PERSONAL VIEW J Fam Plann Reprod Health Care: first published as 10.1136/jfprhc-2013-100691 on 23 September 2013. Downloaded from Henry Morgentaler: model for the UK?

Vincent Argent

Consultant Obstetrician and BACKGROUND large Jewish community and the General Gynaecologist, East Sussex, UK The life of Henry Morgentaler (19 Jewish Labour Bund. Under the German 1 ’ Correspondence to March 1923 to 29 May 2013), the occupation, Morgentaler s father was Dr Vincent Argent; Canadian doctor and abortion rights killed by the while Henryk lived [email protected] activist, has important lessons for the with his mother and younger brother in Ł Received 16 July 2013 future of in the UK. the ódz´ ghetto. Eventually they were Revised 20 July 2013 is the only country in the taken to Auschwitz where his mother Accepted 21 July 2013 developed or developing world where died while the boys were sent to work in abortion is not a criminal offence (apart Dachau. On liberation, Henryk weighed from the Australian states of Victoria and a mere 32 kg and was sent to a displaced Australian Capital Territory). persons hospital. He went on to Morgentaler was, and still is, a house- to study medicine and met up with his hold name in Canada and, of all doctors childhood sweetheart and future wife, in the world, is the one most closely . They married in 1949 linked with women’s rights and self- and sailed to Canada on the SS Samaria. determination to choose to end their Morgentaler continued his medical pregnancy. studies, graduating from the Université de In the landmark case of Montréal in 1953. He practised as a 1988,2 the general practitioner in the east end of by copyright. ruling declared that the law prohibiting Montréal and was one of the first abortion was unconstitutional in the Canadian doctors to provide contracep- context of the Canadian ‘Charter of tive advice to single patients as well as Rights and Freedoms’. Abortion was married couples. decriminalised and, to this day, is no longer a criminal offence in Canada. The law neither condones nor condemns ABOLITION OF THE TAC PROCESS induced abortion. It remains for each While David Steel was introducing his province to decide on the availability and Private Members Bill to liberalise UK funding of induced abortion under the abortion law, many in Canada were also . concerned that abortion had been com- Morgentaler’s steadfast activism won pletely banned since 1869 but that illegal http://jfprhc.bmj.com/ many supporters but he was also vilified by abortions were common, with several his opponents; in 2008 he received hundred deaths per year. In a familiar Canada’s highest civilian order, the Order comment, Morton Shulman, the Chief of Canada. Morgentaler commented that Coroner of Ontario, said that pregnant he was proud to have realised his dream of daughters of the rich were sent to reliable a better and more human society. The cit- physicians who did abortions for cash, ation was “For his commitment to while he had the unpleasant experience on September 25, 2021 by guest. Protected increased health care options for women, of seeing the bodies of young women his determined efforts to influence who had died as a result of amateur abor- Canadian public policy and his leadership tions. In 1967, Justice Minister Pierre in humanist and civil liberties Trudeau, later Prime Minister, introduced organisations”. the Criminal Law Amendment Act, 1968–69, which was passed in May 1969 and which provided for abortions where MORGENTALER’S EARLY LIFE the health of the woman was in danger as To cite: Argent V. JFam Henryk Morgentaler was born in Łódz´, determined by a three-doctor hospital Plann Reprod Health Care in 1923 to Josef and Golda Therapeutic Abortion Committee (TAC). 2013;39:247–249. Morgentaler. His father was active in the The same Bill also legalised homosexual

