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Canada’s Father of Reproductive Rights

Ruth Miller
August 26, 2017

DR. HENRY MORGENTALER'S SACRIFICE

by Ruth Miller

From the Summer 2017 issue of Jewish Currents

THE STORY of Dr. Henry Morgentaler’s life (1923-2013) and his effect on Canadian society and legal landscape is a rich and compelling one. He was a hero to many, and a villain to those who refused, and still refuse, to acknowledge the agency of women and their right to control their bodies and their fertility. I met Dr. Morgentaler in the early 1970s, and followed and supported his efforts to make abortion safe and legal through the decades. I knew him first when I was active in the women’s movement and supporting reproductive rights, then during my career in sexual health education and counseling with Toronto Public Health, and eventually as a part-time counselor at his Toronto clinic. I witnessed how much he risked and suffered, both professionally and personally, for the cause he so fervently championed, while inspiring all of us to stay engaged in the struggle even when prospects looked dim.

Morgentaler was born in Lodz, Poland, into a Jewish socialist family that was active in the Bund. During World War II, he was incarcerated in Auschwitz and Dachau, and lost his mother, father, and sister to the Nazi genocide. After 1945, he was able to complete his first year of medical school in Germany, then made his way to Belgium where he joined his fiancée, poet and writer Chava Rosenfarb, whom he had known in Lodz and who had also survived the concentration camps. In Brussels, he completed four years of medical school in two, and in 1950, the couple emigrated to Canada, where Morgentaler was able to complete his medical studies at the University of Montreal. After receiving his Canadian citizenship and his license to practice medicine in Quebec, he founded a practice in the French working-class east end of Montreal. By this time, Henry and Chava had two children, but their marriage ended in divorce. He married twice more and had two more children; his third wife, Arlene Leibovitch, continues to run his Toronto clinic.

Abortion and contraception were illegal in Canada at that time, and had been since 1869. In 1967, as a leader of the humanist movement in Canada, Morgentaler presented a brief to the Health and Welfare Committee of the House of Commons urging that the restrictive abortion law be repealed. Because of the resulting publicity, he was besieged by requests from desperate women for help terminating their unwanted pregnancies. At first he was unable to help them for fear of losing his medical license, being jailed, and being unable to care for his young family — but soon enough, his conscience took over. He adamantly believed that the law restricting abortion was wrong and was killing women in the course of some 100,000 illegal procedures per year. So he gave up his family practice and began performing abortions in his clinic. He introduced the vacuum-aspiration method of abortion to Canada, a method much safer than dilatation and curettage, which was widely practiced by physicians at the time for gynecological problems and as a way of providing abortions for women without actually calling it such.

IN AUGUST 1969, an amendment to the Criminal Code of Canada, introduced by Minister of Justice Pierre Elliot Trudeau (father of the current prime minister) legalized contraception as well as abortion under certain circumstances. Previously, abortion had been legal only when a woman’s life was endangered by pregnancy or birth; the new law added the word “health” as grounds for abortion. The procedure could be performed only in an approved and accredited hospital and had to be permitted by a Therapeutic Abortion Committee of no fewer than three physicians. No hospital was required to set up such a committee, however, and only about a third did so. Many of these committees never met; each had its own criteria for approving or disapproving abortions; the woman requesting the procedure had no chance to meet the committee; hospitals that did perform abortions had quotas.

In Toronto, where I worked in a Public Health birth control clinic, there was a rule at one hospital that appointments would only be made on Fridays at 1:00 p.m. for the following week, and then only for a limited number. Even in a big city with several hospitals where abortions were performed, we counselors worried about where to refer our patients. When I think about those days, I remember the knot in my stomach.

Despite the abortion law being changed, Dr. Morgentaler’s clinic was still illegal because it operated outside a hospital and had no therapeutic abortion committee. In 1970, he was arrested for the first time. The case would not come to trial until 1973. In the meantime, he continued to perform abortions at his clinic, while women demonstrated outside in his support.

