R v. Morgentaler

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In June of this year the US Supreme Court – the nation’s most senior legal body –  overturned a ruling that made abortion legal across the US. Often referred to as Roe v Wade it was a landmark legal ruling in 1973. 

Now twenty-six conservative states in the US are either certain or considering to introduce new abortion restrictions or bans.

As Canadians watched the news, many began to wonder what it meant to us north of the 49

Because not everyone knows the story of  Henry Morgentaler’s long fight to change the abortion laws of Canada 

He had no idea that when he first opened an abortion clinic in 1969 that he would spend time in prison, endure death threats to himself, his staff and his patients. 

For 19 years he persevered as he was attacked with garden shears, had his clinic firebombed, not once, but twice, and even had his medical licence suspended.

All of this to challenge what he saw as an unjust law that placed burdensome restrictions on those seeking abortions. 

His efforts were not in vain… it took almost two decades but eventually he changed Canadian history and left an impact on the country that is felt to this day.

I’m Craig Baird, and this……is Canadian History Ehx

The story of Henry Morgentaler begins in Poland, 120 kilometres to the southwest of Warsaw, where he was born on March 19, 1923 to Jewish parents. 

He was 16 when the Nazis invaded his country in 1939..

Sadly during the German occupation of Poland his father was killed by the Gestapo, while Henry lived with his mother and younger brother in a ghetto with 164,000 others, unable to leave.

His sister and husband left their hometown for Warsaw before the war started but eventually she was incarcerated at the Warsaw Ghetto, and took part in the Warsaw Ghetto Uprising in 1943. 

The uprising was the largest single revolt by Jews during World War II and a total of 13,000 Jews were killed.

Those who survived were sent to the Treblinka extermination camp where it is estimated that between 700,000 and 900,000 Jews lost their lives.

More Jews were murdered at Treblinka than at any other Nazi extermination camp apart from Auschwitz. -. 

Meanwhile, young  Henry were living in  the Ghetto in their hometown.

When it got raided by the Germans and The Jewish Ghetto Police, Henry, his mother, and his brother, hid in a room concealed by a wardrobe. 

They spent two days there before they were discovered on Aug. 23, 1942. 

That’s when they were then sent to Auschwitz, and Henry and his brother never saw their mother again.

The Morgentaler boys were only in Auschwitz for three days because onAug. 27, they were sent to another concentration camp, where they remained.

Then on April 29, 1945, the camp was liberated by the US Army. Upon his release, Henry was a 22-year-old man that only weighed 71 pounds and he spent time in a hospital in Bavaria recovering.

A year later in 1946,  Henry’s brother  emigrated to the United States, and then a year later Henry moved to Brussels where he lived with family friendsthe Rosenfarbs. 

Because they were not in Belgium legally, he and his fiancée, Chava Rosenfarb, had to leave Belgium behind.

In 1949, Henry and Chava married and they left Europe in February 1950 on the S.S. Samaria, sailing to Canada.Rosenfarb left her own notable impact on Canada, becoming a major author in Yiddish Literature.

The couple settled in Montreal, and seven months after they arrived, their first child, Goldie, was born. 

Morgentaler received his medical degree in 1953 and became a Canadian citizen soon after. 

While he started out as a general practitioner, he transitioned into family planning in the late-1950s. 

He was one of the first Canadian doctors to perform vasectomies and offer birth control pills to unmarried women. 

On Oct. 17, 1967, he presented a brief on behalf of the Humanist Association of Canada to the House of Commons Health and Welfare Committee. The committee was investigating the issue of illegal abortion and Morgentaler stated that women deserved the right to a safe abortion. 

Due to his testimony, Morgentaler was inundated with women who wanted abortions. At first, he referred them to two other doctors who provided the service. 

In 1968, he gave up family practice and began to perform abortions in his clinic. This was a risky venture because at the time, abortions wereillegal except if the pregnancy threatened the life of pregnant women. 

Then came massive amendment to the Criminal Code.

On Aug. 26, 1969,  many things, including homosexuality and abortions became legal.

Well more like decriminalized abortions.

It is a common misconception that the amendment legalized all abortions, because the legislation was still very restrictive. 

It legalized abortions but only if it was performed in a hospital and only after approval of a Therapeutic Abortion Committee. 

Hospitals were under no obligation to have such a committee and only 33 per cent of hospitals did. 

While abortion was technically legal, most women had little access to it.

And this when the Henry’s battle really began

In 1969Henry Morgentaler opened an abortion clinic and applied for status as a model abortion clinic. 

He also proposed to federal and provincial governments that abortions could be done outside of hospitals, but it fell on deaf ears.

Henry thought it would be better to provide a safe place for the procedure than wait for a committee decision. He also believed that children must be wanted and be loved, and only then would they learn not to hate.

As the 1970s dawned,  Henry soon found himself a target 

On June 1, 1970, Montreal police raided his clinicand he was charged with performing illegal abortions. 

It took almost three years for his case to go to trial, and as he waited, women’s groups orginzed  to support him and he continued to perform abortions. 

