Morgentaler at 20: An Activist Reflects

[Editor’s note: On January 28, 1988, the Supreme Court handed down its landmark judgment in R v Morgentaler. To mark this month’s twentieth anniversary, The Court.ca has commissioned contributions from some of those involved in the case. Today, journalist and former National Action Committee on the Status of Women president Judy Rebick describes how the ruling was received by the Canadian women’s movement.]

I’ll never forget January 28, 1988, the day the Supreme Court of Canada (“SCC”) struck down the abortion law. It was freezing cold. A group of pro-choice activists were standing in front of the Morgentaler clinic along with a mob of media waiting to hear the news from our comrades in Ottawa. They were supposed to call the clinic as soon as the decision came down and the clinic staff would let us know what happened. We didn’t have cell phones in those days.

A reporter called me aside and said she had just heard on her radio that the SCC had struck down the law on the grounds that it interfered with women’s right to security of the person. I didn’t believe her. We thought the justices might very well strike down the law, but we figured it would be on the technical grounds of lack of equal access. A decision based on the Charter guarantee of security of the person was too much to hope for. After all, the major argument of the pro-choice movement was that a woman had the right to control her own body.

Indeed, the majority decision (see [1988] 1 SCR 30) written by Chief Justice Brian Dickson stated:

[S]tate interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person… Section 251 [the old abortion law] clearly interferes with a woman’s physical and bodily integrity. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.

It was a profound and incredibly long-lasting victory that for us was of equal significance to the winning of the right to vote a couple of generations before. In essence, the highest court of the land said that the abortion law violated a woman’s right to control her own body free from state interference.

Voting with the majority, Justice Bertha Wilson went much further. It was really the first time we saw a feminist interpretation of law at the highest level.

[T]he present legislative scheme for the obtaining of an abortion clearly subjects pregnant women to considerable emotional stress as well as to unnecessary physical risk. I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well.

Wilson added that it was likely impossible for a man even to understand the dilemma of a pregnant woman contemplating an abortion, “not just because it is outside the realm of his personal experience – but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche, which are at the heart of the dilemma.”

Morgentaler was acquitted by a jury in Toronto in 1984, one year before the Equality Rights provision of the Charter was proclaimed, so his lawyer Morris Manning had to rely on other provisions of the Charter for his arguments. Despite the battle for equality rights waged by the women’s movement in English Canada, there is no doubt that Morgentaler was the most important women’s equality decision ever decided by the Supreme Court.

After eight years of battles in the courts, in the streets, in the media and throughout society, we had won our argument at the highest court in the land and in the court of public opinion. The next day riding the street car, everyone was talking about the victory. Dr. Morgentaler had become a hero to most Canadians, the little guy fighting against the system. He had gone to jail for his beliefs in the 1970’s in Quebec, but still was willing to risk incarceration again in Ontario. He stood up to death threats, anti-semitism, ridicule and every other way that opponents try to silence fighters for justice, but he never wavered.

But without the work of the women’s movement, it is doubtful the victory would have been as deep-seated. First, the abortion battle is probably the best example of the relationship between social struggles and legal decisions. For almost ten years, the abortion debate had been on the front burner in Ontario and then across the country. Debates, marches, direct action, clinics opening and in some cases being shut down, clashes with the anti’s, resolutions in the unions, on campuses and in community organizations, everyone had to take a stand, including the Justices.

Chief Justice Dickson told me many years later that the Morgentaler decision was his proudest moment on the Supreme Court.

If we compare the Morgentaler decision to the U.S. Supreme Court decision in Roe v Wade, 410 US 113, we can see a number of key differences. Of course Roe v Wade only legalized abortion in the first trimester, but after it was passed, the women’s movement figured they had won an enormous victory and turned to other issues. In the meantime, the anti-choice movement began organizing and they form the basis of the Christian Right that has helped elect reactionary presidents ever since. The women’s movement in the U.S. had to remobilize on the abortion issue and it has been the centre of their concerns ever since.

In Canada, the battle continued after the Supreme Court decision. In 1989, two women, Barbara Dodd in Ontario and Chantal Daigle in Quebec, took the 1988 decision even further. In both cases, their boyfriends tried to get an injunction to stop the woman from having an abortion. In Tremblay v Daigle, [1989] 2 SCR 530, the Supreme Court ruled that the foetus has no legal status in Canadian law, under either the common law or Quebec Civil law.

In the same period, Brian Mulroney’s government tried to recriminalize abortion with a law they thought would stand a Charter test. It was defeated by a single vote in the Senate. No government since has dared to make another attempt.