20 Years after Morgentaler
On Jan. 28, 1988 the Supreme Court of Canada threw out the country’s abortion law. The Interim’s coverage of this sad anniversary includes a reprint of our immediate reaction, an excerpt from David Dooley’s 1992 pamphlet, “Supreme Court and Morgentaler Against Biology” and original contributions from Donald DeMarco (on Morgentaler as a feminist icon), Ian Hunter (on Morgentaler’s Canada) and Rory Leishman (on what the decision really said). See also our lead editorial (“20 years of Morgentaler”) on page 4.
Immediate reaction to the Supreme Court abortion decision was a sick feeling in the pit of the stomach. Images of tiny babies, with no more value than a diseased appendix, losing their lives in a Black Thursday orgy of destruction. Images, too, of the scene at 85 Harbord Street in Toronto where, as pro-lifers prayed and sang hymns, jubilant women screamed approval for the court and hurled insults and curses at the mourners. And Morgentaler called it “a victory for children.” Obscene.
But, once experts had the opportunity to read the judgement, a ray of light appeared. Although the court ruled Section 251 of the Criminal Code to be unconstitutional, it did not create an unfettered right to abortion. Indeed, it acknowledged that society has a duty to protect the prebom child.
The pro-life movement now faces its greatest challenge since 1969. Scientists have confirmed that life begins at conception. To argue that a preborn child only becomes human at some arbitrary point in pregnancy is complete nonsense.
Abortion, as committed in Canada today, is a deathly solution to a social crisis. Not only is it lethal to the child, but it is hazardous to the future fertility and mental stability of the mother. Public policy must emphasize alternatives to abortion and offer real social and financial support to families.
Each one of us has a crucial role to play in the weeks and months to come. If we are truly committed to the pro-life cause, we must make an extra effort to put that commitment into action. Extra money is needed by both national and local pro-life groups to fund educational and political iniatives. Extra workers are needed to implement the various strategies. If you have not been actively involved in the past, now is the time to come forward. If your earlier involvement has taken a back seat lately, now is the time to rearrange your priorities.
The Supreme Court has thrown the abortion issue back into the hands of the federal government. It is up to each one of us to become a vocal advocate for the pre-born. We must inform our individual MPs, as well at the prime minister, that we will not accept waffling and compromise. We expect immediate action to protect all prebom children from the moment of conception.
This editorial first appeared in the February 1988 Interim.
Two major biographies of Henry Morgentaler, by Eleanor Wright Pelrine and Catherine Dunphy, may tell the reader more about radical feminism than about Canada’s most notorious abortionist. Together, they are not so much balanced portrayals of a highly complex and controversial figure, but, in appropriating him as a martyr for the cause of abortion, are more akin to apologiae for the feminist agenda.
In 1971, Pelrine produced Abortion in Canada (new press, Toronto) in which she gave considerable space to Henry Morgentaler, although she hid his identity under the pseudonym, “Dr. C.” She claimed that her book was the fruit of extensive research, but afforded the careful reader good reason to think otherwise: “therapeutic abortion can be about 10 times safer than childbirth itself;” “abortion is merely a special method of birth control and its ethics must be analyzed as such;” “until 1869, Catholic doctrine taught that the soul enters the growing fetus about 40 days after conception for a male and 80 days after conception for a female.”
Her 1975 biography, Morgentaler: The Doctor Who Couldn’t Turn Away (Gage) presented her subject as the victim of “technological justice.” Facts that would cast a dark pall over Morgentaler were simply omitted.
When the Crown raided Morgentaler’s abortuary, a number of incriminating facts were discovered that were later presented as testimony in his trial: Morgentaler did not give the woman to be aborted any medical check up or blood test prior to the abortion and therefore was not sure that she was pregnant. He administered anesthesia without an anesthetist present and did not have resuscitation equipment. He reused inexpensive ($3.30) plastic Vacurettes, contrary to the manufacturer’s instructions. The aborted woman who was in the recovery room at the time of the raid was rushed to Royal Victoria Hospital in Montreal three days after her abortion, where doctors removed 2 cc’s of fetal tissue, approximately one-third of a six-week fetus; she had cervical cuts and lacerations and infection was setting in. The doctor testifying on behalf of the Crown stated that the woman would probably have died if she had not been given medical care. Such evidence is not consistent with Morgentaler’s claim that “every woman on whom I have performed an abortion with good results was in danger of (loss of) life at the hands of an incompetent abortionist.”
Pelrine is an abortion activist and therefore does not include any facts that might embarrass her cause. Consequently, then-justice minister Otto Lang was simply trying to “impose his personal belief that abortion is criminal,” while Henry Morgentaler was “honest and straightforward.”