He said that by 1973,he had performed over 5,000 safe abortions outside of hospitals. He charged a maximum of $200, but often only accepted what a patient could pay and in some cases he would perform  the procedure at no cost.

He criticized the hypocrisy of the government over abortions, because he said he had provided abortions for mistresses of prominent people in provincial and federal government levels, some of whom publicly opposed abortions.

His choice to perform abortions had serious legal costs, and from 1973 to 1975, Henry was put on trial three times for defying the abortion law. 

In the first trial, after hearing from women he had helped, the jury  found him not guilty of violating Section 251 of the Criminal Code. 

However, in April 1974, the Québec Court of Appeal, in an unprecedented action, quashed the jury finding and ordered Herny imprisoned. 

That forced him to appeal his conviction to the Supreme Court of Canada and in a 6-3 decision, they upheld his conviction stating the danger to women was not immediate.

Henry was 

was sentenced to 18 months in prison. 

He began to serve  his sentence in March 1975 and whileHenry was in prison, the Ministry of Justice for Quebec laid a second set of charges against him, and once again he was acquitted by a jury.

But that didn’t stop The Ministry of Justice  from appealing his acquittal, the difference this time is that  the Court of Appeal upheld the decision.

This meant the Quebec government set aside their first conviction and ordered a new trial on the first charge. 

In total, Henry served ten months of his sentence and while sitting in prison in solitary confinement, her suffered a heart attack and was released to a hospital. 

The decision by the Supreme Court however led Parliament to pass a Criminal Code amendment in 1976 that took away appellate judges’ power to strike down acquittals and order imprisonments. 

That meant the appeals court could not overturn a jury acquittal, although they could order a new trial.

This is known as the Morgentaler Amendment to the Criminal Code.

The leading the change was Prime Minister Pierre Trudeau, who knew Henry  since the early 60s through the Humanist Fellowship of Montreal.,.

Federal Justice Minister Ron Basford quashes the first conviction against Morgentaler and orders a new trial. Morgentaler was also released while awaiting trial.

On Sept. 18, 1976, after deliberating for only one hour, the jury acquitted Morgentaler once again. 

In an article in Macleans magazine, Henri said that the experience in prison had not broken him, but it had wounded him, and from it he was recovering slowly and that if he died at that point, he would die knowing his life had been worthwhile and he had helped people.

For as hard as Henry fought he wasn’t without critics.

They portrayed him as a man against religion, but he stated he respected those who were religious and, as a result, against abortions. 

What he didn’t like was a minority of people imposing their idea of morality on the entire population.

In 1976y the Disciplinary Committee of the Professional Corporation of Physicians of Quebec  suspended his medical license. They  his behaviour mercenary, and the abortions he provided illegal.

However when the Parti Quebecois took power that year, they dropped all remaining charges against him. 

The party also stated there would be no further trials for clinic abortions in the province. 

This marked a scesmic shift as The Attorney General of Quebec then announced that abortions performed by doctors in free-standing clinics were legal in the province.

But that didn’t mean Henry’s battle was over.

Henry Morgentaler now set his sights on  the country’s abortion law when took on the Supreme Court.

In the case Morgentaler v. The Queen, the Supreme Court ruled that the abortion law passed by Parliament was appropriate under the laws under federalism. 

The Court ruled against him 6-3, but it was not his last battle with the highest court in the land.

In an odd reversal of what we seenow… back in 1981 2,651 Canadians went to the United States to receive legal abortions.

As his fight for abortion services to Canadian women became bigger it brought on a lot of unwanted attention from anti-abortion supporters. 

In the 80s one reporter noted that the stack of death threats against him for a single month was six inches thick. 

At one point in 1983, a man attacked him with garden shears but Judy Rebick, another abortion advocate, blocked the attack and he was unharmed.

In July of that same year, protesters firebombed his clinic, causing minor damage to the clinic but $75,000 worth of damages to the bookstore next to it.

And at the time Henry Morgentaler said 

“They insult me, and they call me names, and occasionally, I’m the subject of hate mail. You get used to it. It is a fact of life.”

And the fight seemed worth it because  in 1988 he got his second chance at changing the law.

In the 1980s, Morgentaler, Leslie Frank Smoling and Robert Scott set up an abortion clinic in Toronto. 

This was done to bring public attention to their cause, and to provide abortion access to women who had not received certification from the Therapeutic Abortion Committee. 

By this point, 72 per cent of Canadians favoured abortion clinics and abortion on demand. At the same time, the number of hospitals providing abortions declined by 10 per cent between 1981 and 1982 alone.

On July 5, 1983, police raided the clinic, only one month after Winnipeg police raided another one of his clinics in Manitoba. 

Henry had opened a clinic there hoping that the NDP government in the province would be more tolerant. 

That belief was swiftly dashed when eight staff members were arrested and 15 women who used the clinic were investigated.

Meanwhile, the Toronto clinic did not re-open until November 1984 when a Toronto jury acquitted all three doctors. The jury took only half an hour to reach the acquittal.

This was the fourth acquittal in a decade for Morgentaler. Morgentaler was unable to attend the re-opening, due to threats against his life.

