Daily BrewAbortion-rights crusader Dr. Henry Morgentaler left a deep but mixed legacy to Canada
Dr. Henry Morgentaler was one of those rare people whose strength and perseverance led to a fundamental change in Canadian society.
But unlike the Famous Five, the women behind the landmark ruling on women's equality known as the Persons Case, Morgentaler won't have a statue on Parliament Hill. His legacy remains deeply divisive.
Pro-choice advocates will revere him as the doctor who, despite legal harassment and physical threats, championed a woman's right to obtain an abortion without being vetted by a committee of doctors who would decide whether or not it's necessary.
Anti-abortion activists will revile him for opening the door wide to abortion on demand and personally ending thousands of pregnancies at his Toronto clinic.
The Holocaust survivor, who died Wednesday of heart failure at the age of 90, won a landmark ruling before the Supreme Court of Canada in 1988 that declared the existing restrictive abortion law unconstitutional. Attempts to pass new legislation in the wake of the decision failed and no government, including Stephen Harper's Conservatives, has been prepared to reopen the debate.
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It was the second of Morgentaler's three trips to the high court, having failed in 1976 to have the Criminal Code section on abortion struck down. The repatriation of the Constitution in 1982 and the institution of the Charter of Rights and Freedoms changed everything.
Morgentaler won again in 1993 when the Nova Scotia government tried to prevent the establishment of Morgentaler's free-standing abortion clinic in Halifax.
As Globe and Mail's legal reporter Kirk Makin noted Wednesday, Morgentaler's supporters remarked on his stubbornness and autocratic streak, his unwillingness to compromise. But for them, he was the right man for the times.
“Henry Morgentaler was the quintessential example of the power of one,” his lawyer, Morris Manning, told the Globe. “That one person showed the world with moral courage and commitment that oppressive laws, and those who apply them, can be changed.”
Morgentaler's legacy goes beyond the issue of abortion, Manning contended. The 1988 ruling signalled that judges were not afraid to use the Charter to implement change and correct an injustice.
“Quite apart from the abortion issue, Dr. Morgentaler will be remembered as a person who took on the legal system and forced it to be fair,” Manning told the Globe. “He will also be remembered as a person who took on the medical establishment and forced them to remember what the Hippocratic Oath was really about.”
CBC News noted Morgentaler's early battles in the 1970s also had an impact on the legal system. When a Quebec jury refused to convict him in 1974, the Quebec Court of Appeal rejected the acquittal and found him guilty.
The federal government changed the law the following year, eliminating an appeal court's power to reverse a jury acquittal, limiting it to ordering a new trial.
The abortion fight also changed the balance in the doctor-patient relationship, said Maria Corsillo, longtime director of Morgentaler's Toronto clinic.
“Dr. Morgentaler’s fight for abortion rights for women changed the way patients see themselves,” she told the Globe. “Once that started to happen, the democratization of health care was almost inevitable.”
But as the Vancouver Sun's Shelley Fralic pointed out Thursday, that there are legions of Canadians who see Morgentaler (ironically, given his personal experience) as a mass murderer, not as someone who spared women the risk of a back-alley abortion.
Anti-abortion groups still campaign against the practice, picketing clinics and displaying graphic photos of aborted fetuses. Four years after the 1988 Supreme Court decision, Morgentaler's Toronto clinic was firebombed.
"Abortion was, and is, one of the most divisive of modern society's hot button issues, evidenced by the murder of abortion doctors around the world," Fralic wrote. "In 1994, the story hit hard in B.C. when a sniper wounded Dr. Garson Romalis while he was sitting in his Vancouver home.
"Romalis also survived a 2000 stabbing. The battle has continued unabated — as recently as May 9, thousands of anti-abortionists marched on Parliament Hill in Ottawa demanding politicians officially reopen the abortion debate."
[ Related: Harper accused of silencing anti-abortion protesters ]
Abortion and the right to life have exposed cracks in Harper's Conservative caucus as he's tried to clamp down on backbenchers' attempts to reintroduce the issue in Parliament via various motions.
C.S. Morrissey, a philosophy professor at the Catholic Redeemer Pacific College in Langley, B.C., argued Thursday in a Globe op-ed piece that Morgentaler's legacy includes an erosion of religious liberty.
"At first, the connection may sound ridiculous," he wrote. "But consider the way that opposition to abortion is frequently dismissed as private religious opinion and then removed from public debate."
Morrissey noted Langley Conservative MP Mark Warawa's attempt to get the Commons to deal with his motion on sex-selective abortion was quashed.
"Apparently Canada’s ruling elites continue to marginalize any debate about human rights that could even remotely challenge the status quo on abortion in Canada," he wrote.
Since the 1988 ruling, those who see abortion as a violation of human rights "have been politically and culturally sidelined," Morrissey contended.
[ Related: Conservatives quiet, other parties react to death of Doctor Henry Morgentaler ]
He acknowledged that it is often the religious who advocate against abortion, but cited French philosopher Rene Girard, who points to the evolution of religious protections against violence.
“Micro-eugenics is our new form of human sacrifice," Girard argued, according to Morrissey. "We no longer protect life from violence. Rather we smash life with violence."