Dunphy’s book, Morgentaler: A Difficult Hero (1996, Random House, Toronto), relied heavily on Pelrine’s earlier works, but was not nearly so hagiographic. Cursiously, however, she consistently misrepresented the title of Pelrine’s biography, substituting the word “Wouldn’t” for “Couldn’t.” She also mistakenly identified The Interim as “a Roman Catholic publication.” Nonetheless, she was willing to call attention to less-than-flattering images of Morgentaler’s life: his “ex-lovers whom he’s sent reeling with his dismissal of them,” his troubles with friends and relations (including his daughter, who has difficulty speaking with him).
Still, the prevailing tone of the book was feminist and pro-abortion. She wrote about a Toronto conference of the Canadian Women’s Coalition to Repeal the Abortion Law and how members of the audience “erupted in pandemonium” when Morgentaler announced he had performed more than 5,000 illegal abortions. “Enthusiastic feminists and civil libertarians went wild. They gave Henry Morgentaler a standing ovation.”
On the other hand, advocates for life were dismissed as “uterine warriors” and “religious fanatics.” Abortion is not the taking of pre-born life, but a “creative act.”
The feminist lens presents a distorted view of human beings both pre- and post-birth, as well as of abortion itself. Dunphy recalled how it was Pelrine who contacted a CTV producer with the proposal that Morgentaler perform an abortion for the public affairs program W5 on Mother’s Day. Morgentaler liked the idea, because he thought it would “demystify” abortion. Dunphy stated, with apparent gleefulness, that “the abortion took about five minutes. It was obvious the procedure was safe and pain-free.”
The word “demystify” was grossly misapplied. The “mystique” that surrounds Henry Morgentaler and his feminist supporting cast is something that needs to be “demystified.” Is Morgentaler a humanist, a civil libertarian, a savior, a martyr? Is abortion a “creative act”? Do feminists really promote what is best for women? Or has Canadian society lost its ability to see the culture of death precisely as the culture of death?
Donald DeMarco is professor emeritus at St. Jerome’s University.
On Jan. 28, 1988, the Supreme Court of Canada handed down the most calamitous judgment in Canadian history – R. v. Morgentaler, 1988 SCC. As a result of this ruling, Canada is the only democracy in the world with the ignominious distinction of having no law to protect the life of a baby in the womb at any time during a pregnancy.
There was no legal basis for the 1988 Morgentaler decision. It was an exercise in raw judicial power. The seven judges who took part in the case came up with no fewer than four separate opinions.
On one disastrous point, five of the judges agreed: led by chief justice Brian Dickson and his successor, Mr. Justice Antonio Lamer, they resolved to strike down the few remaining restrictions on abortion which Parliament had retained in Section 251 of the Criminal Code in 1969, on the pretence that the law violated the right to life, liberty and security of the person in Section 7 of the 1982 Canadian Charter of Rights and Freedoms.
In the opinion of Dickson and Lamer, the provisions in Section 251, which required the approval of a lawful abortion by a so-called “therapeutic abortion committee,” were so cumbersome as to violate the Charter right of a pregnant mother to security of the person. In a similar, separate opinion, justices Jean Beetz and Willard Estey contended that Section 251 could not pass muster with the Charter, because it outlawed all abortions in private clinics like those run by Henry Morgentaler.
In yet another separate, concurring opinion, Madam Justice Bertha Wilson went even further: she maintained that Parliament had no constitutional authority to restrict the overwhelming majority of abortions which occur during the first trimester of a pregnancy.
In support of this view, Wilson argued that a fetus is only a “potential life.” Yet, even in 1988, this was a manifestly absurd proposition inasmuch as it was already a well-established scientific fact that human life begins at conception. With reference to the cutoff point during a pregnancy, after which the state could intervene to protect the life of a baby, Wilson opined: “It seems to me that it might fall somewhere in the second trimester.”
In such various ways, the majority of the Court in Morgentaler, 1988, presumed to instruct Parliament on how it should restrict abortion. In a joint dissenting opinion, justices William McIntyre and Gerard La Forest took strong issue with such judicial arrogance. While conceding that the Charter had to some extent extended the function of the courts, they argued that it did not go so far as to “allocate to the courts the responsibility for designing, initiating or directing social or economic policy.”
In particular, McIntyre and La Forest contended that nothing in the Charter mandated unelected judges on the Supreme Court of Canada to define the parameters of an appropriate abortion law for Canadians. “The solution to this question in this country must be left to Parliament,” they insisted. “It is for Parliament to pronounce on, and to direct, social policy. This is not because Parliament can claim all wisdom and knowledge, but simply because Parliament is elected for that purpose in a free democracy and, in addition, has the facilities – the exposure to public opinion and information – as well as the political power to make effective its decisions.”
In taking this stance, McIntyre and La Forest exercised judicial restraint, upheld the separation of legislative and judicial powers and reaffirmed the principles of democratic government. In contrast, the majority of the court usurped the legislative powers of Parliament by striking down Canada’s abortion law.
