The Morgentaler Effect
What the champion of reproductive rights has to teach the right-to-die movement
Until he 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.
Assisted suicide 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.
After being charged in 1970, Morgentaler was impatient for his day in court; his lawyer, Claude-Armand Sheppard, thought it prudent to delay as long as possible, so that public opinion might be mobilized in his favour. Indeed, over the next three years, while Morgentaler continued performing abortions at his clinic, including one that was televised on CTV, women across the country formed defence committees and organized rallies on his behalf. Sheppard knew this would only reinforce judges’ impression of his client as a troublemaker, and when the time came to opt for trial by judge or by jury he advised the latter. That was exactly what Morgentaler wanted to hear. “No jury will ever convict me,” he insisted.
On September 24, 1973, in a Montreal courtroom packed with pro-choice advocates, Morgentaler sat quietly beside Sheppard as he presented his defence of necessity: as a doctor, Morgentaler had a duty to safeguard the life and health of the women who came to him for abortions, which outweighed his duty to obey the law. Although the prosecution objected vigorously, the judge ruled that the defence was admissible. Sheppard leaned toward his client and whispered, “You’ve just won your case.” A month later, the jury returned a verdict of acquittal.
Between 1973 and 1975, Morgentaler was tried a total of three times in Montreal for defying the abortion law; each time, he raised the defence of necessity, and each time he was acquitted. Furthermore, in each succeeding trial the jury took less time to deliberate, until, on the last occasion, it arrived at a decision in just one hour. By that time, it had become clear that no jury in Quebec would ever convict Morgentaler; prosecutors simply could not convince jurors that what he was doing was wrong, whatever the law might be. What had occurred in all three trials was a fascinating exercise in what lawyers call jury nullification—the refusal of jurors to apply a law when they believe the law to be unjust and the defendant therefore justified in breaking it. This power to nullify laws is not beloved by judges and prosecutors, to the extent that in 1974 the Quebec Court of Appeal not only overturned Morgentaler’s first acquittal, but substituted a conviction. He served ten months in prison before the same court upheld his second jury acquittal. (Around the same time, the federal justice minister introduced an amendment to the Criminal Code, unofficially named after Morgentaler, that stripped appeal courts of the authority to substitute convictions for jury acquittals.)
Shortly after the Parti Québécois swept to power in 1976, the incoming provincial justice minister announced that there would be no further trials. Henry Morgentaler was now at liberty to run his clinic without fear of legal reprisal. That was fine as far as it went, but he continued to be troubled by the plight of women in the rest of the country. By 1983, he had decided that he must take his fight against the abortion law nationwide, and he opened clinics in Winnipeg and Toronto. Predictably, they were soon raided by local police, and he found himself back in a courtroom, this time in the country’s biggest city. Both his defence of necessity and the jury acquittal were copies of the three Quebec trials. However, this trial did exhibit one important novel feature. The Charter of Rights and Freedoms, championed by his old humanist colleague Pierre Trudeau, had just come into effect, providing the opportunity for a constitutional challenge of the abortion law.
Its centrepiece was the argument that the law denied women the right to life, liberty, and security of the person, the same section of the Charter to which Sue Rodriguez would appeal five years later. In this case, the court accepted the argument by a 5–2 margin. When the decision came down in January 1988, it caused a sensation; the law against which Morgentaler had fought for more than twenty years was now gone. “Imagine,” he later wrote in his memoirs, “single-handedly almost, I abolished a restrictive, cruel, barbarous law which caused so much suffering to women across Canada.”
One can understand his jubilation at such a decisive, sweeping victory, but the fact is that even if the abortion law had been upheld it would still have been doomed. After it was already effectively negated in Quebec, acquittals in Toronto and Winnipeg would have rendered it unenforceable in two more provinces. Eventually, the other provincial justice ministers would have had to concede that there was no point in proceeding with prosecutions of doctors who were providing clinic abortions. These victories would have been piecemeal, and the fight would have taken much longer, but in the end the abortion law would have become a dead letter.
Today many Canadian physicians face the same questions of conscience that troubled Henry Morgentaler, questions about how best to protect patients’ interests and respect their choices. In anonymous surveys, a small but persistent minority of Canadian doctors reports having received a request from a patient for assistance with suicide; a smaller minority reports having agreed to such a request. In other words, assisted suicide is already being practised covertly in Canada. The best-known example is that of Sue Rodriguez. While the 1993 Supreme Court decision was a personal disappointment, it did not prevent her from carrying out her wishes the following year, with the assistance of a physician who remained anonymous. No charges were ever laid in the case, either against the doctor or against Svend Robinson, the Member of Parliament who supported her and was with her at her death.
