Abortion in Canada - Part I - Dr. Henry Morgentaler

Last year, in my first year of medical school at the University of Toronto, I was grateful for the opportunity to give back and help undergraduate students prepare for their medical school interviews. One of the questions for the mock interview was about the potential defunding of Planned Parenthood in the United States and how it might impact healthcare for women. The trick to the question was realizing that Planned Parenthood does considerably more than provide safe abortions. For example, Planned Parenthood Toronto provides:

• Birth control and emergency contraception;
• Anonymous HIV testing;
• Prenatal healthcare;
• Immunizations; and
• Therapy and counseling.

In the United States, Planned Parenthood also provides information, counseling, and screening for cancer, such as:

• Pap and HPV tests;
• Breast cancer; and
• Cervical cancer.

When I suggested that next year the question should focus more on Canada, I was shocked to find that very few of the undergraduate students (and even some medical students) had heard of Dr. Henry Morgentaler or the Morgentaler legal cases that led to a woman's right to a safe abortion in Canada. Many people had heard of Roe v Wade in the United States, which conferred the same right, but not R v Morgentaler. (Aside: in Canada, the "R" in R v Morgentaler stands for Rex or Regina - meaning the Crown. In criminal cases, which this is one is, the v stands for "against" to denote the adversarial nature of the proceedings, as in "Crown against Morgentaler". In civil cases, e.g. Moge v Moge, the v is pronounced "Moge and Moge".)

Henry Morgentaler

Dr. Morgentaler was born in Poland in 1923. He was also Jewish. Due to his time and place of birth, he was imprisoned in Nazi concentration camps during World War II. After the war, he immigrated to Canada to study and practice medicine. From the beginning he had an interest in reproductive health, becoming one of the first physicians to perform vasectomies, implant intrauterine devices (IUD, a form of birth control), and provide birth control pills to unmarried women.

After making an appearance before the House of Commons Health and Welfare Committee in 1967, which was investigating the issue of illegal abortion, where he stated that women should have the right to safe abortion, Dr. Morgentaler was inundated with requests from women for abortions. Initially, he refused to break the law:

"I hadn't expected the avalanche of requests and didn't realize the magnitude of the problem in immediate, human terms. I answered, 'I sympathize with you. I know your problem, but the law won't let me help you. If I do help you, I'll go to jail, I lose my practice—I have a wife and two children. I'm sorry, but I just can't!'

Eventually, when the two other physicians in the area who performed abortions became unavailable, Dr. Morgentaler grew tired of sending his patients to the emergency department for substandard abortions. Women were dying from improperly performed abortions, sometimes self-performed. According to this Globe and Mail article, "hospitals had entire wards designed for women who'd had botched abortions" and Toronto General Hospital received 75 requests for abortions per day but performed only six per week.

In 1969 in Montreal, Dr. Morgentaler set up one of his first abortion clinics, in direct contravention of the law which required the woman obtain approval from a "Therapeutic Abortion Committee" (TAC) at a hospital. Birth control was finally legal but was not widely available. Abortions could not be performed in private clinics. They could not be performed in cases of rape or incest. They could only be performed if the woman's life was in danger and only then if she received approval from the TAC.

If one did not obtain such approval, the provider of the abortion had committed a crime contrary to the Criminal Code of Canada, punishable by a life sentence. (Spoiler alert: despite being found unconstitutional almost 30 years ago, the provision is still in the Criminal Code. This is sometimes called a "zombie law" and is something the current Government of Canada is in the process of changing.)

Therapeutic Abortion Committees

Though women were required to obtain the approval of a Therapeutic Abortion Committee, hospitals were not required to establish them. Many hospitals chose not to do so with only every third hospital having a TAC. When a hospital did have one, some committees never met or met extremely infrequently. When they did meet, the TAC determined whether to approve the abortion without seeing the woman and based on subjective opinion, with no right of appeal. This left women with significant barriers to obtaining an abortion, even if it threatened their lives.

Dr. Morgentaler goes to prison

In starting his private clinic in Montreal where abortions were performed, Dr. Morgentaler attempted to show the provincial and federal governments that abortions could safely be performed outside of a hospital environment. Rather than health inspectors, the police were sent. Dr. Morgentaler was criminally charged.

In the early 1970's, Dr. Morgentaler was tried three times for contravening the criminal prohibition on abortion. He raised the defence of necessity, arguing that as a physician he had a duty treat his patients. The jury acquitted him. But in a move that was entirely without precedent and that is now currently illegal, the Quebec Court of Appeal vacated the acquittal and substituted a conviction. The Supreme Court of Canada (SCC) agreed, stating that the risk to the woman's health was not immediate. (Now, an appellate court can only overturn an acquittal and order a new trial, they cannot substitute a conviction where a jury has acquitted the accused. This is termed the Morgentaler Amendment to the Criminal Code, and is the result of Pierre Elliott Trudeau's government.)

Dr. Morgentaler was out on bail while awaiting the results of the appeal to the Supreme Court. After losing the appeal, he was imprisoned for ten of the 18-month sentence in defiance of the legal custom of parole after one-third of the sentence has been served and during which he suffered a heart attack while in solitary confinement. The Quebec Minister of Justice sets aside his conviction and ordered a new trial. After the new trial, Dr. Morgentaler was acquitted.

Meanwhile, while out on bail and during his appeals, Dr. Morgentaler had been performing abortions. While in prison, he was tried and acquitted of charges relating to those abortions.

No jury ever convicted Dr. Henry Morgentaler of any crime. Despite this, he spent ten months in prison for helping his patients terminate their pregnancies and for fighting a law that was eventually found unconstitutional.

