Canadian courts flex new muscle over abortion debate
Near the end of a 1989 appeal to the Supreme Court of Canada, Henry Morgentaler was holding court in a hotel room with the cream of Canada’s media elite.
“The tone was informal,” says F.L. Morton in his wide-ranging study, Morgentaler V. Borowski: Abortion, the Charter and the Courts. “The reporters chatted and joked with Morgentaler and his entourage as they helped themselves to the free drinks and snacks.”
Morgentaler asked what these journalists who had been trying to shape the public mind on abortion thought the outcome of his appeal to the Supreme Court would be. Norma Scarborough, president of the Canadian Abortion Rights Action League chimed in with, “We’re going to win, of course.”
“The relaxed smiles around the room indicated general sympathy, if not the same degree of optimism,” Morton relates.
On Thursday, January 28, the Supreme Court of Canada handed down its historic judgment proving Scarborough and the journalists had won the day. The abortion law was struck down leaving no restrictions – a situation which continues to this day. Morgentaler’s victory seemed complete. But as Morton describes, it hadn’t come easily. One man, Joe Borowski, had been there every step of the way, dogging his steps and frustrating every move.
The history of the abortion struggle in Canada revolves around Borowski and Morgentaler. Both loom large in Canadian public life and inspire the same kind of devotion and hatred among their supporters and enemies. Borowski now leads a relatively private life running a health-food store, out of the spotlight. Morgentaler is now almost part of the establishment, as seen by the gala fundraiser recently in Toronto to celebrate his 70th birthday.
Morton charts more than just the public lives of these two men. Through their struggle he paints a picture of Canadian society, the courts, the media and the politicians. The history of Morgentaler and Borowski is the history of the abortion struggle in Canada. It is also a history of the profound changes which have revolutionized Canadian society in the last 25 years.
If he has a position on the issue, Morton strenuously avoids showing it. Indeed, the book is endorsed by both men. Borowski, calls it a “wake-up call to our arrogant and hide-bound judiciary,” and Morgentaler t is “of great interest” to anyone interested in the abortion struggle “and the broader issues of individual liberty and the clash of opposing philosophies.”
Morton’s moralizing rests on how the Canadian justice system has become “Americanized” through various Charter of Rights cases. He says the Morgentaler decision illustrates clearly how the courts have taken it upon themselves to create rights from the Charter and legislate boldly where elected leaders feared to go.
Borowski and Morgentaler hit the national spotlight at roughly the same time. Morton shows how, in a strange way, the fates of the two men were tied together. In a blaze of publicity, Borowski resigned from the cabinet of the Manitoba New Democrats in 1971 over the province’s funding of abortions. At the same time Morgentaler was flouting the abortion law in Quebec and had already been raided and arrested by the police.
Both served prison sentences in 1975, Morgentaler for performing illegal abortions and Borowski for refusing to pay his taxes for legal ones. Borowski began his court challenge against the Canadian abortion law in 1978 and in 1980 undertook an 80-day hunger strike to include unborn children in Canada’s Charter of Rights.
In 1983 police raided Morgentaler’s abortuaries in both Winnipeg and Toronto. In that same year the courts heard and rejected Borowski’s case in Regina. He appealed in 1985 and went to the Supreme Court of Canada which finally declared the case “moot” because of Morgentaler’s success the year before.
The book is strongest in its analysis of what the Canadian system has become under the Charter of Rights and Freedoms. Morgentaler’s victory in the Canadian courts proves the “Charter has been a strongly Americanizing force in Canadian law and politics,” Morton says.
But he starts to preach when he describes the bombing at the Morgentaler abortuary last year. He compares the rise of civil disobedience to “a parallel increase in acts of uncivil disobedience.” He equates the activities of the native warriors in Oka Quebec and the racial violence in Toronto with the firebombing of the abortuary. These incidents, he contends, logically follow civil disobedience. “Moral zealotry…is the enemy of Liberal democracy,” he says.
He calls for a return to the “politics of consensus” which he says is the Canadian way of doing things. He admits Morgentaler dispensed with “consensus politics but doesn’t seem to admit that the old Canadian way represents a tradition which is gone forever. Whatever one thinks about the situation, “Canadians’ new infatuation with rights” has turned into a long-term love affair. It’s not something which will go away for wishing it. Even though people like Morton disapprove, pro-lifers will have to use the new language and the tactics which have emerged from the Charter revolution if they are to convince the Canadian public, legislators and judges of the insanity of the present situation.
