Henry Morgentaler Abortion Case Study

The case of Dr Henry Morgentaler was unique and one which completely challenged the Canadian justice system, as well as Canadian ideas on liberty. In 1970, after two years of performing abortions on patients, Morgentaler’s practice was raided by the Montreal police force, due to pressure from the Royal Canadian Mounted Police (RCMP), (Cowen, 1984). In Canada, as of 1969, abortions were an extremely limited procedure, as they were only legal if approved by a hospital therapeutic abortion committee, they were not permitted to be performed within a hospital and were only performed if the pregnancy was a threat to the woman’s life, (Marshall & Mclaren, 2013). Morgentaler disagreed with the law in place as he felt that the decision should he that
of the women. Consequently, while tried for his acts, he consistently brought up that women should have the right to control the reproductive rights.
Furthermore, that by having abortions performed by medical professionals, he was in fact, saving the lives of thousands of women, as they were no longer forced to perform abortions on themselves, which had a high mortality rate, (Cowen, 1984). While he was convicted for failing to abide by federal abortion laws within Canada, Morgentaler believed that he was abiding by the laws, by preventing the need for self-performed abortions, thus potentially saving the lives of women who could not or wished not to carry out their pregnancy. The film Democracy on Trial: The Morgentaler Trial, follows the complex trial of Morgentaler within a democratic society and displays how not all basic rights are protected by the government, and that some democracies do not give power to individuals about their bodies. Additionally, Morgentaler not only played an important role in reconstructing reproductive rights, but also the Canadian legal system, (MacKinnon, 2013). Mongentaler’s trial was one that deeply challenged the interpretation of citizens rights within a democratic
society. Subsequently, Morgentaler is now remembered as an advocate for the reproductive rights of Canadian women and as someone who played an instrumental role in the Supreme Court ruling, which deemed the federal laws on abortion unconstitutional, thus legalizing the procedure, (Marshall & Mclaren, 2013). While abortion is now legal in Canada, as Canada was considered to be a democratic, liberal society in the 1970s, then ownership of one’s body should exist, and as brought up Michael J. Sandel’s book Justice, should the government have a say as to what citizens do with their bodies.
The concept of owning oneself is discussed in a chapter of Sandel’s book Justice. The chapter outlines the political philosophy of libertarianism, which claims that citizens have “ a fundamental right to liberty - the right to do what we want with the things we own, provided we respect other people’s rights to do the same,” (Sandel, 2009, pp. 59-60). Therefore, the state should be limited, not only in the market but also in policy and law. Furthermore, any state which has laws or policies in place which are paternalistic, promote notions of virtue or moral, and redistribute wealth and income are unjust, (Sandel, 2009, p. 60). While libertarianism does not fit the values of one area on the political spectrum, but multiple areas, (Sandel, 2009, p. 61), its overall objective is to protect the liberty of citizens.
A libertarian view on the trial of Dr.
Morgentaler explored in the docudrama Democracy on Trial: The Morgentaler Trial would simply be that government policies and laws around abortion are unjust, for numerous reasons as explained in Sandel’s Justice. Firstly, the abortion laws which were in place did not allow for the ownership of women’s bodies. Libertarianism would argue that there should not be any laws surrounding abortion, as it is not an issue which the state should have had any say in at all. Therefore, Morgentaler should have never been tried, as he was acting upon the wished of others, and not performing the abortions to revoke basic fundamental rights to liberty of the women. That being said, depending on one’s perspective on abortion, claiming ownership of one’s body in the case of getting an abortion could be hurting another person. Secondly, there should be no moral legislation enforced by the government. Libertarians are opposed to the use of law to promote notions of virtue or to express moral convictions, (Sandel, 2009, p. 60). As mentioned later on in Justice it is impossible to discuss abortion without considering religion or questions of morality, it is impossible to discuss abortion without considering religion or questions of morality, (Sandel, 2009, p. 253). While abortion is now legal in Canada, it is still a common area of contention, especially amongst political groups. However, as argued by libertarianism, any sort of government legislation
surrounding subjects like abortion or similar areas of controversy, would be unjust.