Dr. Morgentaler fights back

The first time Dr. Morgentaler asked the courts to strike down the abortion laws in place was during his 1974 appeal of the Quebec Court of Appeal's substitution of his conviction. At the Supreme Court of Canada, Dr. Morgentaler argued that a) abortions were now safe and so the danger sought to be avoided by the law no longer existed and b) there was no true criminal law purpose to the law and therefore it must be struck down. The majority of the SCC disagreed, finding that the defence of necessity was not available due to the threat of danger to the woman not being imminent and also that despite the safety of abortions, there was still a valid criminal purpose to the law.

In 1983, a year after the Canadian Charter of Rights and Freedoms (the Charter) came into force, Dr. Morgentaler opened abortion clinics in Toronto and Winnipeg. Police quickly raided the Toronto clinic and charged Drs. Henry Morgentaler, Leslie Frank Smoling and Robert Scott with unlawfully procuring miscarriages. With the advent of the Charter, Dr. Morgentaler finally had tools with which to fight back.

Dr. Morgentaler argued that the criminal prohibition against abortion in Canada violated section 7 of the Charter, which provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Charter rights are subject to section 1, which provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In other words, Charter rights are not absolute. If a court finds a Charter right has been infringed, the government may show that the infringement is justified. When the Charter was relatively new, courts had to interpret section 1 and come up with a legal test to see whether or not the Crown had met the requirements. This case is called R v Oakes and the legal test is:

1. The Crown must establish that the law meets a "pressing and substantial" need.
2. The law must be proportional, specifically, the provision in question must

• Be "rationally connected" to the law's purpose;
• "Minimally impair" the Charter right that is infringed; and
• The salutary effects must outweigh the deleterious ones (the law must be "proportionate").

The Morgentaler case is lengthy, but the essence of it is that a majority (5-2) of the judges of the Supreme Court of Canada agreed that the Therapeutic Abortion Committee regime infringed section 7 and was not saved by section 1 because the law was not "minimally impairing". Chief Justice Dickson wrote at paragraph 22:

Section 251 clearly interferes with a woman's bodily integrity in both a physical and emotional sense. Forcing a woman, by threat of criminal sanction, 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. Section 251, therefore, is required by the Charter to comport with the principles of fundamental justice.

Dickson, CJC, went on to find that the violation of s. 7 was not saved by s. 1, because the TAC regime was unfair, arbitrary, impaired s. 7 more than necessary, and the limitations on the rights of pregnant women were not proportionate to the objective. Other concurring opinions focused on the lack of TACs, the delays involved, and the risk to women's health.

Justice Bertha Wilson, Canada's first female Supreme Court justice, wrote that not only was it a violation of a woman's right to security of the person, but also of her liberty:

... the right to liberty contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives. 

 ... In essence, what [the legislative regime] does is assert that the woman's capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. ... She is truly being treated as a means - a means to an end which she does not desire but over which she has no control. She is the passive recipient made by others as to whether her body is to be used to nurture a new life.

Justice Wilson also found that the law violated a woman's freedom of conscience.

Note that the Supreme Court did not say that there could be no criminal law against abortion, only that this regime did not pass constitutional muster. Thus, the criminal prohibition against abortion in Canada was found unconstitutional in 1988 in R v Morgentaler.

Attempts to criminalize abortion after R v Morgentaler (1988)

In spring 1988, Prime Minister Brian Mulroney attempted to pass a bill with a new legislative regime criminalizing abortion. The bill did not pass the House of Commons.

In October 1989, Dr. Morgentaler opened a clinic in Nova Scotia and informed the press that he was performing abortions. The province had passed legislation prohibiting abortions at private clinics. After being charged with contravening the provincial law, which carried a fine between $10,000 and $50,000, Dr. Morgentaler again took his case all the way to the Supreme Court, arguing that the law was in "pith and substance" a criminal law, which is the jurisdiction of the federal government, not provincial government. The Court unanimously agreed and struck down the law.

In November 1989, the federal government introduced Bill C-43 An Act Respecting Abortion. It passed the House of Commons but was met with a tie vote in the Senate. As a result, there is no criminal prohibition against abortion in Canada.

Present day

Many critics of the current state of the law point out that Canada is a relative rarity in that there are no laws prohibiting abortion whatsoever. This does not mean, however, that abortions will be performed at any point during a woman's pregnancy. The decision is between the woman and her doctor as a medical procedure bound by medical and personal ethics of both the patient and physician.

There are relatively few physicians who perform abortions in Canada and some jurisdictions have had such shortages that the province must send patients elsewhere to obtain abortions (until recently, it was impossible to obtain an abortion in PEI). Absent life-threatening circumstances, physicians in Canada will only terminate a pregnancy before the 24th week (the age of viability). Finally, while Dr. Morgentaler trained approximately 100 doctors in how to provide safe abortions, there is a concern that fewer doctors are receiving training. Some medical schools in Canada provide no education on abortion at all. Those that do, provide limited information.

For a more details on abortion laws in Canada, please see this Parliamentary paper, Abortion in Canada: Twenty Years After R v Morgentaler.

Despite their restrictions, Canada and the United States are considered to have fairly liberal laws on abortion. Many other jurisdictions, such as South America and Asia, only allow for abortion in circumstances where the woman's life is in danger, regardless of other circumstances.

In addition to fighting numerous lengthy legal battles, being imprisoned, and receiving countless death threats, Dr. Morgentaler had his medical licence suspended in 1976 for performing illegal abortions. His clinic in Toronto was firebombed in 1992 with the building being so badly damaged it needed to be demolished and rebuilt.

Dr. Morgentaler was named a Member of the Order of Canada on July 1, 2008. He died May 29, 2013.