Doctor Henlek “Henry” Morgentaler, Polish-born Canadian immigrant, has died of a heart attack on May 29th, 2013. He was a Nazi prison camp survivor, and became a physician and family planning doctor in Montreal in 1955. He presented a brief to the House of Commons in 1967 about illegal abortions, arguing that women had the right to safe, legal ones. He eventually began performing abortions in 1968. He was physically assaulted and jailed in Canada numerous times for his advocacy, but ultimately vindicated by society.
Morgentaler is practically single-handedly responsible for championing women’s reproductive rights in Canada, opening abortion clinics in defiance of the law, saving women’s lives for whom abortion was the only life-saving measure and being imprisoned for it after Morgentaler v. The Queen, where he was first acquitted then the acquittal was replaced by a conviction by the provincial appeal court in 1973. A retrial in 1975 acquitted him as well, while he was in jail. Pierre Trudeau passed an amendment that courts could not replace acquittal by jury with convictions, having instead to demand a new trial.
He is responsible for the case that caused the Supreme Court to overturn the national abortion laws in 1988, in R. v. Morgentaler (1988). That is Canada’s Roe V. Wade case, though the case itself was hotly disputed amongst the justices, and three opinions and a dissent were offered, each with no more than two signatures. As a result, no opinion could be used as precedent. However, regardless of this, the law was struck down as unconstitutional.
This set up R. v. Morgentaler (1993), when Henry set up an abortion clinic in Nova Scotia. The provincial government immediately passed a law outlawing abortion (as well as liposuction and other procedures), under the rubric of fighting privatized health care clinics, enacting fines for violation. The Supreme Court saw through what they described as the “smokescreen”, and quoted incautious politicians who drafted the bill as saying that abortion was an “evil” that should be eliminated. They treated the case as a federalism issue, that provinces were trying to enact laws that had been struck down as unconstitutional at the federal level. Moreover, these laws were effectively criminal laws by enacting fines, which is the domain of the federal government.
Since then, though many Conservative governments have attempted to re-criminalize abortion, none have succeeded. Morgentaler was awarded the Order of Canada in 2008, over Stephen Harper’s protestations that the order should be given to someone who “really brings Canada together”. In my view, leading the charge in reproductive rights at great personal risk and great personal cost is something that SHOULD unify all Canadians.
But you know as well as I do where these protestations of Harper’s come from; what the true divisive force is between progress and conservatism.