Henry Morgentaler, 1923-2013
By 
I believe, however, that the flaw in the present legislative scheme goes much deeper than that. In essence, what it does is assert that the woman’s capacity to reproduce is not to be subject to her own control. It is to be subject to the control of the state. She may not choose whether to exercise her existing capacity or not to exercise it. This is not, in my view, just a matter of interfering with her right to liberty in the sense (already discussed) of her right to personal autonomy in decision-making, it is a direct interference with her physical “person” as well. She is truly being treated as a means — a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that s. 251 of the Criminal Code deprives the pregnant woman of her right to security of the person as well as her right to liberty.
—R. v. Morgentaler (Wilson, J., concurring)
Henry Morgentaler passed away earlier this week.
In the least important impact Morgentaler would have, he is indirectly the reason why I do what I do. The landmark Supreme Court opinion — which I still vividly remember being handed down — he was responsible for is the direct source of my interest in reproductive freedom and constitutional law, which has obviously turned into a career.
The impact of his work on the freedom of Canadian women, however, was both massive and clearly positive. His clinics were civil disobedience in the best sense — he believed that women without connections should have the same access to safe abortions that affluent women did, and he trusted juries to do the right thing:
Dr. Henry Morgentaler not only changed abortion law in Canada, but his experience in the courts led to the establishment of an important legal protection that applies to all Canadians: Never again will a judge be able to simply toss out a jury acquittal and replace it with a conviction.
Morgentaler, who died yesterday at age 90, always said that no jury of reasonable people would ever find him guilty of a crime just because he provided women with safe abortions, and he was right.
The fight he took to the Supreme Court would ultimately ensure that safe providers did not have to risk prosecution. I will have more on this when I’m done conferencing, but the opinion is worth reading as well — not only Bertha Wilson’s famous explicitly concurrence, but the plurality opinions that do a very careful job explaining the fundamental irrationality and inequity of “moderate” regulations of abortion.
A great man. R.I.P.