Dr. Henry Morgentaler stands in front of banner which reads, Canadian Abortion Rights Action League in 1988.The Canadian Press
Henry Morgentaler, the family doctor who led the abortion movement in Canada, died of a heart attack at his Toronto home early Wednesday. He was 90.
Dr. Morgentaler, who was the focus of both reverence and hatred, was one of the key players in the 1988 Supreme Court of Canada ruling that declared the law prohibiting abortion unconstitutional. He is survived by his wife, Arlene, four children, several grandchildren and his extended family. Funeral arrangements are private.
Dr. Morgentaler had a complex relationship with women all his life. As a child, he felt his mother didn't love him as much as his younger brother; as a doctor, he performed thousands of safe, but illegal, abortions on desperate women with unwanted pregnancies; as a social and political activist, he worked to repeal Canada's draconian abortion law in order to give women control over their reproductive lives; as a medical administrator, he opened eight clinics across the country to try to give women equality of access to abortions; and, as a man, he was a consummate philanderer who married three times and conducted many extramarital affairs. "He was a man who loved women and couldn't be monogamous," Catherine Dunphy wrote in her 1998 book, Morgentaler: A Difficult Hero.
"My whole life," he told The Globe and Mail in 2003, "I have been looking for the mother-love that I missed. That explains my many relationships with women. Deep down, with me, I was afraid they would leave me, or stop loving me. It was a psychological strategy to make sure there would always be a woman who loves me." He died with the woman who loved him, his third wife, Arlene Leibovitz, by his side, as she had been for nearly 30 years.
A Holocaust survivor, whose defiance of authority was steeped in bitter experience, a humanist, an atheist and a lover of the spotlight, Dr. Morgentaler was revered by pro-abortion advocates and reviled by those who opposed them. In the last half-century, he was lauded, arrested, and jailed. His Toronto clinic was destroyed by arsonists, he was physically threatened and was awarded an honorary degree and the Order of Canada. Today, it is hard to say which changed more – him or the country that accepted him as a 26-year-old immigrant in 1950.
His mother died in Auschwitz and her murder was directly linked to his desire to help other women live the way they wished. "I knew I could not save my mother," he told The Globe in 2003. "But I could save other mothers. It was an unconscious thought. It became almost like a command. If I help women to have babies at a time when they can give love and affection, they will not grow up to be rapists or murders. They will not build concentration camps."
Jan. 28, 1988, the day the Supreme Court declared Canada's long-standing abortion law unconstitutional, was the greatest day in Dr. Morgentaler's life. For the next 20 years, on the anniversary of the ruling, he held a dinner for key supporters in the struggle. "It was a vindication of everything I believed in," he said. "For the first time, it gave women the status of full human beings able to make decisions about their own lives."
Perhaps the second greatest day in his life was Oct. 10, 2008. That was the day when Governor-General Michaëlle Jean pinned the Order of Canada on his chest in a ceremony at the Citadel in Quebec City, while protesters marched outside. His inclusion as a member, the lowest of three ranks, in our highest civilian order, had been hotly debated for years: One side denounced him as a murderer; the other praised him as a hero. Several members of the Order, including Roman Catholic Cardinal Jean-Claude Turcotte, returned their medals in protest against Dr. Morgentaler's appointment.
"I am honoured to receive the Order of Canada today," Dr. Morgentaler said in a brief statement after the ceremony. "Canada is one of the few places in the world where freedom of speech and choice prevail in a truly democratic fashion. I'm proud to have been given this opportunity, coming from a war-torn Europe, to realize my potential and my dream, to create a better and more humane society."
Henry Morgentaler was born on March 19, 1923, in Lodz, about 120 kilometres southwest of Warsaw, one of three children of Josef, a weaver and labour activist who was a leader in the Jewish Socialist Labour Bund, and Golda, a seamstress. Before the Second World War, Lodz was the textile capital of Eastern Europe and the second largest city in Poland. Although predominately Catholic, the city did have a sizable Jewish community of more than 220,000 people, or a little more than 30 per cent of the population. As a boy, Henry was taunted by Catholic boys who accused him of killing Jesus. A good student, his only rival for top marks was Chava Rosenfarb, the tall, dreamy daughter of Bundist colleagues of his parents. They met when they were nine, started dating when they were 14 and shared dreams of an intellectual future together.
All thoughts of romance and higher education were dashed when the Germans occupied Lodz on Sept. 8, 1939, and quickly imposed repressive measures against Jews. Henry was 16. His father was arrested and taken to a detention camp, where he was tortured and eventually murdered. By March, 1940, some 70,000 Jews had fled or been expelled. Henry's older sister, Ghitel, who was already living in Warsaw, was sent to Treblinka concentration camp where she perished. The rest of the family lived in the Lodz Ghetto, making machinery, boots, munitions and other essential goods for the Nazi war machine until August, 1944, when Henry, his younger brother Mike, and his mother were transported in cattle cars to Auschwitz. He and his brother, being young and relatively strong, were sent to work details at Dachau in Bavaria. They never saw their mother again.
