Henekh "Henry" Morgentaler who fought numerous legal battles aimed at expanding abortion rights in Canada. As a Jewish youth during World War II, Morgentaler was imprisoned at the Łódź Ghetto and later at the Dachau concentration camp.

After the war, Morgentaler migrated to Canada and entered medical practice, becoming one of the first Canadian doctors to perform vasectomies, to insert intrauterine devices, and to provide birth control pills to unmarried women. He opened his first abortion clinic in 1969 in Montreal, challenging what he saw as an unjust law placing burdensome restrictions on women seeking abortions. He was the first doctor in North America to use vacuum aspiration and went on to open twenty clinics and train more than one hundred doctors. Morgentaler was jailed in 1975 for defying abortion law when the Quebec Court of Appeal overturned a jury's acquittal. The resulting Morgentaler Amendment to the Criminal Code restricted appeal courts from overturning acquittals. Morgentaler twice challenged the constitutionality of the federal abortion law, losing the first time, in Morgentaler v The Queen in 1975, but winning the second time, in R v Morgentaler in 1988. Morgentaler died at the age of 90 of a heart attack.

Life

Morgentaler was born in Łódź, Poland, about southwest of Warsaw, to Josef and Golda Morgentaler. Before World War II, Morgentaler's father was active in the General Jewish Labour Bund in Poland. Morgentaler's father was killed by the Gestapo, while Henry lived with his mother and younger brother in the Ghetto Litzmannstadt with 164,000 others. His sister had left for Warsaw with her husband before the start of the war. She was incarcerated there at the Warsaw Ghetto, and took part in the Warsaw Ghetto Uprising. She was killed at the Treblinka extermination camp.

When the Germans raided the Ghetto in Łódź with the help of the Jewish Ghetto Police, the Rosenfarbs and the Morgentalers (Golda and her sons Henry and Abraham) along with two other families hid in a room with the door concealed by a wardrobe. After two days in hiding, on August 23, 1944, they were found and deported to Auschwitz concentration camp. He entered a Displaced Persons Hospital in Landsberg am Lech. After a few months there he was moved to a DP Hospital in St. Ottilien, and thence with Abraham to Feldafing, a Displaced Persons Camp, in Bavaria.

After the war

In 1946, Abraham emigrated to the United States. In 1947, Henry made his way to Brussels in Belgium, where he rejoined his friends the Rosenfarbs. Because they were not in Belgium legally, he and his fiancée, Chava Rosenfarb, were required to emigrate. described the harsh economic conditions while the family, and Henry, lived in Brussels. One picture shows Henia, Chava, and their mother wearing coats made from blankets donated by UNRRA. In 1949, Henry and Chava married. Their marriage ended in divorce in the mid-1970s. Chava died on January 30, 2011. He started as a general practitioner in 1955 but increasingly specialized in family planning, becoming one of the first Canadian doctors to perform vasectomies, to insert intra-uterine devices, and to provide birth control pills to unmarried women.

On October 17, 1967, he presented a brief on behalf of the Humanist Association of Canada before a House of Commons Health and Welfare Committee that was investigating the issue of illegal abortion. Morgentaler stated that women should have the right to safe abortion. The reaction to his public testimony surprised him: he began to receive calls from women who wanted abortions. Robert Malcolm Campbell and Leslie Alexander Pal wrote, "Henry Morgentaler experienced the [abortion] law's limitations directly in the supplications of desperate women who visited his Montreal office." Morgentaler's initial response was to refuse:

<blockquote>"I hadn't expected the avalanche of requests and didn't realize the magnitude of the problem in immediate, human terms. I answered, 'I sympathize with you. I know your problem, but the law won't let me help you. If I do help you, I'll go to jail, I lose my practice—I have a wife and two children. I'm sorry, but I just can't!'"