While Ontario pursued criminal charges against him, Henry returned to the sanctuary  of Quebec, because although they  jailed him in the 1970s, it had become an oasis of sanity where he could operate his Montreal clinic without issue.

Meanwhile,in October 1985, the Ontario Court of Appeal upheld a Crown appeal of the acquittal and Henrywas ordered to stand trial once again. 

A year later, he took the case to the Supreme Court of Canada, calling the appeal ruling an abuse of power. 

In a press conference, he asked how the government could order a trial repeatedly for the same offence.

Henry Morgentaler argued that section 251 of the Criminal Code, which required the committees, violated section 7 of the Canadian Charter of Rights and Freedoms.  The charter was created just a few years earlier in 1982 when Canada repatriated the constitution.

On Jan. 28, 1988, in  5-2 vote, the Supreme Court ruled that section 251 of the Criminal Code violated a woman’s right to security of person under section 7 of the Canadian Charter of Rights and Freedoms.

As a result, Canada had no law concerning abortion; the procedure therefore is governed not by federal law but by provincial and medical regulations. 

Almost two decades after the fight first began, Henry had finally won.

When the decision was announced, the Supreme Court was filled with RCMP officers patrolling the corridors and searching all spectators.

Henry simply said,

“Brave for the Supreme Court of Canada. Bravo for the women of Canada.”

Chief Justice Brian Dickson, with Justice Antonio Lamer, found that section 251 forced a woman to carry a fetus irrespective of her own priorities and aspirations, which was an infringement on her security of person. 

He also found that there was a violation in the requirement for a mandatory certification procedure, which put the woman at higher risk of physical harm. 

Justice Jean Beetz, with Justice Willard Estey, found that the abortion law was invalid, stating there was a violation of section 7 since the requirements of section 251 were manifestly unfair.

Justice Bertha Wilson concurred, stating that section 251 violated a woman’s personal autonomy because it prevented her from making decisions affecting her and her fetus’ life.

Justice William McIntyre and Justice Gerard La Forest dissented in the decision, stating there was no right to an abortion under section 7, nor any other laws.

Since the ruling, the case has become defined in broad strokes. 

The ruling in fact does not provide a constitutional right to abortion, nor freedom of choice. 

What it did was change Canadian abortion laws forever, but it didn’t guarantee abortions [Pause]

In the spring of 1988, the Progressive Conservative government of Prime Minister Brian Mulroney put forward its first attempt to pass an abortion law. 

In a free vote in the Commons, it did not pass through the House of Commons.

In late 1989, Bill C-43 was introduced in another attempt to establish a new abortion law. 

This law sentenced a doctor to two years in prison for providing an abortion if a woman’s health was not at risk. 

This bill passed the House of Commons but on the third reading in the Senate on Jan. 31, 1991, it failed in a tie vote.

Declassified cabinet meeting minutes from this time show that several cabinet ministers, including Health Minister Jake Epp, wanted severe sentences of up to 10 years for doctors who provided the service. 

As of the recording of this episode, Parliament has not acted to replace the existing abortion law. Canada is one of the few countries to have no laws governing abortion.

As for Henri Morgentaler, the man who fought to make abortion laws less restrictive and make the process safer for women across the country, he was honoured extensively. 

In 1989, thanks to his Supreme Court victory, he received the highest honour from the Planned Parenthood Federation

In 2005, he received an honorary Doctor of Laws degree from the University of Western Ontario. While it was almost two decades after the Supreme Court ruling, the university received a petition with 12,000 signatures asking the university to reverse its decision. The university also received a petition with over 10,000 signatures asking it not to reverse the decision.

On May 28, 2008, the Canadian Labour Congress presented him with its highest honour, the Award for Outstanding Service to Humanity.

One month later on July 1, Henry Morgentaler received Canada’s highest honour, the Order of Canada. 

Once again, opinion was divided on the matter. Then Prime Minister Stephen Harper said he would have preferred the award be given to someone who unified the country, while Liberal leader Stephane Dion asked Canadians to respect and celebrate the decision.

Three members of the Order of Canada, including the Archbishop of Montreal, left the Order in protest . 

Throughout his life Henry Morgentaler established over 20 clinics, and trained over 100 doctors in the country before he passed away on May 29, 2013 in Toronto.

That’s the end of the story of Henry Morgentaler and abortion in Canada… but there’s one more important fact you should know

Although Henry was able to strike down abortion laws that limited the acccess of the procedure in 1988… it means that Canada had no law concerning abortion;

Therefore the procedure is governed not by federal law but by provincial and medical regulations. 

Even though abortion had been decriminalized, it is not equally available to all women across the country. 

More than twenty years later, abortion services are particularly difficult to access in rural locations, the far north, and in much of the Maritimes. Because what most people don’t know is  abortions are not performed in Prince Edward Island, and access to abortion services is restricted in New Brunswick.

Information: Canadian Encyclopedia, Macleans, Wikipedia, Vancouver Sun, Montreal Gazette, Edmonton Journal, Winnipeg Tribune, CBC, National Abortion Federation, 

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