Today, 20 years and more than two million abortions later, Canada still has no law restricting abortion. While Parliament bears much of the blame for this shameful deficiency in the law, it is clearly the ruling of the Supreme Court of Canada in Morgentaler, 1988, which brought on this continuing national calamity.
Canadians can only wonder when our elected legislators in Parliament will finally summon up the resolve to enact a new law on abortion and exercise their indubitable constitutional authority to curb the lawless excesses of the judicial activists on the Supreme Court of Canada.
Rory Leishman is a columnist for The Interim, the London Free Press and Catholic Insight magazine.
“It is probably impossible for a man to respond, even imaginatively, to such a dilemma…. ” So wrote Mme.Justice Bertha Wilson, in her 1988 judgment in the Morgentaler case.3 She was referring to the dilemma a pregnant woman faced in deciding whether or not to terminate her pregnancy. The words quoted above signaled Mme. Wilson’s intention to approach the question, not with legal precedent in mind, but from the perspective of radical feminism.
The recent struggle for women’s rights, she declared, “has been a struggle to eliminate discrimination, to achieve a place for women in a man’s world, to develop a set of legislative reforms in order to place women in the same position as men… Thus, women’s needs
and aspirations are only now being translated into protected rights. The right to reproduce or not to reproduce which is in issue in this case is one such right and is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being.”
To support her conviction that a woman has the right to decide autonomously that she should have an abortion, she referred to the landmark U.S. case, Roe v. Wade (1973). In another American decision, Justice Blackmun, who wrote the majority opinion in Roe, made a woman’s freedom of choice seem a principle of fundamental justice,and Mme. Wilson took his word for it:
A woman’s right to make that choice freely is fundamental. Any other result. ..would protect inadequately a central part of the sphere of liberty that our law guarantees equality to all.
So on the basis of an American jUdgment which has become highly contentious, and of a sociological view of the position of women which was also open to challenge, Mme. Wilson concluded that abortion was a woman’s right guaranteed by the Charter of Rights and Freedoms.
What about the fetus? Like the U.S. Supreme Court, Mme. Wilson conceded that it had rights, but that these came into force only as it developed; they became compelling only when the fetus
reached viability. Quoting Blackmun again, she sidestepped the question of when life begins:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any onsensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
So he referred to the developing fetus as “potential life” and to the state’s interest as “the protection of foetal life.” When she quotes Blackmun with approval, Mme. Justice
Wilson demonstrates that her knowledge of science is on the same level as his – and Morgentaler’s.Testifying at a trial in Regina in 1983, the above-mentioned Dr. Liley was asked whether the unborn are potential human beings.6 He replied that the word
“potential” is not a medical scientific term. The unborn, he said, are considered growing or developing human beings:
“AT THE MOMENT OF FERTILIZATION THE WHOLE SYMPHONY OF LIFE IS READY TO BE PLAYEO OUT. “
Like Blackmun, therefore, Mme. Wilson was employing a tactic she had no right to use – making it seem that the embryo or fetus was only “potential” and therefore of no consequence until it had reached the stage of viability.
If Mme. Wilson made the right to an abortion seem part of a woman’s fundamental liberties under the Charter, Chief Justice Brian Dickson made it seem part of a woman’s security of the person.
“Forcing a woman, by way of criminal sanction, ” he wrote, “to carry a foetus 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 security of the person. ”
In 1969 Parliament had legislated that abortion was a criminal act, unless a therapeutic abortion committee of three doctors determined that pregnancy would or would be likely to endanger her life or health; though Dickson had agreed in 1975 that the criteria established by Parliament was reasonable enough, now he was arguing that they were not so at all.8 Moreover, the normal expectation through the centuries has been that pregnancy is followed by childbirth, and here was the Chief Justice of Canada making it seem that childbirth was not a necessary consequence at all.
Instead, like Mme. Justice Wilson, he was bending over backwards to please radical feminist sympathies. Another judge, Mr. Justice Mcintyre, in dissent, dryly pointed out the weaknesses in the majority opinions; he made it clear that the justices on the majority side were bending principles in order to secure a desired result, and, as he put it, the Court had no business
abandoning its traditional adjudicatory function in order to formulate its own conclusions on public policy. He said flatly that “there has never been a general right to abortion in Canada. There has always been a clear recognition of a public interest in the protection of the unborn. … ” His historical survey bore out that conclusion, and definitely made it appear that Chief Justice Dickson, Mme. Wilson, and the others in the majority were creating an unqualified right to an abortion, a right which had never existed in Canada.
