.B. abortion lawsuit in limbo

A pro-choice advocate says Dr. Henry Morgentaler's lawsuit against New Brunswick will continue, despite the province's claim that the death this week of the abortion rights activist makes the legal action null and void.

Peggy Cooke, of the Abortion Rights Coalition of Canada, says the 10-year-old case will move forward.

“Certainly Dr. Morgentaler's death doesn't mean that we'll stop fighting the province on this,” says Cooke, who worked at the Morgentaler clinic in Fredericton for 3½ years.

Legal experts have advised it's not uncommon to have someone named as a substitute after one party in a legal case has died in order to keep the matter alive, said Cooke.

Morgentaler, the leader of the abortion movement in Canada, died at his home in Toronto on Wednesday at age 90.

He launched the lawsuit against the province in 2003 for its refusal to pay for abortions at his private clinic in Fredericton.

The New Brunswick health-care system only covers abortions approved by two physicians and performed in hospitals.

'Playing politics'

Cooke is accusing the province of using underhanded means to try to win the case, dragging out the legal wrangling for a decade, essentially waiting for Morgentaler to die.

"It's a very frustrating discourse because the province is ignoring the needs of women, and I would say putting the health of women and the needs of women in the province below, you know, playing politics and trying to play themselves off as sort of neutral on the abortion question, so as not to lose votes," she said.

Morgentaler won a Court of Appeal decision in 2009 that gave him the legal standing to represent women seeking abortions in New Brunswick and sue the province over funding.

But the matter has yet to come before the courts.

"Right now, Dr. Mortgentaler's family is in mourning, but eventually, I'm sure that they will make a decision and the lawyers will make a decision, and they'll let us know how they want to proceed," said Cooke.

"I know that, you know, either way, whether it's through somehow going forward with the lawsuit, or in some other avenue, that the work will continue."