Morgentaler vs Borowski
Chapter 1-6 Summary
Chapter 1: The Story of the 2 Unreasonable Men
- Dr. Henry Morgentaler performs abortions.
- In 1973, he was facing 3 criminal charges of illegal abortions
- Under CDN law, these abortions were illegal, each carrying a potential penalty of life
- At the same time the American court had ruled that state-imposed restrictions on abortion
during the first 3 months of pregnancy violated a woman’s constitutional “right to privacy.”
o Roe v Wade
- Morgentaler was optimistic about the prospects for a similar change in Canada.
- He conducted a campaign of civil disobedience unparalleled in Canadian History
o Publicly claimed 5,000 illegal abortions
o The result: a second arrest and 10 more charges of illegal abortions.
- Over the next three years he was tried and acquitted 3 times.
o Went to prison for 10 months
o The Quebec Court of Appeal overturned his first jury acquittal and substituted a verdict
o Supreme Court rejected his appeal
o Politicians, not judges came to his aid.
- 10 yrs after his first trial he opens abortion clinics in Toronto and Winnipeg
o The new round of civil disobedience was prompted in part by Canada’s new Charter of
Rights and Freedoms.
o It amended Canada’s written constitution by adding a long list of individual and group
rights, thereby offering the possibility of an American-style judicial activism by the
Canadian Supreme Court.
Morgentaler hoped that under the Charter, his original dream of Canadian
versions of Roe v Wade would be realized.
- Joe Borowski, in December 1981 won a 3 year legal battle to obtain the right to challenge
Canada’s abortion law.
o The Supreme Court granted Borowski standing to challenge the constitutional validity of
Canada’s abortion law.
- Borowski’s victory upset Mortgentaler.
o Even more appalling to Morgentaler was the prospect of Borowski winning the next
stage of his legal crusade against abortion.
- Borowski assembled an impressive panel of medical experts to testify about human life before
o He argued that Canada’s abortion law violated the right to life of the unborn and should
be declared invalid.
o If he won, access to abortion might be limited to life-threatening pregnancies.
o Ironically his case was also strengthened by the Canadian Charter of Rights and
- If Borowski was going to use the Charter to advance the rights of the fetus, then someone
needed to bring a case to advance the rights of the women.
o Therefore Mortgentaler renewed his campaign of civil disobedience.
- Morgentaler vs. Borowski became more than just the right to choose vs. the right to life. o Their trials irritated old wounds in the Canadian body politic
o Both trial resonated with the ongoing battle between religion and modern science,
between nature and technology
o As their story spilled into courtrooms, they evoked the challenge of civil disobedience to
the rule of law, pitting judges against juries and legislators against judges.
- The final analysis, the trail came to symbolize the new challenge posed by the Charter to
Canadian democracy: parliamentary supremacy vs. Judicial supremacy.
Chapter 2: The 1969 Abortion Reform
- Prior to 1969, the Criminal Code of Canada made abortion a crime except to save the life of the
o In 1969 Canada amended its abortion law
- 13 century, the jurist Bracton argued that under common law it was a crime to abort a fetus
after it became “animated,” meaning it received its soul, something thought to occur between
8 and 12 week after conception.
- Sir William Blackstone argued aborting the fetus was considered homicide upon ‘quickening’,
that is, when the mother becomes aware of the baby moving insider her abdomen, which occurs
around 20 weeks.
o The movement is interpreted as a sign that the baby had “come to life”.
- R. v. Bourne 1937
o British judge expanded the grounds for legal abortion to include a pregnancy resulting
from rape that would have made the innocent young victim a “physical or mental
- As recently as 1966, a president of the Canadian Bar Association could declare that “we tend to
make a change in our law only after England has done so.”
o In the case of abortion, this proved to be prophetic (predicting something that
- The movement to decriminalize abortion was under way in the early 1960’s in Britain.
o Wolfenden Report (1957) “there must remain a realm of private mortality and
o The report was not directly concerned with abortion, but its underlying principle – that
criminal law must not be used to enforce private morality – played a decisive role in the
ensuing debate over abortion.
- 1967 Britain became the first western European nation to adopt an “abortion on demand”
o British law was a breakthrough and urged lawmakers elsewhere, including Canada, to
- The members of diverse groups (Canadian Medical Association, Canadian Bar Association,
United Church, National Council of Women, Toronto Globe and Mail) who sought to change the
abortion law were generally highly educated and enjoyed high socio-economic status.
o Abortion law reform in Canada, came from the top down.
- The most influential demands for changing the abortion law came from the Canadian Medical
Association, helped by the Canadian Bar Association.
o Their principle motivation was neither sexual equality nor social engineering but
professional self-interest: to protect doctors against the legal uncertainties of the
current law. - Pierre Trudeau was the political ally the abortion reformers needed.
o This all could not be just an outspoken yet inconsequential backbencher, it had to be a
cabinet member who commanded the respect of his or her peers and who was willing to
try to lead the public opinion rather than follow it.