Henry was 22, weighed 70 pounds and had lost all of his teeth by the time the Allies liberated the camps in 1945. Although he was never robust, those paltry pounds must have clung to his slender 5 ft. 5" frame. Even though he was bowed down with survivor's guilt – why was he alive when his parents and his sister had perished? – he was determined to move ahead with his life. He and his brother Mike reunited with Chava Rosenfarb (who had survived Auschwitz along with her mother and her sister) at a refugee camp in the former Bergen-Belsen Camp.
Along with a dozen other Jewish students Henry was accepted on scholarship into medical school at Marburg-Lahn University in the Hesse region of Germany – if nothing else, his presence as a student was a potent reminder to the townspeople of the failure of the Final Solution. At the end of his first year, he left to finish his studies in Brussels, where Ms. Rosenfarb had relocated and was teaching Yiddish and writing poetry and plays.
They were married early in 1950 and emigrated to Montreal that February (with help from a cousin who had settled in Canada) bringing three cartons of psychology books and U.S. $20. Their daughter Goldie (named after the mother he thought didn't love him) was born Aug. 8, a month before Dr. Morgentaler was admitted as a medical student at the University of Montreal. He graduated in 1953, but, even though he passed the exams for his medical licence, he couldn't work as a doctor because in those days you needed to be a Canadian citizen to practise medicine in Quebec.
He longed for recognition and dreamed of being a second Louis Pasteur, but after working at low-level research jobs he grew tired of looking at the world under his microscope and needed more human contact. When he was finally granted citizenship in August, 1955, he opened a practice as a general practitioner in the east end of Montreal, making house calls, delivering babies and doing hypnosis on the side.
He should have been content, especially after his second child Abraham (Bamie) was born in the spring of 1956, but the traumas of the past have a tendency to overpower survivors just when they think they are safe. Later, Dr. Morgentaler told a journalist about this period that he had "the wife, the mistress, the son and daughter and house" that he thought would make him happy. Instead, his sleep was tortured by nightmares. In 1960, he embarked on a four year course of therapy and later tried unsuccessfully to become a Freudian psychoanalyst.
In 1963 he discovered the Humanist Fellowship of Montreal, an organization that promotes improving society through reason, scientific inquiry and compassion, and found the philosophical and social engagement that he had been seeking. He began speaking about the group's work on radio and television broadcasts and in community panels and advocating for a religiously neutral school system in Quebec and a reform of the abortion law.
By now a dynamic and equally fluent public speaker in both French and English, he was an obvious choice to become spokesman for the Humanist Society before a House of Commons committee on Oct. 19, 1967, arguing that pregnant women had the right to terminate unplanned pregnancies in safe abortion procedures. That appearance ultimately changed his life, the lives of thousands of women and Canadian jurisprudence.
His statements about women's right to abortions made headlines. Suddenly, desperate women began showing up at his medical office begging him to help them get rid of unwanted fetuses. He kept saying he couldn't help them until he realized that he was "caught in my own rhetoric" feeling "like a coward and a hypocrite."
In 1968, he secretly performed an abortion on the daughter of a close friend and the following year, he gave up his family practice and began a full-time abortion practice in a well-staffed, well-equipped clinic, charging between $200 and $300 for each procedure. He pioneered the vacuum suction method in Canada.
An abortion without the approval of a hospital committee was illegal in Canada, so inevitably he faced charges, first laid in May of 1970. But because of a series of legal entanglements, the case did not go before a jury until November of 1973. By that time, Dr. Morgentaler had offered himself as an Independent candidate in the 1972 federal election in the Montreal riding of Saint-Denis, seeking another platform for his pro-choice agenda. He received so few votes that he lost his deposit.
Buoyed by the United States Supreme Court ruling in January of 1973 in Roe v. Wade that women had a constitutional right to abortion, he launched a cross-country speaking tour to campaign for a change in the abortion laws. At the national conference of the Canadian Women's Coalition to Repeal the Abortion Law (CARAL) he admitted before 500 cheering supporters in Toronto that he had performed more than 5,000 abortions, all of them safe, all of them illegal. He followed this up with a letter to prime minister Pierre Trudeau in April, explaining how many abortions he had done, how he had done them and how he wasn't going to stop.
Risking prison, especially for somebody who had survived a concentration camp, must have been traumatic, but in an exclusive interview with The Globe in December, 2008, he said that his ability to "fight for the rights of women," even though it was against the law, was like "a statement on my part that I know what is the right thing to do and I will do my part in helping a minority of people who were discriminated against and made to risk their lives at the hands of incompetent people and charlatans." To him, performing abortions "was a field of endeavour where I could do something positive with my life, even though I exposed myself to danger." In that respect, defying the law made him feel good and worthwhile and satisfied his Humanist beliefs.
