NL 2013/01

Abortion in Canada: Part of the Health Act Rather than a Crime for 25 Years Now. The doctor Henry Morgentaler succeeded after a decades-long struggle

How often are people prepared to expose themselves to persecution before abandoning their convictions, or at least keeping them hidden? After how many setbacks does one give up, thinking, “OK, if that’s the way you want it!”? Fortunately, the Canadian doctor Henry Morgentaler (born in 1923) is someone who never gives up. He achieved something that no-one considered possible: abortion was removed from Canada’s Criminal Code and made part of the Health Act just like all other health matters. That was 25 years ago, on 28 January 1988.

Abortion was criminalized in Canada in 1869, and a century later, in 1969, certain exceptions were permitted if a woman’s mental, emotional or physical well-being was at risk, but even then she got her abortion only after interrogation by a committee of three doctors. The procedure itself had to be performed in a hospital by a doctor authorized for this purpose. Because of all these limitations and the great deal of latitude for discretionary decisions, it was no wonder that only a few hospitals performed abortions at all. Women residing in majority-Catholic provinces were often forced to travel across the country to find a facility, and most cases were turned down. The alternative was a journey, mostly expensive, to the USA or an illegal and life-threatening abortion performed by someone who wasn’t a qualified medical professional. The 1969 act also permitted the use of contraceptives for the first time ever.

That same year, Morgentaler closed his surgery, where he worked as a popular general practitioner for two decades, and opened an abortion clinic, deciding to concentrate on abortions after that. As early as October 1967, he had publicly supported every pregnant woman’s right to a medically safe abortion.


Caprice, Ignorance and Resistance to Changing the Old Law

Winning the fight for the legalisation of abortion was nearly impossible for several different reasons: firstly, this procedure was believed to be dangerous, because medical innovations from other countries had not yet made it to Canada. Morgentaler learned how to use vacuum suction. He was tutored by foreign colleagues and purchased the necessary equipment. Morgentaler published accounts of his experiences, and also invited representatives of the Ministry of Health and the medical profession to learn from him.

A second nearly insurmountable obstacle was the question of whether only politicians can change laws, or is this possible through the courts also? Who’s responsible for updating, refining, correcting or rewriting obsolete laws? While judges, state prosecutors and other doctors agreed with Morgentaler in private, this did not stop them from filing criminal reports and convicting him.

The third obstacle, which nearly brought Morgentaler to his knees, was the combined arbitrary actions of the police, courts and tax authorities: 15 simultaneous criminal complaints; court dates that were delayed to a tortuous extent; arbitrary confiscations of documents, patient files, equipment and bank accounts; brutal intimidation of employees and patients, armies of so-called experts supplied by the state prosecutor whose lack of technical knowledge had to be proven with great effort; ‘creative’ interpretations of prison regulations; etc.


Civil Courage Demands a Great Tribute

Morgentaler was not a brave man at the very beginning; on the contrary, he had to summon the courage to resist the authorities. His childhood memories of being persecuted as a Polish Jew and his parents’ murder in a concentration camp were too vivid.

After twenty years of struggle against a law that had been recognized to be thoroughly inhumane, after trials and several months of imprisonment, after mobilising the media, and thanks to the support of a burgeoning movement for women’s and human rights, Morgentaler finally reached his goal: on 28 January 1988, Canada’s Supreme Court found that the ban on abortion was unconstitutional, as it violated the fundamental right to “life, liberty and security of the person” (Morgentaler et al. v. Her Majesty The Queen, 1988, 1 S.C.R. 30).

In the following years, Morgentaler received honours from academic and humanist groups for his courageous action, though he was also threatened and the target of an equal degree of hostility, and attempts were made to obstruct the opening of new clinics. Shortly after this anniversary, he will celebrate his 90th birthday. A truly full life!


Recommended reading: Eleanor Wright Pelrine, “Morgentaler: The Doctor Who Couldn’t Turn Away”, 1975, ISBN 0-7715-9938-2

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