- October 3, 1967 the House of Commons Standing Committee on Health and Welfare began
hearings on abortion law reform
o Majority of submissions favoured change.
o A radical submission came from Henry Morgentaler. He boldly asserted that “unwanted
pregnancies must be viewed as [biological] accidents ... *and that+ it is a woman’s
inalienable right to have mastery of her own body.”
- The most sophisticated and sustained defence of the unborn against a more permissive abortion
law came from the Canadian Catholic Conference.
o Is explained that its opposition was not based just on moral beliefs unique to Catholics.
o Abortion was portrayed as a threat to the well-being of Canadian society as a whole.
“we are much concerned, that a too open health clause may result in widespread
disrespect of, and assault on the life of the unborn child.”
- Decemeber 21, 1967 Trudeau introduced the Omnibus Reform Bill.
o By placing changes on abortion (and also homosexuality) in the midst of a bill touching
such unrelated maters as drunken driving, firearms, lotteries, and harassing phone calls,
he gained a tactical advantage.
- The timing of the bill was also an advantage. The opposition was caught off guard and
unprepared. Trudeau was able to hurry the bill through first reading the same day, only hours
before Parliament adjourned for the holidays.
- Still more skilful wad Trudeau’s handling of the bill before the press and the public.
o He stated to the reporters, “The state has no business in the bedrooms of the nation.”
o This offhand, almost flippant remark would subsequently permeate (spread through)
the consciousness and political vocabulary of the entire society.
- On march 13, 1968 the Committee recommended expanding the permissible grounds for
abortion to include threats to the health of the mother.
- The Omnibus Bill had to be reintroduced after the 1968 elections.
- During the abortion debate only three liberal backbenchers spoke against the abortion
provision, while nine spoke in support.
- On may 9 , toward the end of the third reading, trudeau allowed a free vote on a motion to
eliminate completely clause 18, the abortion provision.
o 68/155 liberal members of parliament somehow managed to be absent from parliament
when the vote was taken.
o 40/72 members were absent from the conservatives.
o The “absents” outnumbered both the “ayes” and the “nayes”. The motion was thus
defeated, paving the way for adoption of the bill.
- The new law represented a political compromise.
o Abortions became readily available, and there was now broader legal protection for
doctors who performed them.
o S.251 still treated abortion as a crime. Life imprisonment for the abortionist and 2 years
for the women
o Subsection 4 offered “excusing” which defines “legal” abortion as one performed in an
accredited hospital after approval from the therapeutic abortion committee (TAC)
o The approval hinged on 3 doctors finding that the pregnancy would be likely to
engender “the life or health” of the woman. - The new policy represented an accommodation that provided something for everyone.
o Doctors were now protected and maintained supervisory control over the abortion
o Reformers could be told that the law increase access to abortion services
o Anti-abortion groups could be told that abortion was still illegal except in certain
narrowly defined circumstances.
o The reform effectively shifted responsibility for administering and enforcing the new law
to the provinces.
Chapter 3: Conscience Versus Law: Morgentaler’s Path to Civil Disobedience
- As the decade of the seventies opened, Mortgentaler was unknown outside of Montreal. By the
end of the decade his name and face would be familiar to Canadians from coast to coast.
- He was born Jewish and poor in Poland in 1923.
- His parents rejected orthodox Judaism and were active in the Bund, the Jewish socialist labour
- From his parents Morgentaler inherited the atheism and belief in reform and historical progress
that were to mark his adult life.
- Morgentaler was caught in the Nazi Holocaust. His father disappeared in 1940. His sister was
arrested, deported and died in 1944. His mother was last seen at the “selection” of workers and
non-workers in Auschwitz-Birkenau concentration camp. Later, Morgentaler and his brother
were shipped to Dachau where he caught bronchitis during the winter of 1945. He was
transferred to a camp for the sick and dying. It was there, close to death, he and his brother
were liberated by the American army on April 29, 1945.
- His experience of the Nazi Holocaust left permanent marks. It reinforced his atheism. The
experience also planted a strong distrust of government, the seeds of his future civil
o The equation of the legal with the just was shattered in the political consciousness of
the young Morgentaler.
- He found his childhood sweetheart, studied medicine in Germany and Belgium and emigrated to
Canada in 1950.
- 1957 he entered psychoanalysis.
o He concluded that his childhood experiences of anti-semitism and the Holocaust had
caused him to fear competition, to be too passive and under-ambitious.
- He developed a new commitment to public action and social reform led to his involvement in
the Montreal Human Fellowship. 1964 he became the president. Also became increasingly
estranged from his wife.
- He became interested in the scientific control of human sexuality.
o In the middle of the 20 century, new birth control techniques offered the historically
unique possibility of separating sexual intercourse from pregnancy and reproduction.
o Opposed to this brave new world, were traditional morality, religion, and the Criminal
Code of Canada.
- Abortion seems to have provided the issue that the new Henry Morgentaler was looking for:
science vs. Religion, technology vs nature, reason vs faith, individual conscience vs law,
Mortgentaler vs the state.