In 1968, Morgentaler gave up his family practice and began performing abortions in his private clinic. He devoted his clinic to performing abortions on women as well as providing birth control and contraceptives, though it was illegal at the time. At the time, abortion was illegal except for cases in which continuing a pregnancy threatened the life of the pregnant woman. On August 26, 1969, an amendment to the Criminal Code legalized abortion in Canada if performed in a hospital after approval of a Therapeutic Abortion Committee. There was, however, no requirement for a hospital to set up a committee and only about one-third of hospitals did. This left many areas without legal abortion, forcing women to travel and inducing barriers and delays. Some committees never met. Even if they did, they never saw their "patient" and yet her fate was determined by their subjective opinions. In addition, there was no appeal of a TAC's decision. Morgentaler's abortions remained illegal under the new law because he did not submit them in advance to a TAC for approval; they became legal in 1988, when section 251 of the Criminal Code (now known as section 287) was found to be unconstitutional by the Supreme Court of Canada.

In 1983, Morgentaler debated former abortion doctor Bernard Nathanson for an hour on a Canadian national superstation.

After Quebec stopped prosecuting him in 1976, Morgentaler opened an abortion clinic in Ontario. In spite of prosecutions, other provinces followed. In 2003, he was able to close his Halifax clinics because a doctor that he trained was now performing abortions at a local hospital, QEII Health Sciences Centre.

In 2006, Morgentaler had to stop performing abortions after undergoing a heart bypass surgery. He continued, however, to oversee the operation of his six private clinics.

Judicial battles

Quebec

In 1969, Morgentaler opened an abortion clinic in Montreal. He said that he applied for status as a model abortion clinic and proposed to the federal and provincial governments that abortions could be safely done outside hospitals. He recounts that neither the provincial nor the federal government showed any interest. Each said it was the other's responsibility. No one came to inspect the clinic. Instead, they sent the police. On June 1, 1970, Montreal city police raided Morgentaler's clinic and laid several charges of performing illegal abortions. The first case did not come to trial until 1973; in the meantime, women's groups organized in support of Morgentaler and he continued to perform abortions. In 1973, he stated that he had performed 5,000 safe abortions outside hospitals, demonstrating that a hospital setting was not necessary.

Between 1973 and 1975, Morgentaler was tried three times in Montreal for defying the abortion law; each time, he raised the defence of necessity, and each time, he was acquitted on that defence despite having acted against the abortion law. In each successive case, the juries took less time to reach their decision to acquit: at the third trial, they took one hour. When juries are refusing to enforce a law that they perceive as unjust, it is called jury nullification. Sheppard presented the "defence of necessity"—as a doctor, Morgentaler had a duty to safeguard the life and health of the women who came to him for abortions, which outweighed his duty to obey the law. After hearing some of those women as witnesses, the jury acquitted him.

The province appealed the acquittal. The jury's acquittal was overturned by five judges on the Quebec Court of Appeal in 1974, who substituted a conviction. The doctor appealed his conviction to the Supreme Court of Canada, but the court upheld his conviction in a 6–3 decision, stating that the danger to women was not immediate. The Quebec government set aside their first conviction and ordered a new trial on the first charge. Morgentaler was released to await trial.

Morgentaler was not released on parole after serving one-third of his sentence, six months.

In January 1976, a third trial was begun against Morgentaler on the first set of charges. On 18 September 1976, the trial ended in an acquittal by a different jury. This was his third jury acquittal in Quebec.