It’s not that prosecutors couldn’t obtain the necessary evidence. Rather, in light of the widespread public sympathy for Rodriguez, they knew a trial would almost certainly result in an acquittal, setting the Morgentaler effect in motion. Prosecutors simply do not want cases of assisted suicide going to trial. In Canada, virtually no physicians have been prosecuted for this offence; even when they have been reported to the authorities, convictions are usually sought on lesser charges, such as administering a noxious substance, which results in nothing more than probation or a suspended sentence. As the Morgentaler story suggests, and as the Rodriguez case illustrates, willingness to break the law to respond to patients’ needs is not enough to change the law. The doctor has to go public, turning non-compliance into outright defiance.
That additional step was taken by Timothy Quill, a family physician practising in the state of New York in 1991, when he published an article in the New England Journal of Medicine, in which he recounted his involvement with a patient he identified only as Diane. She’d been diagnosed with acute leukemia, but had refused chemotherapy on the grounds that its chances of success were not sufficient for her to endure the severe side effects. Facing certain, painful death within a few weeks or, at most, months, she asked Quill for a prescription for barbiturates, making it quite clear that she intended to use the medication to end her life. He wrote the prescription and instructed her about the dosage needed to cause death. A few months later, overwhelmed by bone pain, weakness, fatigue, and fevers, she said her final goodbyes to her husband and son and asked them to leave her alone for an hour. When they returned, she was lying on the couch, covered with her favourite shawl. Quill, who was involved in the right-to-die movement, decided to share her story. A reporter picked it up, located Diane’s body, and established the cause of death, forcing the district attorney to take legal action. As per US protocol, the case was first vetted by a grand jury, which refused to indict Quill.
If his case had gone straight to a trial jury, as it would have in Canada, Quill would have been acquitted, which would have attracted much more media attention and made a much higher impact statement about the viability of prosecuting assisted suicide (as it was, the case remained obscure). In projecting further, the Netherlands provides a useful case study. In the early 1970s, while Morgentaler was dealing with charges for providing abortions, a number of Dutch doctors reported performing euthanasia in response to patient requests. Since this was considered a form of homicide at the time, prosecutors couldn’t get away with reducing the charges. When most of the trials ended in acquittals—a tremendous waste of resources—prosecutors and other stakeholders were compelled to draft guidelines outlining the conditions under which doctors could practise euthanasia or assisted suicide without fear of prosecution: mainly, when a patient with an incurable medical condition that caused intolerable suffering made an explicit request for help in ending his or her life. The current Dutch law, which formally enshrines those conditions, was not enacted until 2002, but for nearly thirty years before that both practices had been effectively legalized by the courts.
The Dutch example shows the course Henry Morgentaler’s campaign against the abortion law might have taken had it not been rendered unnecessary by the 1988 Supreme Court decision. It also illustrates how a successful opposition of the law against assisted suicide might be mounted. The scenario for success would go something like this: A patient with a terminal illness, the desire to die at a time of his or her own choosing, and the determination to take a public stand against the law (someone like Sue Rodriguez) would pair up with a doctor willing to break the law to assist her (someone like the anonymous doctor in that case). The crucial difference here would be that the doctor would step forward and publicly declare both his role in her suicide and his opposition to the law. By doing so, he would be positioning his action as one of civil disobedience and inviting, indeed insisting on, arrest. With enough publicity, the police couldn’t ignore the case, and prosecutors couldn’t fall back on a lesser charge than assisted suicide.
The doctor would then elect trial before a jury and rely on the defence of necessity, arguing that his actions were justified by his duty to relieve his patient’s suffering. Although the trial judge would almost certainly exclude this defence, it would nonetheless speak directly to the hearts and minds of the jurors, who, if past experience is any guide, would then find it impossible to convict the doctor. An acquittal would send the message that prosecutions would be equally unlikely to succeed in future cases where physicians were seen to be responding with compassion to their patients’ needs and wishes. Prosecutors would thereby be forced to develop guidelines dictating when prosecution for assisted suicide would be in the public interest. Within those guidelines, it would be effectively legal, even if the law itself remained unchanged.
This plan, adapted from Henry Morgentaler’s campaign against the abortion law, is not without its pitfalls. The main challenge, of course, is the requirement for a doctor prepared to assume the immense personal and professional cost. Morgentaler endured police raids, interrogations, criminal charges against himself and his clinic staff, four trials, endless appeals, incarceration, death threats, the bombing of one of his clinics, and the constant risk of losing his licence. Timothy Quill and the Dutch doctors were willing to face similar risks (though they managed to avoid the worst of them). Why?
At eighty-seven years old, Morgentaler is still advocating for abortion, still risking his safety, still passionate about alleviating suffering and honouring autonomy. “I think people need to have the right to choose to terminate their lives, if they are terminally ill,” he says, via email (because his hearing is “somewhat compromised,” explains his wife, Arlene Leibovitch). And he makes it clear that the only way to counteract the law against assisted suicide is through civil disobedience. The decision to take that step may be painful, but the formula is simple: “Conscience requires breaking the law, if need be,” he maintains. “My advice to any individual would be to be true to their own convictions.”
This appeared in the January/February 2011 issue.