Today marks 34 years since the infamous Morgentaler decision, in which the Supreme Court of Canada struck down Canada’s abortion law and unintentionally set off a lengthy era of zero abortion restrictions in Canada. As New Brunswick heads to court to rightly argue that abortion is not a Charter right, it is worth remembering what exactly that court decision did determine, and what motivated the man behind the case.
The Morgentaler case is that of Doctor Henry Morgentaler, a controversial Order of Canada recipient for his industrious efforts (to the point of jail time) to provide abortions whether they were legal or not. In 1988, the Supreme Court ruled that the specific abortion regime in Canada’s Criminal Code at that time was unconstitutional under section 7 of the Charter, as it unjustifiably violated the right to life, liberty, and the security of the person both of women seeking abortions and of the physicians performing them. All laws restricting abortion were then removed from the Criminal Code, but that was not meant as a final word on the topic. The judges in Morgentaler explicitly stated that there was a national interest in protecting the life of the fetus at some point, and looked to Parliament to work out the details of a new law.
Since then, Parliament has failed to pass a new law, leaving Canada as the only democracy in the world with no legal protection from abortion for pre-born children. Where every other country has managed to reach agreement – most prohibiting abortion after the first trimester – Canada continues to allow abortion at any stage of pregnancy, for any reason.
Morgentaler would be proud. But would he also recognize that his key goal with abortion access has not been achieved?
Morgentaler was a Holocaust survivor, and that horrific experience informed much of his passion for abortion. In 2013, the year of Morgentaler’s death, journalist Gary Evans shared some of Morgentaler’s words that reveal his motivation for promoting abortion. “If all children were desired, received with love and affection and care,” Morgentaler said, “they would become loving and caring individuals. If we had that for a number of generations, we would have a different kind of species, a different humankind.”
Morgentaler lived through the horror of the Holocaust and lost most of his family members to the death camps. He saw a connection between unwanted or abused children and violent adults who lacked compassion. He believed that future events like the Holocaust could be prevented if compassion increased and that abortion – the killing of unwanted children – was a way to increase compassion and love in the world.
I wonder what Morgentaler would say now, seeing the results of more than three decades of completely legal abortion. Are people more compassionate? Are crime rates down and loving families up? Has genocide, racism, prejudice or bigotry ended?
Morgentaler made an accurate assessment of the problem: people can treat other people horribly, and this is not the way the world should be. But he responded with a tragically misguided solution.
It would have been consistent, and just as ineffective, for Morgentaler to promote capital punishment for all crimes and live his life executing vigilante justice. Just as Batman never runs out of crimes to solve, this “different kind of species,” essentially good humankind, would never have emerged. Human nature tends toward selfishness and judgment, not just compassion and love for others. No amount of abortion will change that, just as no amount of capital punishment will end all crime.
A parent’s ability (and willingness) to kill their unwanted pre-born child does not lead to more compassion. It leads to a devaluing of born children who are then seen as a burden, a cumbersome and expensive responsibility. It may lead to fewer children, but there is no guarantee that those children will grow up compassionate and loving in a society that tells them they do not have to be.
Henry Morgentaler was right in his indictment of the hate and hurt people can inflict on one another, and his vision for a more compassionate future was a noble one. But when it came to presenting a solution, sadly he got it all wrong.
Anna Nienhuis is a policy analyst with We Need a Law, a national non-profit campaign that advocates for legal protection for pre-born children.