The 1976 Quebec general election brought the Parti Québécois into power. They realized that the abortion law could not be enforced if juries would not convict, so they dropped the remaining charges. On December 11, 1976, the new Justice Minister, Marc-André Bédard, dropped the charges against Morgentaler and other doctors and announced that there would be no further trials for clinic abortions in Quebec. The announcement was just in time to prevent a fourth Morgentaler trial from starting the following Monday. From that point on, Quebec refused to enforce federal law prohibiting abortions by qualified medical personnel. Bédard emphasized that police would continue to identify and charge unqualified, back-street abortionists. Federal Justice Minister Ron Basford said that Quebec had made a just and fair decision that was proper to the provincial authority. Quebec Justice Minister Bédard asked Federal Justice Minister Basford to amend Section 251 of the Criminal Code. The aim of CARAL was to support Morgentaler's challenge of the 1969 abortion law requiring approval of a Therapeutic Abortion Committee (TAC) before an abortion could be legally performed (without requiring TACs to be formed or to meet). The organization formed provincial and local chapters across Canada and helped to raise funds for Morgentaler's legal fees. The group also supported Morgentaler's use of vacuum aspiration under local anesthetic as safer and less invasive than the dilation and curettage (D&C) that was traditionally performed at hospitals for abortions or after miscarriages.

Other provinces and Canada

Encouraged by public support for his struggle and concern about women's access to abortion in other provinces, in 1983 Morgentaler decided to challenge the law in other provinces. He spent the next 15 years opening and running abortion clinics across Canada, in clear violation of the law. In 1983, Toronto Police raided Morgentaler's newly opened clinic and he and his two colleagues were charged with providing illegal miscarriages.

The appeal case, R v. Morgentaler, 1988, was heard by the Supreme Court of Canada. It was a victory for Morgentaler. The court upheld the original jury acquittal. In addition, it declared that the 1969 abortion law violated the Canadian Charter of Rights and Freedoms and was thus unconstitutional in the case of R. v. Morgentaler 1988 (1 S.C.R. 30). The court ruled 5–2 that the administrative procedures were cumbersome and unjustifiably interfered with the body integrity of women." On January 28, the law was found to violate Section 7 of the Charter of Rights and Freedoms because it infringes upon a woman's right to "life, liberty and security of the person."

Chief Justice Brian Dickson wrote:

<blockquote>"Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus a violation of her security of the person."</blockquote>

Thus the court concurred with Morgentaler's reasoning. The Supreme Court ruling essentially ended all criminal restrictions that singled out abortion in Canada for special treatment, leaving it to be governed by Canada's laws concerning medical practice. The Canada Health Act, provincial medical regulations, and health insurance restrictions still applied.

To fight the charges and the injunction, Morgentaler challenged the constitutionality of the Nova Scotia Medical Services Act. In 1993, the case came before the Supreme Court of Canada. The province argued that it was combating the privatization of health services. The court, however, unanimously struck down that part of the Act that forbade procedures in clinics. Justice John Sopinka wrote the decision, which agreed that these abortion regulations were not a valid provincial regulation of hospitals and medicine, but an invalid criminal law: only the federal government can make criminal law. As a result, all of the regulations were struck down, including the ones not dealing with abortion, which the court called a smokescreen for the province's true purpose of stopping women from having abortions. (See R. v. Morgentaler (1993).)

In June 1991, the Ontario government announced that all abortions in the province, including clinic abortions, would be covered by the Ontario Health Insurance Plan. Women would not have to pay out of pocket for clinic abortions, as they did in other provinces. The Ontario Ministry of Health announced that they would be working with the medical profession to ensure that enough doctors were trained and would perform abortions to keep up with the demand from Ontario women. The Alberta government was penalized under the Canada Health Act for not funding abortions in clinics, but instead allowing private billing at provincial abortion clinics. In 1996 Alberta gave in to the financial pressure and agreed to fund the clinics. In it, he gives the reasoning that guided his actions from the first abortions in Quebec and fuelled his defence of necessity in providing women with abortions. This was, in essence, the reason that Quebec juries would not convict him:

<blockquote>Have all these people forgotten that women used to die in our countries from self-induced or quack abortions, that unwanted children were given away to institutions where they suffered enormous trauma that took the joy of life away from them and made them into anxious, depressed individuals with a grudge against society? Have all these people forgotten that an unwanted pregnancy was the biggest health hazard to young fertile women and could result in loss of fertility, long-term illness, injury, and death?</blockquote>

While no precise figures exist, it is estimated that approximately 4,000 to 6,000 Canadian women died from illegal abortions between 1926 and 1947. This lesson was reinforced in 1990 by the Progressive Conservative government's attempt to recriminalize abortion. The federal government, led by Progressive Conservative Prime Minister Brian Mulroney, introduced Bill C-43, which would punish doctors with prison terms if they performed abortions for women whose health was not at risk. After the ruling, the government considered whether it should appeal. Death threats against Morgentaler were frequent. In the 1980s, a reporter said that the stack of death threats for a single month was six inches (roughly 15&nbsp;cm) thick.

