Mind the asterisk, Henry

The Telegraph Journal July 18, 2008
By Lisa Keenan

Tennessee Williams' iconic character Blanche DuBois is best remembered for her closing line from A Streetcar Named Desire. "I've always depended on the kindness of strangers," Blanche says, as she departs the stage in the care of a doctor and matron. In its context it's a most memorable line, and it popped to mind the week before last, on news that Henry Morgentaler had been called to the Order of Canada.

Like Blanche, Henry Morgentaler is something of an icon, at least to a good number of his supporters. The Montreal doctor is, to many, a living emblem of a woman's right to control her body. To others, he's the founder and singular embodiment of abortion in Canada. The truth, of course, like Blanche's memories of life on the estate, lies somewhere in between; which is useful to remember as we consider what the Order of Canada will be like with Dr. Henry as a member.

Despite his reputation as Canada's most famous abortion provider, Henry Morgentaler's role in the abortion fight is often overstated. Abortion was legal in Canada well before Morgentaler started challenging the law that governed its application (the iconic Section 251 of the Criminal Code). In 1969 revisions to the Criminal Code, which created three-doctor therapeutic abortion committees at hospitals to assess women seeking abortions, came about as a consequence of various court rulings in several provinces which had created an exemption in the then criminal law making abortion a crime. It wasn't quite the "back alley" that is often alluded to. In 1971, almost 31,000 abortions were done in Canadian hospitals, following the committee route. By 1981, the number was more than 65,000. It wasn't, however, a system that Henry Morgentaler felt compelled to play within.

Morgentaler's legal troubles came about when he refused to comply with the "committee rules" that the law required. His Montreal clinic offered "abortion on request." It was for this that he found himself in court and, for a period, in jail. In 1975, Dr. Morgentaler appealed to the Supreme Court to overturn his conviction for violating Section 251 (the "committee rule"); the Court refused. Nonetheless, in 1976, after it failed to convince a jury to convict Dr. Morgentaler (for the third time), the province of Quebec gave up enforcing Section 251 at private clinics.

Dr. Morgentaler's next trip to the courts came after he set up a free- standing clinic in Toronto (near the university) and challenged the authorities to shut him down. They did, which set the stage for the Charter case in the Supreme Court of Canada.

Morgentaler supporters often describe the Supreme Court decision in R. v. Morgentaler (1988) as the case that created a right to an abortion under the Charter. The case is very important in Canadian law, but not for that reason. Only one justice (Bertha Wilson) found that Section 7 of the Charter (Life, liberty and the security of the person) granted an absolute right to abortion, and even she qualified her opinion in the later stages of pregnancy. None of her colleagues (the Court split 5-2, but there were three opinions for the majority) agreed with her on this point.

Instead, the majority ruled in Dr. Morgentaler's favour by examining the application of Section 251, which they found deficient for several reasons. The Court observed that Section 251, which purported to create an exception to the prohibition against abortion, did not operate as intended. By 1987, abortions were not a rare occurrence in Canada (there were more than 63,000 in-hospital abortions performed in 1986) and they were covered by most provincial health plans. Further, the Court found while Section 251 purported to present a national scheme for assessing abortions on a case-by-case basis, in practice this didn't happen. In some places (large cities primarily) many of the committees operated effectively as a rubber stamp for the women who came before them; while in other parts of Canada (such as P.E.I.) there was no access to abortion services. Further, more than a quarter of Canadian hospitals didn't have committees established, resulting in delays that affected the women who sought abortions performed in hospitals. This created a procedural unfairness which could not but upheld under the Charter. Section 251, was thrown out, and Dr. Morgetaler won, but only by default.

All of which said little about Dr. Morgentaler. His victory, such as it was, was of a technical nature, and not based on the broad principles that Dr. Morgetaler claimed to hold (protecting women's rights).

And now Henry is a member of the Order of Canada. His supporters think it is just desserts, abortion opponents think otherwise. With his appointment we have learned a lot of things about the Order and how it functions, or at least how it is supposed to function. Ordinarily the committee that decides on these matters makes a unanimous choice, but in this case it didn't - there was a forced vote, with at least two objections.

Ordinarily, an individual is considered once for the Order, and only reconsidered if there is a material change in merit. In Dr. Morgentaler's case, apparently his name had been considered before, and rejected. And yet, this time he was reconsidered, where others haven't been. Technicalities, technicalities.

Different rules and different treatment; Henry Morgentaler, OC*. Seems to be the case in point.

Lisa Keenan of Saint John is a lawyer and the former president of the New Brunswick Progressive Conservative Party. Her column appears on Friday.