Anne Collins is a Governor General’s Award winner and author of, among other titles, The Big Evasion: Abortion, The Issue That Won’t Go Away. The following essay on Henry Morgentaler, who died Wednesday at the age of 90, was originally published in Maclean’s November 19, 1984, shortly before the book’s publication.
Sometimes, while considering the crusade of Henry Morgentaler in the course of the past year, it was easy to believe the doctor’s foolishness knew no bounds. He might even have qualified as the most naïve man in Canada. Of his own free will, in order to meet a growing crisis that almost everyone else in his profession seemed content to ignore, he abandoned safe harbour in Quebec—where he ran an abortion clinic free from legal prosecution, where he was regarded as a respected professional—in order to bring abortion services to women badly served by all other governments of Canada. Morgentaler announced intentions openly, as if it were the best possible thing in the world to do, and even offered his two clinics, in Toronto and Winnipeg, as pilot projects—good learning experiences—for provincial governments which he said insisted on subjecting women to the inequities and anachronisms of Canada’s abortion law.
Morgentaler did not choose a politic time. He ignored the fact that governments wanted to grapple with economic issues (the deficit, unemployment, hard times) and not with abortion, which generates equal crisis of private conscience and public controversy – a social, legal, moral issue that wins no one any votes. He also ignored the right-to-life movement in Canada, not anymore the relative handful of activists who made his life miserable during his first three trials on abortion charges in Quebec but an educational movement 230-groups strong, with two political lobbying arms, Campaign Life and Coalition for life. All of them were outraged because of the threat that the spectre of “Morgentaler Clinics” posed to their cause. He ignored the conservatism in the air, both the moderate Canadian brand which brought Brian Mulroney’s party to power in an overwhelming landslide last September and the Reaganite brand which bore an implacable anti-abortionist to the presidency of the United States on wings of moral fervor just two days before a jury of six men and six women announced their verdict on Henry Morgentaler. Morgentaler was right in all his willful optimism: that jury found him not guilty.
Not guilty – the meaning of the phrase has truly to be considered. Of the three doctors charged—Robert Scott, Leslie Smoling and Morgentaler—only Morgentaler really believed the jury would acquit. At the press conference after the verdict, Morgentaler’s lawyer, Morris Manning, said what most observers thought throughout the trial: “People said a jury acquittal could never happen outside Quebec; an Ontario jury would never acquit.” Despite seven hours of instruction from a judge who told them that acts of civil disobedience were not excused by the basic defence Manning used—the defence of necessity—and that people acting consciously to test the law should not escape the consequences of breaking it, the jurors took just six hours to wade through the legal thickets and find the three doctors innocent. Manning had asked the jury to send a message to Parliament – and they had. They told the justice system and the politicians that they would not convict doctors who were acting in good faith to help others; they said in two words that the abortion law is unenforceable. But they sent another message too. Twelve people chosen out of a random lot of 132 citizens of the city of Toronto had revealed that the conservatism in the Canadian air is economic and not social. Canadians voted for economic security an a tight hand on government purse strings and not for the American add-ons to the package – a right-wing image of God and family which relegates women to the kingdom of the home.
It was a stunning vindication for Morgentaler, his colleagues and the pro-choice movement in Canada, which has been lobbying futilely for change since the early 1970s. But it was a defeat causing bleak despair in the hearts of such right-to-lifers as Laura McArthur, president of the Right to Life Association of Toronto and Area, who had sat vigilantly in Toronto courtrooms for much of the past year, watching first the progress of Morgentaler’s constitutional challenge of the law – which he lost – and then the criminal trial. The message the verdict sent to activists, including McArthur and Winnipeg anti-abortionist Joe Borowski, who lost the first round of his challenge of the law on behalf of Canadian fetuses in October, 1983, was that they had lost a grassroots of Canadian decency; here was the grassroots telling the that was not the case. Their reaction was to attack the jury and the jury selection process, in which Manning had hired two American jury consultants to help him pick the 12 most crucial jurors of his career. Borowski charged that Manning had done everything but administer saliva tests to ensure a “pro-abortion jury.” McArthur attacked them on the grounds that there were too grassroots. Manning tried for “blue collars, union workers,” she charged, “who are dictated to by their unions. He wanted the transient, young, roving type of people who, in his mind, would be for abortion.” Not liking the message, they could not listen to a jury scrutinized for bias by both the defence members, while generally young, belonged to all classes of the vaunted grassroots, from an electoral engineer to a pregnant sausage-casting inspector.