In 1983, a man attacked Morgentaler with garden shears outside of his Toronto abortion clinic. Judy Rebick blocked the attack and Morgentaler remained unharmed. Augusto Dantas was charged with assault and with possession of a weapon dangerous to the public good. On July 29, 1983, protesters firebombed his clinic; the clinic suffered only minor damage, but the neighbouring Toronto Women's Bookstore was nearly destroyed. The next day, clinic management announced that the firebombing failed to prevent any abortions since all scheduled abortions were carried out in alternative locations. No one was hurt but the building had to be demolished. The Women's Bookstore next door was also damaged. As a result of the arson, the Ontario government decided to spend $420,000 on improved security for abortion clinics. At the time, all four free-standing clinics in Ontario were in Toronto. The government wanted to gather information about activities by anti-abortion sympathizers; at the time, law enforcement agencies in Canada did not collect statistics about harassment and violence against abortion providers, their clinics, or their clients.

The murder of Barnett Slepian in Buffalo on October 23, 1998, also by a high-powered rifle, reinforced the threats. Abortion doctors wore bullet-proof vests and pulled their curtains to prevent assassins from shooting into their homes. Morgentaler was quoted as saying, "I know of anecdotal evidence that some doctors are considering that they might not be able to continue. It's a very bad situation." He said that he would go on performing abortions. Morgentaler believed that the attacker was an American and that the attacks were an unwanted byproduct of the vitriolic, religiously fuelled abortion battle in the United States. He stated, "In Canada, you have fewer religious fanatics, there is much less violence in Canada and it's a much more tolerant society."

In 1976, the Disciplinary Committee of the Professional Corporation of Physicians of Quebec suspended Morgentaler's medical licence for a year as a result of his conviction for having performed an illegal abortion. As he operated outside hospitals and without a Therapeutic Abortion Committee, all his abortions were illegal. According to Catherine Dunphy's 1996 biography of Morgentaler, the committee "commented on 'an attitude which is primarily directed to protecting his fees. No really valid interview is held before proceeding with the abortion. This behaviour confers a mercenary character in the doctor-patient relationship. This committee is incapable of reconciling this behaviour with the humanitarian concern that the accused invoked throughout his defence'." The Gazette reported that when contacted, Morgentaler stated that earlier model Vacurettes "could occasionally be used more than once", but he insisted that "whether someone uses a Vacurette once or twice has nothing to do with practising good medicine". A 1991 Alberta Report article reports that he now denied having re-used vacurettes, but it also reported that according to The Gazettes lawyers, Morgentaler never took any legal action against that paper.

In 1973, on the basis of Morgentaler's public statements that he had performed thousands of abortions, the Quebec Ministry of Revenue ordered him to pay $354,799 in unpaid income taxes. Morgentaler settled out of court a few years later, paying $101,000.

Honours and awards

Morgentaler was the first president of the Humanist Association of Canada (HAC) from 1968 to 1999. He remained the organization's honorary president until his death in 2013. The HAC bestowed on him its Lifetime Achievement Award on August 3, 2008, in Toronto, Ontario, during its 40th-anniversary celebration convention, the largest Humanist convention in the nation's history.

In 1973, Morgentaler was one of the signers of the second Humanist Manifesto. The American Humanist Association named him the 1975 Humanist of the Year, along with Betty Friedan, author of The Feminine Mystique.

