An Interview with Dr. Henry Morgentaler

[Editor’s note: On January 28, 1988, the Supreme Court handed down its landmark decision in R v Morgentaler, [1988] 1 SCR 30. To mark this month’s twentieth anniversary, TheCourt.ca caught up with one of the accused in the case, Dr. Henry Morgentaler. The following is drawn from an email exchange with Dr. Morgentaler.]

TheCourt.ca: What do you remember most about January 28, 1988?
Henry Morgentaler: Well, I remember attending the Supreme Court in Ottawa, and my astonishment that the Supreme Court actually invalidated the abortion law. I was ecstatic about the ruling.

TheCourt.ca: What surprised you about it?
HM: I was surprised that it was so final and definitive, and I accept it as a vindication for my struggle and still view it now as a major achievement. In fact, the Supreme Court decision was everything I longed for and aspired to. It opened a way for me and for other physicians to establish clinics across the country and to provide the services that women needed in an atmosphere of compassion and with competence.

TheCourt.ca: As your case made its way through the courts, your name became synonymous with the abortion debate. What was that experience like?
HM: I must say I enjoyed the experience of representing the pro-choice side and I was happy I was able to defend it well. I am very proud of that legacy. I feel that I defended a great cause, and I did it with conviction, dedication, and respect for myself and my opponents.

TheCourt.ca: What was the scariest part?
HM: Well, there is no doubt that the stress involved in fighting for abortion rights and the actual physical attacks and threats took their toll. I personally felt that I was acting on my ideals, I was very gratified about the results I was able to achieve and it largely compensated for the stress and intimidation I had to endure. Unfortunately, my family was subjected to threats, and danger which affected me greatly.

TheCourt.ca: Given the chance, would you put yourself in that position again?
HM: Yes! This struggle for abortion rights gave meaning to my life, and it corresponded to the ideals that I inherited from my parents, dedication to human rights and an ability and willingness to make this world a better place to live.

TheCourt.ca: Twenty years later, how secure is your victory?
HM: The victory is pretty secure, in my mind, because in twenty years we have been able to help many women. Canadians have had a good experience with the ability of women in Canada to access good abortion services, and the people are aware of the enormous benefits for society that this has engendered; women no longer die as a result of “botched illegal abortions,” the mortality of women in childbirth has improved, and the recent polls show that 80% of the population in Canada are pro-choice.

TheCourt.ca: Since R. v. Morgentaler, successive Canadian governments have been reluctant to place new criminal restrictions on abortion. By contrast, Roe v. Wade doesn’t seem to have had a similar impact on U.S. state governments. How do you explain this difference?
HM: It seems that Canadian attitudes towards abortion are more enlightened than those prevalent in the United States, we don’t seem to have as many fundamentalists in Canada as there are in the United States, and the Canadian experience with abortion services over the last twenty years have convinced Canadians of the importance of providing this service

TheCourt.ca: You’re currently involved in a New Brunswick case that concerns the extent to which provincial governments actually have a duty to provide access to abortion. Is this the new frontier in abortion litigation in Canada?
HM: The New Brunswick case is unique unto itself. The major parties in New Brunswick, both the Conservatives and the Liberals, are anti-choice, which makes the situation difficult. I wouldn’t call it a new frontier; I would call it “old school” stubbornness, and the influence of religion on the government.

TheCourt.ca: Section 15 of the Charter (the equality guarantee) wasn’t a factor in the Supreme Court’s 1988 decision, since your arrest came in 1984, one year before section 15 came into force. Now that section 15 is available to courts considering abortion litigation, what impact do you think it will have?
HM: I think it will have a positive impact, but I think it won’t be necessary to invoke section 15 under the Charter because Abortion rights in Canada now seem to be well established, and no serious challenge to it could succeed according to my estimate.