The truth is too painful in its implications for the pro-life movement in Canada. In the case of Morgentaler’s earlier acquittals, they could excuse the unanimous voice of the juried on the grounds that “hard cases make bad law.” In Quebec, Morgentaler was on trial for procuring illegal abortions on two very specific women. The first was a young foreign student from Sierra Leone, unsure of her rights, poor, unmarried, alone. The second was a teenaged Italian girl, pregnant on the wrong side of a white wedding. The jury did not convict because after hearing the testimony of those two women, they could see that the doctor had operated out of compassion; how could they send anyone to jail for that?
In Toronto, however, the story was different. Morgentaler, Scott and Smoling faced conspiracy charges; the Crown brought no women to the stand to prove its case, no living testimony to the specific dilemmas that caused the women who came to the Toronto clinic to choose abortion. In the defence, all Manning could offer was abstract evidence of the system that women faced in trying to get an abortion in Canada. The situation he presented to the 12 jurors was—even to the extent of using the same witnesses—the situation he had presented to Associate Chief justice William Parker when he had unsuccessfully tried to get the law overturned. The jury listened first to the Crown’s case, which established beyond all doubt what the doctors had already publicly admitted to: they had been performing abortions in Toronto outside the law.
And then the jury listened to the situation—with its abstractions of unequal access, compilations rates, delays, committee vagaries, unspecified numbers of women forced to go out of the province or even out of the country to get what hospitals were reluctant to provide. And they agreed with Manning’s clients that Section 251 of the Criminal Code should not force women who needed abortions thought all those legal hoops.
If right-to-lifers can bear to listen to the revealed nature of the Toronto jury’s message, it would tell them that they have lost—that 12 ordinary people recognized that society has changed so much that society has changed so much that a 15-year-old reform of the law is obsolete, unnecessarily dangerous to women, unenforceable. Women work, and need to work , and want to work—and society has not yet figured out how to make childbearing and work fit together in a way that does not require women to control their fertility. With inadequate and sometimes unsafe means of contraception combined with a strong belief that women should be able to become pregnant when it is best for them and their families—abortion has become the logical backup, an extension of contraception and part of the recent revolution in the way people think about reproduction. Society’s clock cannot be turned back to a lost time where women occupied the public world, and children fit into a neatly-cared-for place between them. By holding tightly to an absolute belief that all abortions in all circumstances are bad, and by insisting that an absolute legal ban on all abortions is the only moral option a decent society can condone, right-to-lifers doom themselves to ineffective railing against something they truly cannot alter.
The jury has said that the morality of abortion is a matter of private conscience and responsibility, and not the territory of laws and therapeutic abortion committees. If it is juries who are asked to judge Henry Morgentaler, the odds are that juries will continue to acquit him.
At the root of the right-to-life movement is a legitimate fear and horror of the way in which society treats women and children, the elderly, the disabled, the mentally retarded—all those who have no obvious value in the market place, and whose lot in life seems severely threatened by the exigencies of the late-20th-century world. The movement says that North American society is antichild and terrifyingly materialistic—and the movement is right. But that message is obscured, even to the movement itself, by its single minded insistence that people like Henry Morgentaler are morally in the wrong.
If the right-to-life movement could take the jury decision exonerating Morgentaler as a sign, instead of a horrible defeat requiring desperate measures, it might be able to change the thrust of its action to attacking the disease and not the symptoms. The example of AbyAnn Lynch springs to mind, a Catholic professor of bioethics at the University of Toronto who was one of the consultants to the Canadian Conference of Catholic Bishops’ most recent statement of abortion, Ethical Reflections on Respect for Life. She is opposed to abortion and the kind of civil disobedience that Morgentaler committed, but she says that in a pluralistic society the law is not the place to enforce a particular morality. Her mode of action? She suspended her own teaching career to take a certificate as a child-care worker at the University of Toronto so that she could more credibly lobby for day care in the workplace. She has daughters who want to have careers and children, and she wants to see a society where that desire does not pose the kind of strain that sometimes leads to abortion. Lynch, and others like her could make common ground with women now workings in the pro-choice movement. The result could be not just freedom to choose not to have a child, but freedom to choose to bear one.