R v. Morgentaler, 25 Years Later
Key figures in the trial of Henry Morgentaler reflect on the evolution of social justice in Canada.
When police raided Henry Morgentaler’s Harbord Street clinic in July, 1983, no doors were kicked in. “There was a policewoman and a policeman undercover who had booked an appointment,” Dr. Robert Scott recalls, addressing a packed hall at the University of Toronto Tuesday night, at an event marking the 25th anniversary of the Supreme Court decision decriminalizing abortion. “I was actually doing the procedure when the raid started. They banged on the door and I said, ‘I’m in the middle of a case.'”
Scott stifles a laugh at the relatively subdued beginnings that led to such revolutionary ends. “They were very nice in the sense they said, ‘Go ahead and finish the case.'”
His arrest, along with that of Dr. Frank Smoling and Morgentaler himself, set in motion a chain of events that would test the repatriated constitution of 1982, cementing the foundation of civil rights in Canada. Presented by the David Asper Center for Constitutional Rights, the faculty of law’s panel discussion was convened to take legal and sociopolitical stock, comparing where we are today with the country brimming with volatile change in the early 1980s.
“Our job was to change the consciousness of the country,” recalled Carolyn Egan, longtime trade unionist, political activist, and a key witness in the Morgentaler trial. To Canadians 25 years later, she said, the draconian controls limiting access to abortion may be hard to imagine. Therapeutic Abortion Committees—three-doctor panels with the assumed power of federal judges, so argued Morgentaler’s defence—decided whether an attempt to discontinue a pregnancy was justified. In almost every case, these were doctors with no personal knowledge of a patient’s background, medical or otherwise, and often predominately male. And even that “service” wasn’t available to all. It would depend on resources available at each hospital, often leaving poor, rural, or First Nations communities behind.
Technically, abortion was permitted—it could be done without threat of imprisonment—but only when performed at a recognized hospital, with a labyrinthine bureaucratic approval process. “Canada was touted for having a universal health care system,” Egan said, “but not for the women we were seeing.” Privilege, in many cases, appeared to be decisive.
Morgentaler recognized the same gaping inequalities, setting up shop on Harbord in response.
Five years later, that street teemed with thousands of supporters as word came back from Ottawa: “the appeal is allowed.” Describing a scene of euphoria at the Supreme Court, Egan still seems dwarfed by the enormity of that decision, even 25 years later. “[It’s] overwhelming to build a social movement and to see it succeed,” she said.
In essence, the clinics for which Morgentaler, Scott, and their associates were persecuted were symbols of resistance, Egan suggested. Looking back on the early ’80s now, we can see a significant cluster of social justice breakthroughs that were made at that time: the Toronto bathhouse raids of 1981, leading to the City’s first Pride marches; the repatriation of the constitution in 1982; and the arrest of Henry Morgentaler in 1983, in turn leading to the enshrinement of abortion rights in Canada five years later.
Recognizing this, Scott says, there’s no “big man of history” in the Morgentaler example. The advances already made by women generated the momentum that picked up energy with this case. But in 2013, rather than basking in the sunny side of history, the panel gave a tacit parting suggestion that we’re still feeling our way through the dark, not fully out of the woods. Prince Edward Island currently has no abortion facilities, the audience was reminded, and Ontario Tories routinely threaten to re-open the issue if elected.
“It takes very little change in society to backtrack, to re-introduce slavery, sexism, racism,” Scott warned. “The freedoms that we’ve achieved can be lost very easily.”
Second photo: a pro-choice rally on Roncesvalles last summer. Photo by jer1961 from the Torontoist Flickr Pool.