Our contention here is that the efforts put forth by Dr. Morgentaler and by the justices of our Supreme Court are indeed ludicrous. In the 1988 Morgentaler decision, Chief Justice Brian
Dickson did his best to destroy the normal expectation, which has existed ever since Adam and Eve, that the birth of a child would be the logical outcome of a pregnancy, and made it seem in fact that for a woman to be pregnant was a violation of the security of the person to which she was entitled under the Charter of Rights. And Mme. Justice Wilson made it seem that the liberty which a woman was guaranteed by the same charter involved the liberty to have an abortion, even though no such liberty could be found in Canadian tradition or legal history.
The right to life, on the other hand, § paramount. The American Declaration of Independence, composed two centuries ago, took this as a given: all men are endowed by their Creator with the right to life, liberty,and the pursuit of happiness. The Quebec Charter of Rights was in the same tradition when it said that the right to life is an intrinsic right of every human being. It is essential, in a democratic society especially, for everyone to regard this principle as sacrosanct. Our pretty young law student has the obligation to choose life, not death. And she owes it to her own intelligence to acknowledge what science has shown us: that the child in the womb is a human being. All of us must appeal from legal fiction to biological fact.
David Dooley, PhD, is emeretus professor of English literature, University of St. Michael’s College, University of Toronto. Excerpted from Supreme Court and Morgentaler against Biology.
In the early 1970s, when I was beginning my law teaching career, I was scheduled once to debate Henry Morgentaler at Ottawa University. At the time, I was worried less about the substance of the debate and more about procedural niceties – would I shake his hand? How would I address him? To call someone “Doctor,” who’s grisly practice made a daily mockery of the Hippocratic Oath, seemed an unattractive prospect. In the event, it didn’t matter. Morgentaler failed to show up, sending as his replacement an obese, hectoring female doctor who lost the debate the moment she opened her mouth.
Today, the niceties of nomenclature would not arise. The University of Western Ontario – not my alma mater, thank God, but the institution where I taught for a quarter-century – last year conferred its highest academic honour on Canada’s most notorious abortionist. Whatever Henry’s medical ethics, Western University has certified him “Dr.” Morgentaler.
This year, Western conferred an honourary doctorate on Brian Mulroney. This is what happens when a university loses its way, when it no longer knows why it exists or what it is supposed to do. No doubt, the UWO degrees committee is even now making a list and checking it twice for 2008 honours: in the medical line, perhaps Dr. Charles Smith, the disgraced pathologist. Or, to balance off Mulroney, perhaps Karlheinz Schreiber? True, there could be logistical problems if any of these individuals happens to be in jail come spring convocation, but Morgentaler’s time in jail proved no insuperable obstacle.
Of course, Morgentaler was in jail in another era and, as far as I’m concerned, another country, a country as dead as any of the recipients of his attention.
I draw attention to the honourary degree aspect of the Morgentaler story because Western University has never been called to account. The president who made the Morgentaler decision, Paul Davenport, remains UWO president. The principal of King’s College – the ostensibly Catholic college – Gerry Killan, who was a member of the senate honourary degree committee that chose Morgentaler, remains in office. And, some Christians continue to contribute money to King’s and to UWO. What’s worse, they send their children there for an education. What kind of education their children will receive is debatable; in the latest MacLean’s magazine rankings, Western has dropped precipitously, while its law school now occupies the basement.
The 20th anniversary of the Supreme Court’s Morgentaler decision cannot, without sarcasm too macabre for my taste, be called a birthday. So, for this “deathday” observance, let me briefly remark three propositions.
One, the Canada where I was born, where I was educated and grew to manhood, came to an end about the time of the Supreme Court’s Morgentaler decision. I do not suggest a cause and effect; that would give undue weight to one ludicrous court decision, one of many once the Supreme Court of Canada became smitten with the Charter of Rights.
What I do assert is that the Canada I am inclined fondly to remember ended at about that time. Back then, I wrote articles about the Morgentaler decision in scholarly journals, analyzing the court’s ideological motives and flawed legal reasoning. A waste of time and paper. Today, I cannot bring myself to re-read the decision or my critiques; abortion is not a subject for scholarly analysis and debate, but an evil to be fled from.
Two, all who are touched by abortion are hurt by it; no winners, only losers. The most obviously hurt, of course, are the children who are not allowed to draw breath. But the women who undergo the procedure, their men, and even the abortionist, all are hurt – and the only physician who has the remedy for that kind of hurt is Jesus Christ.
Three, while we do not forget the evil functionary, sometimes our remembrance is subsumed in the triumph of the ostensible victim. Through centuries, Pontius Pilate has not been forgotten, but he is remembered only in the greater drama of Christ.
So let it be with Morgentaler. He will not be forgotten, nor should he be, not the evil he has perpetrated, but the great story of the second half of the 20th century, even in as pathetic a country as Canada, is not his; it is Humanae Vitae. The words of Pope Paul VI in that encyclical have come true. It is those words that will be pondered by those who come after us (always assuming that there are any) when the words of the Supreme Court in Regina v. Morgentaler are utterly and deservedly forgotten.
Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario