The Morgentaler Amendment: Why Canadians Owe Their Freedom to an Abortion Doctor

morgentaler prison

January 28th marks the twenty-eighth anniversary of the Morgentaler decision by the Supreme Court of Canada. On that day in 1988, a majority judgment struck down section 251 of the Canadian Criminal Code thus legalizing abortion in Canada.

Despite every subsequent attempt by the Conservatives to make abortion illegal again, the women of Canada remain free to choose.

And it was all thanks to Dr. Henry Morgentaler.

Henry Morgentaler was born in 1923 in Lodz, Poland, and spent five years in a concentration camp where his mother and sister perished at the hands of the Nazis. He came to Canada after the Second World War, went to medical school and became a doctor.

Somewhere along the way he became a humanist, and after witnessing the suffering caused by so many botched abortions – entire hospital wards were devoted to them – and hearing the pleas of desperate women, he began performing abortions, then illegal, in safe, clinical environments.

At the time, abortions fell under Section 251 of the Canadian Criminal Code. Under Section 251, abortions were illegal except in very specific circumstances. In order for a woman to get an abortion, the law required that the decision be put to a panel of three doctors who would assess whether it was required under the circumstances. The only criterion was the health of the mother. If the panel agreed that carrying the pregnancy to term would put the woman at risk, the right to an abortion was granted, after which a fourth doctor would have to administer it.

The law was an impractical one. Many hospitals didn’t have enough doctors to form the required panel and the extra one to perform the abortion. The notion of a woman’s health was applied subjectively and could mean her physical or mental well-being. In many major cities the decision was often rubber stamped and granted to anyone who asked. In more conservative and rural areas, hospitals seemed to find any excuse not to grant a woman an abortion, and so the botched back alley abortions continued, and women continued to die as a result.

Morgentaler was tired of seeing this happen, and he performed abortions on any woman who came to him for help, some even secretly referred to him by his fellow doctors. Eventually he was arrested. He bravely told the authorities to go ahead and prosecute, no jury would convict him.

And he was right.

Despite the fact that he had clearly broken the law, he was acquitted every time.

In 1974, the year following his first trial, with no legal precedent behind it, the Quebec Court of Appeal overturned his acquittal and replaced it with a conviction. Morgentaler was sentenced to 18 months in prison which he began serving in 1975. In prison he suffered a heart attack while in solitary confinement and was briefly transferred to a nursing home. Despite legal custom that made a prisoner eligible for parole after serving a third of his sentence, Morgentaler was only released after ten months, in 1976.

His treatment by the authorities caused massive outrage and protests erupted all over the country. The government recognized that was time for change.

The year of his release from prison, the Canadian Government under Prime Minister Pierre Elliot Trudeau changed the law so that appeals courts COULD NOT overturn an acquittal by a jury.

This amendment, known as the Morgentaler Amendment, was created as a direct result of his defiance of and persecution by the authorities.

In other words, before Morgentaler, if a jury found you not guilty of a crime, say, for example, firebombing a clinic and killing a doctor, a higher court could simply say “No, I don’t think so,” make it a guilty verdict, and send you to jail.

Following the Amendment, all an appellate court can do is order a new trial.

Whether you are Pro-Life, Pro-Choice, male or female, religious or not, the Morgentaler Amendment affects and protects YOU.

It guarantees that you won’t arbitrarily be sent to jail if you are acquitted by a jury of your peers.

And for that alone, Morgentaler is a hero.

On May 29, 2013, Morgentaler died, and news sources everywhere erupted with timelines and debates about the morality of what he did.

The perceived morality or immorality of what Morgentaler did is irrelevant.

Regardless of your position on the subject, remember that any time you find yourself facing criminal charges and end up a free man at the end of your trial you owe your freedom in part to an abortion doctor.

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