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Chapter 1-6

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University of Guelph
Political Science
POLS 3130
Dennis Baker

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 imprisonment. - 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 of guilty 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 birth. 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 Freedoms. - 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 mother. 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 th th 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 wreck.” - 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 eventually happens). - 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 immortality...” 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” policy o British law was a breakthrough and urged lawmakers elsewhere, including Canada, to follow suit. - 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. th - 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 process. 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 movement. - 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 disobedience. 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 Medical Association. 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 Armand Sheppard. - 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 issue. - Aug 15, 1973 he was arrested again and faced 13 separate charges, each with a potential life sentence. 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 Railroad. o It was poor, rocky soil, and one-third of every bushel went straight to their new landlord. - 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 country.” - 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 Steelworkers. 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 Thompson. - 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 souvenir shop. 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. - Borowski
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