On Mother's Day, May 13, the CTV program W5 showed a film of an abortion being performed in Dr. Morgentaler's Montreal clinic, placing his defiance of the law before the entire nation. The police raided his clinic on Aug. 15, rounded up Dr. Morgentaler, five of his staff and 13 patients.
A jury acquitted him on Nov. 13, 1973, a verdict that set the pattern for two later trials in Quebec, but the first decision was overturned by the Quebec Court of Appeal the following year. Dr. Morgentaler was given 18 months, a sentence that he began serving on March 27, 1975, the same year that the law was changed in Canada so that a jury verdict can no longer be overturned on appeal. He was refused permission for a temporary release to receive the Humanist of the Year Award.
Then in June, he suffered a heart attack and was moved from prison to a nursing home. He was released in January 1976, after serving about 10 months. He was 15 pounds lighter and looked about five years older. "He wouldn't have been sent to jail if he had been French – but he's a Jew," the prominent feminist Laura Sabia wrote in a letter on behalf of the National Council of Jewish Women to Otto Lang, then federal justice minister and to Marc Lalonde, then minister for the status of women.
Meanwhile, Dr. Mortgentaler owed his lawyer $200,000, had lost his licence to practise in Quebec and was battling the Quebec revenue department, which claimed he owed $354,799.14 in back taxes on income they estimated at $1,440,000 between 1969 and 1972. Dr. Morgentaler claimed he grossed $704,000 and said he was being persecuted simply because he declared abortions as such on his income tax. The revenue department later reduced its claim.
These issues also contributed to the breakdown of his first marriage. Dr. Morgentaler, the abortionist, was not the man Chava (now Eva) had married and, with their two children, Goldie and Bamie, grown up, the couple had drifted apart and agreed to separate. He wanted to leave the Holocaust behind – believing that he had turned the rage he had been forced to internalize in the concentration camp into his abortion crusade – while she wanted to the honour the horrific past, creatively and emotionally. After they divorced in late 1970s, he married Carmen Wernli shortly before their son Yann was born on June 2, 1980. Ms. Wernli died in 2000 and Ms. Rosenfarb in 2011.
Dr. Morgentaler opened a clinic in Winnipeg on May 5, 1983 and it surprised no one when, about a month later, the police raided it and charged him and seven others with "conspiring to procure the miscarriage of females." Because the doctors' lawyers did not want to cloud the issue with what legally constituted conspiracy, the Manitoba attorney-general agreed, after seven months of lobbying, to change the charge to "performing an abortion," which put abortion, not conspiracy before the jury.
Despite his problems in Manitoba, Dr. Morgentaler opened a Toronto clinic on Harbord Street on June 15, 1983. It was raided by police in July. They seized some equipment and charged Dr. Morgentaler and two colleagues, Robert Scott and Leslie Smoling, with procuring illegal miscarriages. On Nov. 8, 1984, an Ontario jury, following its Quebec predecessors, acquitted him and his two associates.
Lawyer Alan Cooper, then a Crown counsel, said later that he prosecuted the case because he felt the law needed to be challenged. "I believed that then and I still believe that. If a person wants an abortion, that is her business. I don't think you should make somebody have a baby who doesn't want to." Mr. Cooper never expected to win the case, later telling The Globe that "I knew 90 per cent of Canada was against me. Dr. Morgentaler was like a national hero. Even devout Catholics were coming up to me during the trial and saying: 'How can you prosecute him?' Even my parents said that to me once."
Dr. Morgentaler was jubilant, but his victory was short-lived. Then attorney-general Roy McMurtry announced that the verdict would be appealed, but that no new prosecutions would be initiated. Ten days after the clinic reopened, a second charge was laid on Dec. 20, 1984. Dr. Morgentaler described it as "legal anarchy" and on Jan. 7, 1985 he was back in business, personally performing abortions at his Toronto clinic, while anti-abortionists picketed outside.
The jury verdict was subsequently reversed by the Ontario Court of Appeal in Oct. 1985. The case was referred to the Supreme Court of Canada, which ruled in 1988 that the abortion law under which Dr. Morgentaler had been convicted contravened Section 7 of The Charter of Rights and Freedoms. Forcing women to endure potentially life-threatening delays violated their charter guarantee of life, liberty and security of the person. The ruling put an end to the old arrangement under which legal abortions could only be performed in the health system after a patient had successfully petitioned a hospital-based committee of three doctors. The Supreme Court found that this cumbersome process was arbitrary, demeaning and potentially injurious to women and struck down the law.
