Celebrating Morgentaler’s Legacy

By: Kelsey Sunstrum

henry morgentaler

January 28 is an important day for women in Canada. Today marks the 26th anniversary of the monumental R. v. Morgentaler case, which afforded women the right to abortion, and ultimately, to take control of their body and their ability to reproduce. Before this ruling, Canadian women were only able to obtain abortions from designated hospitals and after being granted approval by the hospital’s three-doctor Therapeutic Abortion Committee.

The 1988 ruling was a long time coming for abortion activist, Dr. Henry Morgentaler, who passed away this past May. In 1967, Morgentaler presented a brief to the House of Commons on the topic of illegal abortions, stating that women should not have to risk their lives for the procedure. At this time, if a woman was not granted hospital approval, her abortion would not be performed, which forced women to turn to different, often unsafe, outlets to end their pregnancy. After this, women began reaching out to him for abortions though he refused at the time, referring women to two other doctors.

However, in 1968, knowing that Canadian women needed safer and more accessible abortion practices, he opened the first freestanding abortion clinic in Canada, the Montreal Morgentaler Clinic. In 1970, his clinic was raided by police and he was charged by authorities for performing illegal abortions.

This would be the first of many times that Morgentaler was charged for offering safe abortions to women. Throughout the early- to mid-1970s, Dr. Morgentaler was charged and acquitted multiple times for the services provided by his clinic. Despite this, in 1983, he opened two more clinics in Toronto and Winnipeg, both of which were also raided multiple times over the years.

Later that year, Dr. Morgentaler, as well as Dr. Leslie Frank Smoling and Dr. Robert Scott, were charged with performing illegal abortions during a raid of the Toronto clinic. After appealing the charges, the Supreme Court overturned section 251, the previous abortion law, in 1988.

Morgentaler, Smoling, and Scott held the position that section 251, which declared that women could only receive an abortion after an approval from an in-hospital committee, was unconstitutional based on section 7. Section 7 defends the autonomy and personal rights of Canadian citizens. There are three types of protection in this section, and Morgentaler argued that section 251 violated the security to person type. This type denotes primarily an individual’s ownership of their body, health, and psychological well-being. Because of this ruling, abortions are now considered medical procedures that are governed by the Canada Health Act rather than the criminal code.

The legacy of this case is far-reaching. Before, women’s reproduction was dictated by an in-hospital approval committee. Morgentaler fought for women’s right to make their own decisions about their body, and to have access to safe and healthy outlets. Unfortunately, on the 26th anniversary of this ruling, Canada’s abortion services still have much to be desired.

It is almost unbelievable to think that Prince Edward Island currently offers no surgical abortions. P.E.I. will cover abortions performed off-Island if they are performed in a hospital and with a referral from an in-Island doctor. It will not cover abortions taken place in private clinics. Poorer and younger women are impacted the most by P.E.I.’s lack of abortion services. Many do not have access to obtain off-Island procedures due to costs, working schedules, family pressures, transportation, and a lack of information about abortion services. The scary truth is that abortions are still done in P.E.I. Women self-induce abortion which can result in infertility, suicidal thoughts, and a decreased likelihood of pursuing academic goals.

New Brunswick’s abortion access is not much better than P.E.I. Abortions are publicly funded if they are completed in a hospital with the approval of two doctors. However, if they are performed in a clinic, the woman must pay the expenses as the province will not cover the cost of the procedure outside of publicly funded institutions. Moreover, only obstetrician/gynecologists are permitted to carry out the surgery whereas common practice in Canada is that the family physician is responsible for the procedure.

Women in rural Canada are also at an extreme disadvantage in terms of proximity and quality of abortion services. Rural physicians who perform abortions face the following obstacles: operating room scheduling; logistics; extremely long waiting lists; geographic and professional isolation from colleagues; absence of replacement providers; and fear of response from community. Often, the distance between rural areas and abortion providers is just too far for some women with less resources and/or support.

Rural communities are much less likely to have clinics dedicated solely to abortion procedures, so local hospitals and providers need to work together. Because of moral and religious opposition, this can be quite a difficult feat. Moreover, a very real problem in rural communities is the rate of burn out experienced by physicians performing these services as they are often the only provider in close proximity.

Unfortunately, it is clear that abortion and reproductive rights and services in Canada leave much to be desired. For the rights and services Canadian women do have, thank you, Dr. Henry Morgentaler. May his brave spirit be remembered, and the historical R. v. Morgentaler ruling which gave women in Canada greater choice.

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