Argent V. J Fam Plann Reprod Health Care 2013;39:247–249. doi:10.1136/jfprhc-2013-100691 247 Personal view J Fam Plann Reprod Health Care: first published as 10.1136/jfprhc-2013-100691 on 23 September 2013. Downloaded from acts and contraception. Trudeau’s most famous quota- Canadian law Morgentaler ranks with the Persons case tion was that “The State has no business in the bed- regarding the definition of Canadian women’s consti- rooms of the nation”. tutional rights as the UK Judicial Committee of the But the practice of requiring the approval of the Privy Council, then Canada’s highest court of appeal three-doctor TAC proved far more troublesome than ruled that women are persons equal to men. the UK requirement for two doctors’ signatures and The Supreme Court issued a 5-2 decision in the opinion formed in good faith. There were huge Morgentaler. The leading reply of Chief Justice variations between individual hospitals and provinces, Dickson and Judge Lamer was that Section 251 (the and many hospitals did not have TACs as there was no abortion provision) of the Criminal Code of Canada legal requirement to do so. infringed and denied the rights and freedoms of the Morgentaler campaigned for the abolition of the Canadian Charter of Rights and Freedoms. They TAC process. He was a humanist and staunch stated that state interference with bodily integrity and defender of the woman’s right to choose. He opened serious state-imposed psychological stress, at least in several clinics where he and his associates carried out the criminal law context, constitutes a breach of secur- abortions on request without going through a TAC. ity of the person. Section 251 clearly interferes with a While having many supporters in the Metropolitan woman’s physical and bodily integrity. Forcing areas, it is interesting that he received more support a woman, by threat of criminal sanction, to carry a from largely Roman Catholic Quebec than the more fetus to term unless she meets certain criteria unre- conservative Anglo-Saxon Maritime and Prairie pro- lated to her own priorities and aspirations is a pro- vinces. For Morgentaler, there followed many years of found interference with a woman’s body and thus an protests, legal battles and prosecutions. Between 1973 infringement of security of the person. A second and 1975, he was prosecuted for defying the law in breach of the right to security of the person occurs Quebec but on each occasion he evoked the legal doc- independently as a result of the delay in obtaining trine of necessity and each time was acquitted by the therapeutic abortions caused by the mandatory proce- . The overturned the jury dures of s.251 which results in a higher probability of acquittals and convicted Morgentaler and he was sen- complications and greater risk. The harm to the psy- tenced to 18 months in prison from March 1975. chological integrity of women seeking abortions was Shortly after, under the new Liberal Prime Minister, also clearly established. Any infringement of the right by copyright. , Parliament changed the law so that to life, liberty and security of the person must Appeals Courts could no longer overturn jury verdicts comport with the principles of fundamental justice. but only order a new trial. This landmark ruling is The overall result was that Canadian law regulating known as the Morgentaler Amendment to the abortion was struck down and this is still the case. Criminal Code of Canada. Morgentaler spent 10 months in prison. He spent MORGENTALER’S LATER LIFE time in solitary confinement, lost weight from his Curiously, this thin and bowed, bearded man, lacking meagre frame and suffered a heart attack. On his his own teeth since earlier years, was attracted and release, he became even more of a public hero to attractive to many women. He was a zealot, polyglot women and he continued his abortion practice and and polymath. After his stay in prison, he broke up opened a new clinic in . He was supported by with his childhood sweetheart. He remarried twice the Canadian Association for the Repeal of the and also, by his own admission, had many mistresses. http://jfprhc.bmj.com/ Abortion Law (CARAL), and by 1983 a Gallup poll His biographer, Catherine Dunphy, wrote in showed that 72% of believed that the deci- Morgentaler: A Difficult Hero that he was a man who sion to have an abortion should be solely that of the loved women and couldn’t be monogamous. The loss pregnant woman and her doctor. of his mother at Auschwitz haunted him and he said Eventually, following further conviction in Ontario, that throughout his life had had been looking for the Morgentaler again appealed to the Supreme Court of mother’s love that he missed. He felt that this Canada, stating that the law was unconstitutional on explained his relationships with women as, deep on September 25, 2021 by guest. Protected the grounds that it denied women the right to life, down, he was afraid that they would leave him or stop liberty and security of the person. On 28 January loving him. His behaviour was “a psychological strat- 1988, the Supreme Court of Canada gave its land- egy to make sure there would always be a woman mark decision in R v Morgentaler. It was a criminal who loves me”. He died with his beloved third wife, law case but the Supreme Court examined women’s Arlene Leibovitz, at his side. rights in the context of the Charter of Rights and Freedoms. In Morgentaler, the Supreme Court ruled SIGNIFICANCE OF MORGENTALER FOR THE UK that the federal government’s criminal legislation was What is the importance of Morgentaler for the UK? unconstitutional and that women had the same Should England, Wales and Scotland follow Canada control of their bodies as did men. In a case that may and decriminalise induced abortion? The Abortion have persuasive analogy for changes to UK law, in Act 1967 (as amended by the Human Fertilisation and

248 Argent V. J Fam Plann Reprod Health Care 2013;39:247–249. doi:10.1136/jfprhc-2013-100691 Personal view J Fam Plann Reprod Health Care: first published as 10.1136/jfprhc-2013-100691 on 23 September 2013. Downloaded from

Embryology Act 1990) was passed 46 years ago and self-administer abortifacients. Would it not be better if there have been many attempts to make the law more there was no law and that women, supported by their liberal or more restrictive. The politicians merely heath care advisers and providers, could choose abor- leave such attempts to private members allowing votes tion based on their own free will and their own on conscience. The lack of action after the 2007 ethical and moral judgements of what is best while House of Commons Science Technology Select health care services provide what is deemed reason- Committee Review of Scientific Developments able by the majority of society? Those who find Relating to Abortion shows how Parliament has little induced abortion abhorrent and immoral would be wish to get involved in tackling the law. free to make their own decisions accordingly. The law is a blunt instrument and can never recon- R v Morgentaler was a Canadian Supreme Court cile the pro-choice lobbyists and the pro-life lobbyists decision. The problems of abortion practice and the who are often vehement in their wish for changes that views of the majority of the people were similar to the are anathema to their opposition. The recent UK. The jurisdictions are similar and the legal deci- Parliamentary Inquiry into Abortion on the Grounds sion may be persuasive, even if it does not set a prece- of Disability, July 2013, recommends that Parliament dent, in the UK Supreme Court. Should the UK review the law surrounding Section 1(1)(d) concern- follow the modern progressive step taken by Canada ing fetal disability, but again politicians will find it and declare that the Abortion Act 1967 is a breach of impossible to produce a law that satisfies widely diver- the Human Rights Act 1998 provisions on the funda- gent views and they are unlikely to take any action. mental rights and freedoms of the individual and The recent ham-fisted Care Quality Commission thereby decriminalise abortion? investigation into the requirement for two doctors’ signatures on the HSA1 form showed how UK abor- Competing interests None. tion law languishes in an era of medical paternalism. Provenance and peer review Not commissioned; externally The general pragmatic public view rarely gets a voice. peer reviewed. Most people agree that women should be able to choose early abortion without needing sanction by doctors, but have some concerns about later abortions REFERENCES by copyright. around the stage of viability and abortion for other 1 Obituary – Henry Morgentaler. http://www.thelancet.com/ reasons such as minor fetal abnormality and sex selec- journals/lancet/article/PIIS0140-6736%2813%2961517-2/ tion. The Abortion Act 1967 is fit for purpose in the fulltext?rss=yes [accessed 18 July 2013]. sense that criminal activity has all but disappeared 2 R v Morgentaler. http://www.law.ualberta.ca/centres/ccs/rulings/ and there are few prosecutions of women who rvmorgentaler.php [accessed 18 July 2013]. http://jfprhc.bmj.com/ on September 25, 2021 by guest. Protected

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