embraced the cause that would make him a household name, Henry Morgentaler was just another Jewish doctor working in Canada’s most vibrant city. A survivor of Auschwitz and Dachau, Morgentaler had immigrated to Montreal in 1950 at the age of twenty-six, completed a medical degree, and passed up a high-flying research career for a modest family practice in the city’s working-class east end. Not that he wished to repair to the quiet life of a family physician. He is known for his almost seething energy and a passion for social justice. He eventually joined the Humanist Fellowship of Montreal, a group that shared his commitment to rational inquiry and his disdain for religious dogma. One of its board members at the time was a certain Pierre Elliott Trudeau, and after he vacated his seat to move to Ottawa in 1965 the headstrong doctor was elected to replace him.
Two years later, as justice minister in Lester Pearson’s Liberal government, Trudeau undertook a reform of the country’s strict abortion law. The bill he introduced would permit abortions to safeguard a woman’s life or health, but only if they were performed in an accredited hospital and approved by a three-member therapeutic abortion committee. When the bill was referred for public hearings before the Commons Health and Welfare Committee, Morgentaler presented on behalf of the Humanist Fellowship. He argued vigorously that women should have unrestricted access to abortions throughout the first trimester of pregnancy — no questions asked about their circumstances or their reasons. One incredulous committee member could not quite believe what he was hearing. “Without giving a reason?” he asked. “Yes,” replied Morgentaler in his soft Slavic accent.
Neither the Commons committee nor respectable public opinion were yet ready to embrace this notion of abortion on demand, and the bill was passed into law a year after Trudeau became prime minister. Morgentaler, meanwhile, returned to normal life, with one significant difference: his public stance on abortion had made him famous. He began to receive inquiries from women all over Canada who were desperate for unsanctioned abortions (sometimes for their daughters), and who assumed that he was willing to practise what he preached. At first, he fended them all off, explaining that as fiercely as he believed in their right to choose he was not prepared to risk his medical licence or his freedom. But as the pleas continued, and as he started hearing stories about these same women being mutilated in backstreet procedures, he began to rethink his position.
Morgentaler performed his first abortion in 1968, for the eighteen-year-old daughter of a close friend. The following year, he wound up his family practice and, in the same location, opened a family planning clinic that would offer first-trimester abortions outside the provisions of the law. Although he did not advertise his services, he made no secret of his newly chosen specialty. He considered the abortions he was performing acts of not only compassion, but of civil disobedience.
So did the authorities. On the morning of June 1, 1970, three Montreal police officers appeared at the doors of the Champlain Medical Clinic. Morgentaler was in his office eating a sandwich after working with a teenager from Minnesota. He was escorted to the station for questioning and, after confirming that he had indeed been providing abortions, was released. For the next three days, he and his staff continued to provide their usual services at the clinic, unsure what would happen next. On the fourth day, the police returned, this time with a warrant for Morgentaler’s arrest. He spent that night in a jail cell, his first confinement since the concentration camps, and his resolve strengthened.
Today, some forty years on, the abortion landscape in Canada is utterly transformed. The law Henry Morgentaler hated and defied is gone, struck down by the Supreme Court in 1988. Every year, about 100,000 safe, legal abortions are performed in Canada, just over half in hospitals and the rest in free-standing clinics like the ones Morgentaler still runs. Not all abortions are covered by provincial health insurance — and access remains a serious problem, especially for rural and aboriginal women — but overall it is a dramatic improvement over the circumstances that motivated Morgentaler to take action. Furthermore, a woman’s right to choose enjoys such broad public support that any substantial threat to it is off the table, even for the current Conservative government. While many have contributed to this achievement, most of the credit must go to one man — a useful lesson for the contemporary right-to-die movement.
now stands where abortion did in the 1960s. The section of the Criminal Code that prohibits “aiding or abetting” a suicide — i.e., prescribing a lethal dose of medication for a dying patient to self-administer at some later date — carries with it a maximum penalty of fourteen years’ imprisonment. (Assisted suicide is not to be confused with euthanasia, in which a physician administers the lethal dose directly by injection, and which is covered under homicide law.) And just as the old abortion law caused needless suffering to some pregnant women, the law against assisted suicide causes needless suffering to some dying patients.
