Henekh "Henry" Morgentaler (March 19, 1923 – May 29, 2013) was a Polish-born Canadian physician and abortion rights advocate who fought numerous legal battles aimed at expanding abortion rights in Canada. As a Jewish youth during World War II, Morgentaler was imprisoned at the Łódź Ghetto and later at the Dachau concentration camp.
After the war, Morgentaler migrated to Canada and entered medical practice, becoming one of the first Canadian doctors to perform vasectomies, to insert intrauterine devices, and to provide birth control pills to unmarried women. He opened his first abortion clinic in 1969 in Montreal, challenging what he saw as an unjust law placing burdensome restrictions on women seeking abortions. He was the first doctor in North America to use vacuum aspiration and went on to open twenty clinics and train more than one hundred doctors. Morgentaler was jailed in 1975 for defying abortion law when the Quebec Court of Appeal overturned a jury's acquittal. The resulting Morgentaler Amendment to the Criminal Code restricted appeal courts from overturning acquittals. Morgentaler twice challenged the constitutionality of the federal abortion law, losing the first time, in Morgentaler v The Queen in 1975, but winning the second time, in R v Morgentaler in 1988.
In 2008, Morgentaler was awarded the Order of Canada "for his commitment to increased health care options for women, his determined efforts to influence Canadian public policy and his leadership in humanist and civil liberties organizations."Morgentaler named to Order of Canada, Globe and Mail, 2008-07-01 Morgentaler died at the age of 90 of a heart attack.
Life Morgentaler was born in Łódź, Poland, about southwest of Warsaw, to Josef and Golda Morgentaler. Before World War II, Morgentaler's father was active in the General Jewish Labour Bund in Poland. During the German occupation of Poland, a Jewish ghetto in Łódź was created and Jews were not allowed to leave it.Chava Rosenfarb biography Morgentaler's father was killed by the Gestapo, while Henry lived with his mother and younger brother in the Ghetto Litzmannstadt with 164,000 others. His sister had left for Warsaw with her husband before the start of the war. She was incarcerated there at the Warsaw Ghetto, and took part in the Warsaw Ghetto Uprising. She was killed at the Treblinka extermination camp.
When the Germans raided the Ghetto in Łódź with the help of the Jewish Ghetto Police, the Rosenfarbs and the Morgentalers (Golda and her sons Henry and Abraham) along with two other families hid in a room with the door concealed by a wardrobe. After two days in hiding, on August 23, 1944, they were found and deported to Auschwitz concentration camp. The boys never saw their mother again: Golda was murdered at Auschwitz. On August 27, Henry and Abraham were shipped to KL Landsberg, Dachau concentration camp, where they both remained until the end of the war. In February 1945, Henry was sent to KL Kaufering (a satellite camp of Dachau concentration camp). By the end of the war, he was in sick bay (Krankenrevier), whence he was finally liberated by the U.S. Army on April 29, 1945. After his release at age 22 Henry weighed just . He entered a Displaced Persons Hospital in Landsberg am Lech. After a few months there he was moved to a DP Hospital in St. Ottilien, and thence with Abraham to Feldafing, a Displaced Persons Camp, in Bavaria.
After the war In 1946, Abraham emigrated to the United States. In 1947, Henry made his way to Brussels in Belgium, where he rejoined his friends the Rosenfarbs. Because they were not in Belgium legally, he and his fiancée, Chava Rosenfarb, were required to emigrate. Chava's sister, Henia Reinhartz, in her Memoir, "Bits and Pieces,"Reinhartz, Henia. Bits and Pieces described the harsh economic conditions while the family, and Henry, lived in Brussels. One picture shows Henia, Chava, and their mother wearing coats made from blankets donated by UNRRA. In 1949, Henry and Chava married. They left Europe in February 1950 on the RMS Samaria (1920) sailing to Canada.
The couple settled in Montreal, where Chava resumed her vocation as a writer. Several months later their first child, Goldie, was born. Their second child was a son, Abraham. Henry was, by his own admission, a proud womanizer. Their marriage ended in divorce in the mid-1970s. Chava died on January 30, 2011.
Career Morgentaler received his medical education from the Université de Montréal, graduating in 1953. After receiving his Canadian citizenship, he practised medicine in the east end of Montreal. He started as a general practitioner in 1955 but increasingly specialized in family planning, becoming one of the first Canadian doctors to perform vasectomies, to insert intra-uterine devices, and to provide birth control pills to unmarried women."Henry Morgentaler" The Canadian Encyclopedia (accessed 2011-08-30).