In fact, Dr. Morgentaler was not responsible for making abortion legal in Canada. He challenged the existing law, which the Supreme Court declared unconstitutional in 1988. That left Canada without a law either forbidding or condoning abortion. In this void, abortion became a medical procedure governed by provincial and medical regulations – in all their variety. In 1989 in Quebec, Jean-Guy Tremblay got a court injunction to prevent his pregnant girlfriend, Chantal Daigle, from getting an abortion. Ms. Daigle went secretly to the United States where she had her pregnancy terminated, but the case went to the Supreme Court nonetheless. On Nov. 16, 1989, the Court ruled that a fetus is not a person in either Canadian common law or Quebec civil law. In other words, prospective fathers could no longer legally try to stop their partners from obtaining abortions by claiming to be protecting fetal rights. This was a huge victory for women's right to control their own reproduction.
The following year, Conservative prime minister Brian Mulroney introduced Bill C-43, under which doctors could be sentenced to two years in jail for performing abortions on women whose lives were not in danger. The bill was passed by the House, but failed to win approval on a tie vote in the Senate.
The absence of an abortion law didn't mean that women had equal and unfettered access to the procedure across the country, however. There were still too few doctors willing to perform abortions, too few hospitals and clinics willing to provide the necessary facilities, and too few health systems willing to pay for the procedures. Having won the war, Dr. Morgentaler spent most of the next two decades fighting public opinion, restrictive provincial statues, death threats and the bombing of his Harbord Street clinic in Toronto in May, 1992, before he could finally claim that he had eight clinics operating in Canada.
Even so, as recently as 2008, fewer than 20 per cent of hospitals in Canada provided abortion services, according to the Abortion Rights Coalition of Canada, access varied widely from urban to rural areas and from one province to another, with some jurisdictions refusing to cover fees from private clinics under their health plans and with woman in the far north often having to be flown south to have the procedure performed.
On Feb. 9, 1998, the year he turned 75, he married his longtime companion Arlene Leibovitch. They had met in the early 1980s, at his Toronto clinic, where she was working as a counsellor. Their son Benny was born on Jan. 9, 1988, two weeks before the Supreme Court decision was handed down. She owns the three remaining "Morgentaler" clinics.
In the last decades of his life, Dr. Morgentaler continued to be affected by the mood swings that had plagued him for most of his adult life and to suffer from heart disease, beginning with a stroke in 1994 and a milder one two years later. Then his only brother Mike, with whom he had survived Auschwitz and Dachau, died of heart disease in May, 1996.
Controversy continued to plague him. There was a huge fracas in 2005 when the University of Western Ontario decided to give him an honorary degree – his first. One horrified university benefactor withdrew a $2-million bequest, another sent a $10,000 cheque in support of Dr. Morgentaler. Some 12,000 people signed a petition demanding the university rescind its decision to grant an honorary degree to the 82-year-old father of abortion in Canada. In the end, despite 350 anti-abortion protesters assembling at the university gates, the June 16th ceremony went ahead.
Dr. Morgentaler urged graduating students to work within the system to make change, saying, "I do not advocate civil disobedience. . . . It's a hard way to change laws. You can change what's not going well in Canada by political process." Later in a press conference he expanded on those statements by saying: "Canada is a wonderful country with democracy still governing the rule. Within democratic principles, it is possible in Canada to affect change for better laws and procedures."
By 2008, the 20th anniversary of the Supreme Court decision, Dr. Morgentaler's supporters launched a new campaign: to see him nominated for the Order of Canada. His health was not robust – he had had emergency surgery for an aortic dissection in 2006 and had spent months recovering – and the award is not given posthumously. He had been nominated several times over the years, but each application was vetoed, including a major push in 2005 with a letter written by writer John Irving and signed by such Order of Canada luminaries as Pierre Berton and June Callwood.
Finally, after tough negotiations at the advisory committee, the award went forward, engendering outrage and disgust from anti-abortion activists and jubilation from pro-choice groups. "I'm actually surprised that the reaction isn't more violent than it is," Dr. Morgentaler said in a hastily arranged press conference in July, 2008, after news of his appointment was made public. "There are many groups, especially on the fundamentalist right and the Catholic right, who are adamantly opposed to the right of women to have abortions, especially safe abortions."
In a conversation, late in December, 2008, he was philosophical about why he was just a controversial figure. "I became the target of people who were opposed to abortion, and it was something I had to live with, but I am tremendously satisfied that my life was not in vain and that I was able to help a lot of people." At 85, he said he didn't fear death, but he "preferred to live" and hoped he would continue to do so for some time. Looking back on his life he was satisfied and happy that he was able to "fulfill the dreams and hopes of his parents and I am proud of that." Although he had no false modesty about what he felt he had "achieved" for Canadian women in terms of access to abortion, he felt sorry for the cost his family endured because of his campaign to change the law. "It saddens me that people close to me had to suffer because of my actions," he said. "I regret it, but I guess it was unavoidable."