While Canada provides a relatively high quality of palliative care to those whose deaths are imminent, some pain cannot be relieved by any pharmacological means acceptable to the patient. More important, not all suffering is rooted in physical pain. Much of it is existential, having more to do with loss of dignity or independence, or the ability to do the things that give life meaning. There are no drugs that are effective against this kind of distress, the kind most frequently cited by patients who wish to exercise some control over the manner and timing of their own deaths. Ultimately, the case for assisted suicide boils down to compassion for those who are suffering, and respect for people’s autonomy over their own lives.
The Catholic Church objects to assisted suicide because it regards suicide itself as a sin, while non-religious pro-life organizations worry that if this option became legally available then the weak and vulnerable might be pressured into choosing it, but most Canadians reject these arguments. Opinion polls taken in the past decade have consistently shown that a strong majority believes doctors should be legally permitted to assist the deaths of their patients. This level of public sympathy is thanks in part to Sue Rodriguez, who was diagnosed in her early forties with amyotrophic lateral sclerosis (Lou Gehrig’s disease), a progressive, degenerative condition that is invariably fatal. She knew that over time she would increasingly lose control of her motor functions, until eventually she would be unable to speak, swallow, or even breathe on her own. Rather than wait for the illness to kill her slowly, she wanted to choose the time and manner of her death. However, she also knew that when that time arrived she would need the assistance of a physician who could provide her with the necessary medication. Unwilling to ask any doctor to risk prosecution, she decided to challenge the law against assisted suicide, arguing that it violated her right to life, liberty, and security of the person under the Charter of Rights and Freedoms. Her case went all the way to the Supreme Court, where in 1993 it was lost by a narrow majority of 5–4.
Since then, there has been no further challenge in Canada to the law against assisted suicide, nor any legislative movement toward reforming it. The current Conservative government firmly opposes legalization, and none of the other federal parties have taken up the cause, despite strong public support for it. They seem to have come to the reasonable conclusion that it’s not worth provoking the pro-life lobby. Consider that while Henry Morgentaler was backed, and to some degree bankrolled, by high-profile women’s groups advocating for a sizable segment of the population, the number of people that stand to benefit from assisted suicide is much smaller — 5,000 at most, extrapolating from jurisdictions such as the Netherlands and Oregon, where the practice is legal, and this number divided equally between men and women. The harshest reality is that the seriously sick and dying do not form an effective lobby group, and can therefore be ignored without political cost. In recent years, Bloc Québécois MP Francine Lalonde has tabled a series of private member’s bills aiming to legalize both euthanasia and assisted suicide, but none has come close to passing; her most recent effort ended in massive defeat in a House of Commons free vote in April 2010. As a matter of political debate, the assisted suicide issue has largely sunk from sight.
If little hope of parliamentary action exists, the only apparent alternative is to work through the courts, the obvious strategy being to launch a Charter challenge to the law, as Sue Rodriguez did. The fact that it failed in 1993 does not necessarily mean it would fail now. The margin of defeat was very narrow, and the minority included Beverley McLachlin, now the chief justice and the only member of the 1993 court still on the job. Were the question to be reconsidered, she might now be able to persuade enough of her colleagues to join her in striking down the law. However, courts are generally loath to reverse themselves, especially over a relatively short time, when facing an identical question. The option of a successful constitutional challenge therefore remains a long shot.
However, that is not the only available legal route. Morgentaler is chiefly remembered today for his ultimate triumph over the abortion law in the Supreme Court; we tend to forget that by the time of that decision the law was already well on its way to obsolescence.