In 1989, Morgentaler received the "Maggie" Award, the highest honour of the Planned Parenthood Federation, in tribute to their founder, Margaret Sanger.

On June 16, 2005, the University of Western Ontario conferred an honorary Doctor of Laws degree upon Morgentaler; this was his first honorary degree. This decision by UWO's senate honorary degrees committee generated opposition from Canadian anti-abortion organizations. 12,000 signatures were acquired on a petition asking the UWO to reverse its decision to honour Morgentaler and several protest rallies were held, including one on the day the honorary degree was bestowed. A counter-petition, supporting the UWO's decision, gained over 10,000 signatures.

On August 5, 2005, Morgentaler received the Couchiching Award for Public Policy Leadership for his efforts on behalf of women's rights and reproductive health issues. The Award was given by the Couchiching Institute on Public Affairs at its 74th annual summer conference. The Couchiching Award for Public Policy Leadership is presented annually to a nationally recognised Canadian who has demonstrated public policy leadership that results in a positive impact on Canada or a community within Canada, often in the face of public opposition. The CLC's description reads

<blockquote>Morgentaler, 85 and frail, accepted the award from the Officers of the Canadian Labour Congress and thanked the unions for standing with him through his many years of struggle to secure for women the right to control their own health and their own bodies. Choice and freedom. </blockquote>

On this occasion, Morgentaler said, "We must remain vigilant in defence of a woman's right to choose because there are still too many legislators and health care providers out there who are not pro-choice and too many women who continue to have their health put at risk because they are denied access to safe abortion services in a supportive environment – twenty years after Canada's abortion laws were struck down." The news item says, "In Canada, a woman can have an abortion without fear of prosecution or imprisonment – for the simple reason that there is no abortion law. For more than 20 years, that state of affairs has set us apart from the rest of the developed world. Canadian women enjoy the right to safe and legal abortions largely because Henry Morgentaler fought a long battle on their behalf. For his trouble, the unflappable Dr. Morgentaler stood trial, languished in prison, and received numerous death threats. What drove him to take such risks? "The realization that a terrible injustice was being done to women and the conviction that it was necessary to change the situation to provide help for those who needed it," replies the retired physician via email."

Order of Canada

Morgentaler was named a Member of the Order of Canada on July 1, 2008; he was recognized "for his commitment to increased health care options for women, his determined efforts to influence Canadian public policy and his leadership in humanist and civil liberties organizations." Abortion-rights activists applauded the decision, saying Morgentaler put his life and liberty on the line to advance women's rights, while anti-abortion groups strongly criticized the award, saying it debased the Order of Canada. Feminist and author Judy Rebick told The Globe and Mail that it was time Morgentaler was honoured for his long battle; she said "Dr. Morgentaler is a hero to millions of women in the country," she said. "He risked his life to struggle for women's rights ... He's a huge figure in Canadian history and the fact that he hasn't got [the Order of Canada] until now is a scandal."

On the matter, Prime Minister Stephen Harper said he would rather see the country's then highest civilian award "be something that really unifies" and "brings Canadians together", while Liberal Party leader Stéphane Dion said, "Dr. Morgentaler has stood up for a woman's right to choose for his entire career, often at great personal risk", and asked Canadians to respect and celebrate the decision.

Several members of the order said they would return their insigniae to Rideau Hall in protest, including Roman Catholic priest Lucien Larré; Gilbert Finn, former Lieutenant Governor of New Brunswick; Frank Chauvin, a retired police detective who founded an orphanage; and the Madonna House Apostolate on behalf of the late Catherine Doherty.

Also in 2008, Canadian bishops unanimously stated that they were opposed to the appointment of the abortion provider and pro-choice advocate Henry Morgentaler to the Order of Canada, directly quoting from the Compendium of Social Doctrine. Moreover, the bishops generally advocate pro-life views through the Catholic Organization for Life and Family, the official episcopal agency dedicated to life issues.