New York State had just liberalized its abortion law. The second wave feminist movement was rising. Abortion referral services had been set up in several cities in Canada to help women go to the U.S. to have abortions. The historic Abortion Caravan in Canada — seventeen feminists in three vehicles (one of them a Volkswagen with a coffin full of coat hangers strapped to its rooftop) — had made their way across the country from Vancouver to Parliament Hill, stopping in many cities along the way to rally support for abortion rights while growing to a caravan of five hundred. I spent many evenings helping refer women to an abortion clinic in Buffalo and trying to convince Toronto doctors to refer for abortion in their own city.

By 1973, soon after Roe v. Wade was decided in the U.S., Dr. Morgentaler wrote to the Province of Quebec asking for approval of his clinic. He proclaimed publicly that he had performed over 5,000 abortions, and he was featured on a Canadian television station performing an abortion in his clinic. All hell broke loose!

On August 15, 1973, an undercover officer, pretending she was at Dr. Morgentaler’s clinic for an abortion, arrested him. On November 13, 1973, a jury of eleven men and one woman acquitted him after twenty-four hours of deliberation. This was one of four trials in which Dr. Morgentaler argued the defense of “necessity” in breaking the abortion law. He always said that no jury would convict him. And in fact no jury ever did. In each trial he was acquitted — three times by French-speaking, mostly Catholic, Quebec juries and once in Ontario.

On April 26, 1974, however, the five judges of the Quebec Court of Appeal, in an unprecedented move, substituted a guilty verdict in place of the jury acquittal. Since 1930 this had been the court’s prerogative in Canada, but it had never before been exercised. Dr. Morgentaler appealed his conviction to the Supreme Court, but in March 1975 the Court voted 6-3 to uphold the Court of Appeal’s conviction, and he was sentenced to eighteen months in prison.

Our young family had moved to Ottawa in 1973. My mother came from Toronto to visit us the day we heard about Dr. Morgentaler’s sentence, and as she walked in the door, before she could put down her bags, I said, “Mom, I have to go to Parliament Hill to protest. You have to stay with the kids!”

There I met with other members of CARAL (the Canadian Association for the Repeal of the Abortion Law, to which I belonged), formed in the fall of 1974, members of the Humanist Association of Ottawa, and other civil rights-minded individuals. We formed the Ad Hoc Committee to Defend Dr. Morgentaler, and met regularly to produce literature and meet with members of Parliament to achieve Henry’s release. There was a strong feeling among many that Dr. Morgentaler was being persecuted, not just prosecuted!

He was being badly treated by guards in jail in Quebec, he said, because he was Jewish. He was in solitary confinement when he had a heart attack. When an Ottawa radio station called me to ask for an interview about Dr. Morgentaler, I was hesitant, shy and unsure, but I remember saying to myself, “If Henry can go to jail and suffer so for this cause, I can do a mere radio interview.” Shortly after, having served ten months in prison, he was released on grounds of ill health.

THE SUBSTITUTION of the guilty verdict for a jury acquittal in Dr. Morgentaler’s case caused lawyers and politicians of all stripes to advocate amending the Criminal Code to remove this possibility. This happened in 1975, and it is referred to as the Morgentaler Amendment to this day. In January 1976, the federal minister of justice set aside Dr. Morgentaler’s conviction and ordered a new trial, based on this amendment. As ever when Henry was prosecuted, the jury acquitted him.

In 1976, the separatist Parti Quebecois was elected and refused to enforce the federal abortion restrictions in Quebec. Nevertheless, it would take twelve more years for Canada’s national law to change. During those years, Dr. Morgentaler opened freestanding clinics in Winnipeg and Toronto, with the support of the women’s movement in both cities. Groups and individuals supporting Dr. Morgentaler raised thousands of dollars for his defense fund — and anti-abortion organizations tried in many ways to intimidate and frighten women seeking abortions, often with the help of American organizations.

