A crusader's legacy: How Henry Morgentaler changed Canada's laws

Dr. Henry Morgentaler, who died yesterday, not only changed abortion law in Canada, but his experience in the courts led to the establishment of an important legal protection: Never again will a judge be able to toss out a jury acquittal and replace it with a conviction.

Whether Canadians agree with abortion or not, they owe him for an important legal protection

Dr. Henry Morgentaler delivers a victory sign as he leaves the Supreme Court of Canada in Ottawa on Jan. 28, 1988. The Supreme Court of Canada ruled in his favour and struck down anti-abortion laws. Morgentaler, who helped overturn Canada's abortion law 25 years ago, died Wednesday at his Toronto home. (Fred Chartrand, Canadian Press)

Dr. Henry Morgentaler not only changed abortion law in Canada, but his experience in the courts led to the establishment of an important legal protection that applies to all Canadians: Never again will a judge be able to simply toss out a jury acquittal and replace it with a conviction.

Morgentaler, who died yesterday at age 90, always said that no jury of reasonable people would ever find him guilty of a crime just because he provided women with safe abortions, and he was right.

He was first acquitted in 1974 on the charge of carrying out an illegal abortion because a Montreal jury refused to endorse a law they perceived to be unfair.

The Quebec Court of Appeal overturned the jury's findings. But a year later, the federal government changed the Criminal Code so that a higher court could no longer reverse a jury acquittal, all it could do would be to order a new trial.

The new provision came to be known as the Morgentaler amendment.

It's almost unimaginable now, certainly for younger women, to picture the Canada that existed when Henry Morgentaler was first practising family medicine in Montreal in the 1950s and '60s. 

A conservative post-war Canada was slowly giving way to the turbulent '60s. Protest and anti-war demonstations were raging, and the new and unfamiliar smell of marijuana was wafting through parks.

Yet abortion was illegal in all circumstances, even in cases of rape or incest, unless the life of the mother was at risk. Birth control had finally become legal, but not all doctors would prescribe the pill to unmarried women.

Abortion was, however, available for a fee in some parts of the U.S. and in Puerto Rico. With the aid of several hundred dollars from a boyfriend or parent perhaps, a woman could travel to those places for a safe procedure.

Otherwise there was the back-alley shops from which a woman would often go to the emergency ward immediately afterwards.

Many wondered why Morgentaler didn't just give up

In 1969, the new Liberal government of Pierre Trudeau changed the law to allow abortion at a hospital if a woman's physical or mental health was at risk, a decision that had to be a approved by the hospital's therapeutic abortion panel, a committee of three people, usually doctors and psychiatrists.

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It was an attempt to do away with the dangers of back-alley abortions. Still, many women dreaded revealing intimate details of their lives to strangers, or worse, having to pretend they were crazy in order to get an abortion.

A bigger problem was that the majority of hospitals simply refused to set up therapeutic abortion panels, and the law didn't require them to.

This was the situation Morgentaler took on when he opened his first clinic in Montreal in 1969, and to many it must have seemed he was tilting at windmills.

A frail-looking man who had endured the concentration camps of Auschwitz and Dachau, and came out of them weighing less than 100 pounds, he had a heart attack in a Quebec jail before his conviction was negated in 1975.

His clinics were raided, and a few were firebombed. Death threats against him filled police notebooks.

In 1988, after the Supreme Court of Canada struck down the abortion law completely, citing the new Charter of Rights and Freedoms and essentially agreeing with Morgentaler's rationale, provinces still could set up barriers for therapeutic abortions and did.

But Morgentaler refused to give up. Beginning in the mid-'80s, he spent about a dozen years announcing and setting up clinics across the country, daring recalcitrant governments to take him to court.

As time passed, and abortion became, on the surface at least, more widely available, Morgentaler and other abortion providers were sometimes taken for granted, as if the issue was settled now and it was time to move on.

In fact, surgical abortions are still not available in P.E.I., although the province will pay for procedures performed elsewhere.

And I can remember, in the late-1980s, interviewing a doctor in New Brunswick who bitterly told me, without wanting his name to be used, about a prominent member of the community who had publicly railed against abortion, but who quietly came to him with a daughter who needed the procedure.

The man, the doctor said, practically spat at him in disgust even as the abortion was being arranged. Almost as bad, the doctor said, was that there weren't enough strong voices in the community to keep the level of discourse more civil.

A different climate

It is a probably a different climate today, though, and Morgentaler, once vilified or ignored, is now (mostly) lauded by politicians. He was made a member of the Order of Canada in 2008, though it was still a controversial decision and some members tried to return their Order of Canada membership in protest.

Yesterday, the status of women critic for the NDP, Niki Ashton and the party's justice critic Françoise Boivin, issued a statement saying, "Today, we lost a great man… We salute his courage, perseverance and dedication. He gave help to many women, and thanks to his actions, they were free to exercise their fundamental right to choose for themselves."

Liberal MP Bob Rae, speaking to reporters in the foyer of the House of Commons, said, "I knew Henry very well," adding, "he not only changed the law, but he ended generations of repression and generations of hypocrisy, and I think we are better off as a country for the courage that he showed."

Liberal Leader Justin Trudeau, who has seen activists try to have him banned from speaking at Catholic high schools because of his pro-choice views, tweeted Thursday, "Sad to hear of Dr. Henry Morgentaler's death. A crusader for women's reproductive freedom, his contributions will be remembered."

Prime Minister Stephen Harper, on the other hand, would not be commenting on Morgentaler's death, his office said.

Harper's status of women minister, Rona Ambrose, was told about Morgentaler's passing at the start of a scrum with reporters after her keynote speech at a defence industry conference in Ottawa.

Caught off guard, Ambrose said only that "obviously he was a big figure in Canadian history" and he had "made a huge impact on the nation."

Conservative MP Mark Warawa, who recently scrapped his planned private member's motion that would have seen MPs vote on the issue of sex-selective abortions, said that "it's always sad when anybody passes and I hope he made things right with his maker."

"I don't think anything is going to change immediately in Canada," he told reporters. "The government and all the parties have indicated that they do not want to open, reopen the debate on abortion."

In 2008, Harper had been critical of Morgentaler's invitation to join the Order of Canada and the prime minister has been under pressure this year by some of his backbench MPs, who have introduced private member's bills that would limit abortion, or raise questions about the rights of fetuses.

Justice Minister Rob Nicholson's office added in a email: "The prime minister has been very clear: Our government will not reopen this debate."

That sentence is an election promise Harper has repeated since the beginning of his government in 2006. And this careful pledge not to revisit the past, from a government that draws much support from anti-abortion activists, is probably another legacy of Henry Morgentaler's as well.