On June 1, 2009, three members did leave the order in protest against Morgentaler's admission, including the Archbishop of Montreal, Cardinal Jean-Claude Turcotte. Turcotte explained his resignation to the CBC, saying, "I'm worried about how we treat life, from conception to death. I decided to take a stance that clearly reflects my convictions." The others were astronomer René Racine and pianist and conductor Jacqueline Richard, both from Montreal. In November 2009, engineer Renato Giuseppe Bosisio also resigned his membership in protest. About a dozen people picketed outside the ceremony in Quebec City. In 1999, Morgentaler said that a decline in youth crime rates could be credited to the legalization of abortion nearly twenty years earlier, leading to fewer neglected and angry children and more mothers surviving to nurture their children. In 2006, Morgentaler retired from active practice.

In August 2011, Morgentaler attended the funeral of Opposition Leader Jack Layton, leader of the New Democratic Party. In the 1980s, Layton attended clinic defences of the Morgentaler clinics, when abortion rights supporters guarded the entrance of a clinic to keep abortion opponents from blockading the doorways to stop patients from entering. The NDP has been a supporter of abortion rights, making them part of its political platform for many years.

In 1991, he debated William Lane Craig in a debate 'Humanism vs Christianity'.

Media and cultural representations

Morgentaler was the subject of a 1984 National Film Board of Canada documentary Democracy on Trial: The Morgentaler Affair, directed by Paul Cowan.

In 2005, the CTV television network produced a television movie documenting Morgentaler's life and practice called Choice: The Henry Morgentaler Story. The movie is described thus: "It chronicles how the physician defiantly began his fight for women's reproductive rights in 1967, even serving time in a Quebec prison in 1975 on abortion charges. The story culminates with the Supreme Court of Canada deciding to strike down this country's abortion laws in 1988." In an interview with CTV, Morgentaler explains: "I got involved because this was, for me, a fight for justice, for fundamental justice, and the fact that I could possibly do something to help women in spite of a law which did not allow me to do it." "I was willing to go to jail, I was willing to die for it," he told CTV's Canada AM Wednesday. "So when I look back on it, I look at a life of achievement because I achieved a great deal and I'm very proud of it." After the financially disastrous 1976 Summer Olympics, he drew a cartoon of a pregnant Drapeau placing a telephone call to Morgentaler.

The alternative rock band Me Mom and Morgentaler used the doctor as the inspiration for its name.

A vandalized name plate from the Toronto Morgentaler Clinic is kept in the Canadian Women's Movement Archives (CWMA) at the University of Ottawa Library's Archives and Special Collections.

References

  • Mini doc: The life of abortion activist Henry Morgentaler Globe & Mail video obituary
  • Democracy on Trial: The Morgentaler Affair, National Film Board of Canada documentary (online)
  • The Morgentaler Clinic
  • The Morgentaler Decision turns 20, National Review of Medicine, 2008-01-15 (accessed 2011-08-30)
  • Abortion crusader deeply divides Canadian society (2009-01-14) CBC
  • Abortion rights: significant moments in Canada's history (2009-05-21) CBC
  • Moses Znaimer's Idea City, 2005: Doctor and activist Henry Morgentaler describes his fight and perseverance (video).
  • Interview with Henry Morgentaler (video) CBC
  • Bits and Pieces by Henia Reinhartz
  • CBC Digital Archives – Dr. Henry Morgentaler: Fighting Canada's Abortion Laws
  • Supreme Court of Canada, R v. Morgentaler (1988) (1 S.C.R. 30)
  • CBC: Abortion law ruled unconstitutional (January 28, 1988)
  • R. v. Morgentaler, 1988, University of Alberta, Centre for Constitutional Studies (Faculties of Law, History, and Political Science)
  • Henry Morgentaler Interview on The Hour with George Stroumboulopoulos
  • 'I practically told the jury to find him guilty' says judge Claude Bisson interview with a jury member from his 1983 trial in Ontario, 2008-07-14