On October 17, 1967, he presented a brief on behalf of the Humanist Association of Canada before a House of Commons Health and Welfare Committee that was investigating the issue of illegal abortion.Bennett, Edward M. Social Intervention, Theory and Practice, Page 258. "Morgentaler was active in attempting to change the pre-1969 law" Edwin Mellen Press, 1987. Morgentaler stated that women should have the right to safe abortion. The reaction to his public testimony surprised him: he began to receive calls from women who wanted abortions. Robert Malcolm Campbell and Leslie Alexander Pal wrote, "Henry Morgentaler experienced the [abortion] law's limitations directly in the supplications of desperate women who visited his Montreal office."Campbell, Robert Malcolm and Pal, Leslie Alexander.The real worlds of Canadian politics: cases in process and policy, p. 13. Broadview Press (1991) Morgentaler's initial response was to refuse: "I hadn't expected the avalanche of requests and didn't realize the magnitude of the problem in immediate, human terms. I answered, 'I sympathize with you. I know your problem, but the law won't let me help you. If I do help you, I'll go to jail, I lose my practice—I have a wife and two children. I'm sorry, but I just can't!'" For a time he was able to refer the women to two other doctors who did abortions, but they became unavailable. There was no one to whom he could send them, and some of them were ending up in the emergency department after amateur abortions. He has said that he felt like a coward for sending them away and that he was shirking his responsibility. Eventually, in spite of the risks to himself—loss of career, a prison term for years or for life—he decided to perform abortions and, at the same time, challenge the law. He knew from other doctors and from newspaper reports that women in Montreal had died from incompetently performed abortions. He knew that the women were determined to get abortions in spite of the danger to their health and lives. He knew that he could prevent those unnecessary deaths, so he determined to use civil disobedience to change the law.Wright, Eleanor Pelrine. Morgentaler: The Doctor Who Couldn't Turn Away, p. 28–29.
In 1968, Morgentaler gave up his family practice and began performing abortions in his private clinic.Morgentaler Clinic (2006). About Us He devoted his clinic to performing abortions on women as well as providing birth control and contraceptives, though it was illegal at the time. At the time, abortion was illegal except for cases in which continuing a pregnancy threatened the life of the pregnant woman. On August 26, 1969, an amendment to the Criminal Code legalized abortion in Canada if performed in a hospital after approval of a Therapeutic Abortion Committee. There was, however, no requirement for a hospital to set up a committee and only about one-third of hospitals did. This left many areas without legal abortion, forcing women to travel and inducing barriers and delays. Some committees never met. Even if they did, they never saw their "patient" and yet her fate was determined by their subjective opinions. In addition, there was no appeal of a TAC's decision.Statistics Canada (2006). Induced Abortions Statistics 2003 Morgentaler's abortions remained illegal under the new law because he did not submit them in advance to a TAC for approval; they became legal in 1988, when section 251 of the Criminal Code (now known as section 287) was found to be unconstitutional by the Supreme Court of Canada.
In 1983, Morgentaler debated former abortion doctor Bernard Nathanson for an hour on a Canadian national superstation.Video of the 1983 CHCH-TV debate, youtube.com
After Quebec stopped prosecuting him in 1976, Morgentaler opened an abortion clinic in Ontario. In spite of prosecutions, other provinces followed. In 2003, he was able to close his Halifax clinics because a doctor that he trained was now performing abortions at a local hospital, QEII Health Sciences Centre.
In 2006, Morgentaler had to stop performing abortions after undergoing a heart bypass surgery. He continued, however, to oversee the operation of his six private clinics.Joseph Brean. "'Proud' to join Order" , The Gazette, Montreal, July 3, 2008.Ann Marie McQueen. "Part 3 : 'I rose to the challenge'", Edmonton Sun, December 17, 2007.
Judicial battles
Quebec In 1969, Morgentaler opened an abortion clinic in Montreal. He said that he applied for status as a model abortion clinic and proposed to the federal and provincial governments that abortions could be safely done outside hospitals. He recounts that neither the provincial nor the federal government showed any interest. Each said it was the other's responsibility. No one came to inspect the clinic. Instead, they sent the police. On June 1, 1970, Montreal city police raided Morgentaler's clinic and laid several charges of performing illegal abortions."Vindicated, Morgentaler wants to quit abortions" by Alicia Ambroziak. The Calgary Herald, 28 April 1977. The first case did not come to trial until 1973; in the meantime, women's groups organized in support of Morgentaler and he continued to perform abortions. In 1973, he stated that he had performed 5,000 safe abortions outside hospitals, demonstrating that a hospital setting was not necessary.
Between 1973 and 1975, Morgentaler was tried three times in Montreal for defying the abortion law; each time, he raised the defence of necessity, and each time, he was acquitted on that defence despite having acted against the abortion law. In each successive case, the juries took less time to reach their decision to acquit: at the third trial, they took one hour. When juries are refusing to enforce a law that they perceive as unjust, it is called jury nullification.
Each charge was brought to trial separately. At the trial of the first charge in 1973, Morgentaler was defended by Claude-Armand Sheppard.'The Morgentaler Effect' by Wayne Summer Accessed 2021-07-08 Sheppard presented the "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.Jhappan, Radha. Women's legal strategies in Canada, p. 359. 2002. After hearing some of those women as witnesses, the jury acquitted him.
The province appealed the acquittal. The jury's acquittal was overturned by five judges on the Quebec Court of Appeal in 1974, who substituted a conviction. The doctor appealed his conviction to the Supreme Court of Canada, but the court upheld his conviction in a 6–3 decision, stating that the danger to women was not immediate. He was sentenced to 18 months in prison and began serving his sentence in March 1975.