Dr. Henry Morgentaler, March 19 1923-May 29 2013, was and will always be associated with the case that bears his name: R v Morgentaler.[i] Despite the many awards and honours he received during his life, including being named as a Member of the Order of Canada in 2008, his greatest accolade was winning the fight for women’s freedom to choose.
Prior to the Supreme Court’s 1988 decision in R v Morgentaler, Prime Minister Pierre Elliott Trudeau had liberalized abortion laws in 1969. Before this period, abortion was outright banned in Canada. Under Trudeau’s reform, section 251 of the Criminal Code allowed for abortions only where they would be performed at accredited hospitals with proper certification from the hospital’s Therapeutic Abortion Committee. The committee was comprised of three doctors who would assess women’s candidacy for a certificate based only on medical necessity.
As Margaret Wente of the Globe and Mail has reported, at this period in time “Toronto General Hospital got 75 requests a day and performed six abortions a week.” Many women, in fact most, were forced to carry their child to term. This affront to women’s freedom of choice is something Dr. Morgentaler fought his entire career at his own risk. This is why he and two partners, Dr. Leslie Frank Smoling and Dr. Robert Scott, set up an abortion clinic in Toronto specifically for women who had been denied certificates from a Therapeutic Abortion Committee giving rise to the ground-breaking decision in 1988.
Since the 1988 decision in Morgentaler, which struck down section 251 of the Criminal Code, the abortion issue is not quite resolved in Canada. As many are well aware, Morgentaler left a legal void which no government has been able or willing to fill. Even still, women now have the right to a safe abortion without the fear of imprisonment. The impact for women’s rights is best described in the reasoning of Justice Bertha Wilson:
“The question then becomes whether the decision of a woman to terminate her pregnancy falls within this class of protected decisions. I have no doubt that it does. This decision is one that will have profound psychological, economic and social consequences for the pregnant woman. The circumstances giving rise to it can be complex and varied and there may be, and usually are, powerful considerations militating in opposite directions. It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society at large. It is not just a medical decision; it is a profound social and ethical one as well. Her response to it will be the response of the whole person.” [241]
…
“The more recent struggle for women’s rights 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…It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. 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.” [242]
Dr. Morgentaler’s fight not only produced a decision which affirmed women’s right to choose, but also began a more sophisticated discussion of women’s rights altogether.
[i] R v Morgentaler, [1988] [1988] 1 S.C.R. 30, 63 O.R. (2d) 281. Morgentaler had previously challenged the abortion law at the Supreme Court in a pre-Charter dispute. This resulted in the decision of Morgentaler v. The Queen, [1976] 1 S.C.R. 616, in which the Supreme Court held it did not have the jurisdiction to strike down the law. Further, after the 1988 Supreme Court decision in Morgentaler, Dr. Morgentaler found himself back at the Supreme Court in the case R v Morgentaler, [1993] 3 S.C.R. 463, 125 N.S.R. (2d) 81, to challenge the authority of provinces who were attempting to regulate abortions in their respective jurisdictions. The Supreme Court ruled in favor of Dr. Morgentaler again, preventing provinces from regulating abortions through criminal law as it was out of their jurisdiction.