- His 1967 testimony before the Commons Committee on Health and Welfare helped him launch
the Humanist Association of Canada in 1968. o As founder and first president he was able to use the new association to publicize his
ongoing campaign for abortion reform.
- His growing media profile had a second important consequence
o He found himself besieged with request to perform abortions.
o On one hand, his passionate commitment to safe and accessible abortions demanded
that he help the women who came to him for abortions
o On the other hand was the criminal law of Canada.
- He eventually chose conscious over law.
- He adopted the vacuum suction technique and improved it through trial and error.
o 1973 he published a description of his abortion technique in the Journal of the Canadian
o Based on 5,641 abortions, he hoped his article would “dispel the myths about abortion”
and “prove that abortions can be done safely in clinics.”
- June 1 1970 he was arrested and later charged with three counts of criminal abortions.
- He had already consulted one of Montreal’s best-known criminal and corporate lawyers, Claude
- The FLQ crisis exploded across Quebec, absorbing all the government’s attention and energy for
months to come. Morgentaler was a small fish and could be safely ignored.
- Sheppard’s strategy of procedural delay worked well.
- When the U.S Supreme Court handed down its decision in Roe v. Wade in Jan 1973, this
provided the spark Morgentaler needed.
- For Morgentaler, the news confirmed the wisdom of Sheppard’s strategy of delay.
o It seemed to signal that the tide of public opinion had finally changed, and the time for
action had come.
- On March 1973 he publicly announced that he had personally performed over 5,000 abortions
in violation of section 251 of the Criminal Code.
o He sent letters to the provincial and federal health ministers, repeating his disclosure of
5000 abortions, requesting that his clinic be recognized as an authorized abortion clinic,
and offering to share his acquired expertise with both governments to set up similar
clinics across Canada.
o Same letter was sent to all party leaders.
- Not satisfied, Morgentaler further escalated his campaign of civil disobedience.
o On May 13 (Mothers day) CTV broadcast his abortion procedure from start to finish.
o Public reaction was predictably strong
o Protests poured into the government and press
- After the article describing his abortion was sent to the Canadian Medical Association Journal,
which explained that all 5000 abortions were done in his clinic violated section 251 because they
were not done in a hospital.
o The Quebec government could no longer ignore Henry Morgentaler and the abortion
- Aug 15, 1973 he was arrested again and faced 13 separate charges, each with a potential life
Chapter 4: Rising Star in the West: The People’s Politician
- Joe Borowski was born near Wishart, Saskatchewan in 1932.
- His parents immigrated to Canada from Poland in 1930 - They got a quarter second lease from the biggest landlord of the Prairies, the Canadian Pacific
o It was poor, rocky soil, and one-third of every bushel went straight to their new
- At 12 Borowski left school to harvest the crop. At 14 he left home altogether in search of “big
money” in the mining, fishing, and lumber camps of the North.
- The next 12 years of his life he worked across the North, explaining to a reporter, “you’d work
two weeks here, three weeks there, drifting from job to job.” I was young and wanted to see the
- In 1952 he met and married Jean Zelinski, another nineteen-year-old from Saskatchewan.
Together they continued to live and work in the Yukon.
- By 1960 the Borowskis’ had three children and they were living in Thompson, Manitoba where
Joe Borowski continued to work as a nickel farmer.
- Once the crew completed the tough work of sinking shafts into the hardrock of northern
Manitoba, INCO (International Nickel Company) took over and everything began to change.
o Wages were cut, ($1,500 to $600) and productivity bonus pay was abolished.
o Joe borowski never liked big corporations. As a boy he watched the CPR take one-third
of his fathers annual crop.
o INCO was no better
- INCO’s callous treatment of the miners began to forge the new Joe Borowski – the political
activist, the moralistic crusader, the champion of the little guy.
o He helped kick out the Mine-Mill union and brand the more militant United
o 1964 he led his union in a successful strike against INCO
o He was a stickler for mine safety and a vocal critic of the company’s mine safety record.
- 1965 he was fired for “insubordination”
o He wasn’t going to let INCO run him off like a dog and decided to open a variety store in
- INCO owned and ran everything in Thompson and so the company was determined to prevent
its ex-employee from opening a store.
o Within weeks Borowski was on the step of the legislature in Winnipeg and within a year,
Thompson had an independent town council and Borowski had his store.
- Joe’s crusades were slowly drawing him into public life. His activism also transformed him from
a Tory to an NDP supporter.
o When NDP established a constituency association in Thompson, Borowski was elected
its first president.
- 1968 Borowski went to jail for refusing to collect a new provincial sales tax on purchase at his
o Borowski won even more public sympathy by actually paying the uncollected sales taxes
out of his own pocket.
o Government said this won’t do – that the tax had to be collected from the purchaser –
and sent Borowski to jail 3 different times.
- Feburary 1969 Borowski ran in a by-election and won
o It foreshadowed even larger changes in Manitoba politics.