The Toronto clinic was firebombed, and on more than one occasion Dr. Morgentaler was threatened with death and roughed up by anti-abortion activists. After the 1998 assassination of Dr. Barnett Slepian by an anti-abortion fanatic in Buffalo, and attacks on other abortion providers, Henry took to wearing a bullet-proof vest. Yet “he was happy when he goaded and taunted lawmakers, politicians, priests, the men and women who chanted and waved pink plastic fetuses in front of his clinics, and any and all foes of the pro-choice movement,” writes Catherine Dunphy, author of a 1996 biography. “This little guy from Poland would square his shoulders and actually strut into a media scrum.”

His Toronto clinic was raided in July 1983, and he and two other doctors were charged with conspiracy to procure a miscarriage. On November 8, 1984, a jury acquitted him after only six hours of deliberation. The attorney general of Ontario appealed the acquittal, and in October 1985, the Ontario Court of Appeal set aside the acquittal and ordered a new trial. Again the case went to the Supreme Court.

On January 28, 1988, in a 5-2 decision, the Supreme Court of Canada struck down section 251 of the criminal code as denying women the rights of “life, liberty and security of the person” guaranteed in Section 7 of Canada’s Charter of Rights and Freedoms. (Under Prime Minister Pierre Elliot Trudeau, the Charter had been entrenched in the Canadian Constitution in 1982.)

It was a momentous event for the country, for women, and of course for Dr. Morgentaler. All of us who had worked so hard for so many years to have the law repealed and to support Dr. Morgentaler will never forget where we were when we heard the news and the feeling of elation and joy of that victory. It meant that Canada was effectively without an abortion law.

Attempts have been made to reintroduce a law restricting women’s reproductive rights, but it has become clear that trying to do so would be politically disastrous for any government in power, so profound has been the change in Canada regarding abortion rights and abortion access. This has not meant, however, that abortion is widely available in Canada, as several provinces have refused, over the years, to permit the existence of free-standing clinics or to fund abortions. Dr. Morgentaler steadily challenged the restrictions enacted in the maritime provinces and set up clinics in Nova Scotia and in New Brunswick. His case in Nova Scotia went to the Supreme Court and the law enacted there was stuck down in 1993. Nevertheless, until recently, Prince Edward Island women had to leave the island province to get an abortion.

IN ADDITION to awards from the Humanist Association of Canada and several other organizations, Dr. Morgentaler received an honorary Doctor of Laws from the University of Western Ontario. Of course, there was opposition to this award, but that only engendered a groundswell of support from those recognizing the tremendous contribution Henry Morgentaler had made to this country. In 2008, after many years of trying to get him awarded this honor, he was made a Member of the Order of Canada, the highest award given in our country.

When I worked at Dr. Morgentaler’s clinic, we saw women from all walks of life, young and older, from all religions and all ethnicities. Dr. Morgentaler continued to do abortions until he was in his early eighties. A colleague of mine described his caring approach in this way:

I sometimes worked with Henry in the operating room. On more than one occasion, the patient who did not speak English was very anxious. Henry would come in, stand next to her, say her name, hold her hand and speak to her in her language. The patients began to cry with gratitude. He would continue to inform her and comfort her during the procedure. She would smile with relief when Henry said it was over and all had gone well.

Dr. Morgentaler died on May 29, 2013, at the age of 90. I consider myself fortunate to have known him and to have been part of the struggle for reproductive rights in Canada. The right of women to control their bodies and their reproductive destiny is one on which all other women’s rights are predicated. Dr. Morgentaler understood this, and Canadian women are the grateful beneficiaries of his decades-long fight.

Ruth Miller was for many years a board member of CARAL, the Canadian Abortion Rights Action League (formerly the Canadian Association for the Repeal of the Abortion Law) and of The Childbirth by Choice Trust, where she co-edited No Choice: Canadian Women Tell Their Stories of Illegal Abortion. She was a sexual health educator and counsellor for twenty years with Toronto Public Health and a part-time counsellor at the Morgentaler Clinic in Toronto for ten years. She has written articles for newspapers and posted blogs on Huffington Post. She was the recipient in 1998 of The Marion Powell Award for leadership, commitment and dedication to the advocacy of women’s health.