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Canada Controversial abortion doctor faced a lifetime of persecution

Henry Morgentaler, the Holocaust survivor and medical doctor who won a Supreme Court decision making abortion legally available in Canada in 1988, has attracted admiration from pro-choice groups and condemnation from anti-abortion activists. That divergence will likely remain unchanged with the news that the 85-year-old has joined the illustrious group of Canadians who have won the country's highest civilian honour.

Dr. Morgentaler was born March 19, 1923, in Lodz, about 120 kilometres southwest of Warsaw. Although predominately Catholic, the city had a sizable Jewish community amounting to just over 30 per cent of the population. As a boy, Henry was taunted by Catholic kids who accused him of killing Jesus. A good student, his only rival for top marks was Chava Rosenfarb, the tall dreamy daughter of Bundist colleagues of his parents. They met when they were nine, started dating when they were 14, and shared dreams of an intellectual future together.

All thoughts of romance or of higher education were dashed when the Germans occupied Lodz on Sept. 8, 1939, and quickly imposed repressive measures against Jews. His father Josef was arrested and taken to a detention camp, where he was tortured and eventually murdered. Henry Morgentaler, his mother and his brother Mike remained in the Lodz Ghetto, making machinery, boots, munitions and other essential goods for the Nazi war machine until August, 1944, when they were transported in cattle cars to Auschwitz. He and his brother, being young and relatively strong, were sent to work details at Dachau in Bavaria. They never saw their mother again.

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After the Allies liberated the camps at the end of the Second World War, the two surviving Morgentalers reunited with Chava Rosenfarb at a refugee camp. Along with a dozen other Jewish students, Henry Morgentaler was accepted on scholarship into medical school at Marburg-Lahn University in the Hesse region of Germany. A year later, he left to finish his studies in Brussels, where Ms. Rosenfarb was teaching Yiddish and writing poetry and plays.

They married early in 1950 and immigrated to Montreal, where their daughter Goldie was born in August, a month before Henry Morgentaler was admitted as a medical student at the University of Montreal. He graduated in 1953, but was unable to work as a doctor because in those days you needed to be a Canadian citizen to practise medicine in Quebec. Consequently, he took a number of low-level medical appointments until he was finally granted citizenship two years later and was able to open a practice as a family doctor in the east end of Montreal.

Although he had reason to be happy, especially after his second child, Abraham, was born in the spring of 1956, Dr. Morgentaler was overwhelmed by the traumas of his early life and tortured by nightmares. In 1960, he embarked on a four-year course of therapy and later tried unsuccessfully to become a Freudian psychoanalyst.

Three years later, he appeared to have found the philosophical and social engagement that he longed for in the Humanist Fellowship of Montreal, an organization that promotes improving society through reason, scientific inquiry and compassion. He began speaking about the group on radio and television broadcasts and in community panels and advocating for a religiously neutral school system in Quebec and a reform of the abortion law.

By now a dynamic and equally fluent public speaker in both French and English, Dr. Morgentaler was an obvious choice to become spokesman for the Humanist Society before a House of Commons committee on Oct. 19, 1967, arguing that pregnant women had the right to terminate unplanned pregnancies in safe abortion procedures. That appearance ultimately changed his life, the lives of thousands of women, and Canadian jurisprudence.

His statements about a woman's right to abortion made headlines, and suddenly desperate women began showing up at his medical office begging him to help them get rid of unwanted fetuses. He kept saying he couldn't help them until, as he explained to The Globe and Mail in 2003, he realized that he was "caught in my own rhetoric" feeling "like a coward and a hypocrite."

In 1968, Dr. Morgentaler secretly performed an abortion on the daughter of a close friend. The following year, he gave up his family practice and became a full-time abortionist in a well-staffed, well-equipped clinic, charging between $200 and $300 for each procedure. He pioneered the vacuum suction method in Canada.

At that time, an abortion without the approval of a hospital committee was illegal in Canada. Charges were laid against him in May, 1970, but the case did not go before a jury for another three years. By that time, Dr. Morgentaler had offered himself as an Independent candidate in the 1972 federal election in the Montreal riding of Saint-Denis, seeking another platform for his pro-choice agenda. He lost by such an overwhelming majority that he had to forfeit his deposit.

Undeterred, and in fact buoyed by the United States Supreme Court ruling in January of 1973 in Roe v. Wade that women had a constitutional right to abortion, he launched a cross-country speaking tour to campaign for a change in the abortion laws, telling cheering supporters that he had performed more than 5,000 abortions - all of them safe, all of them illegal. He followed this up with a letter to prime minister Pierre Trudeau in April, explaining how many abortions he had done, how he had done them - and how he wasn't going to stop.

Police raided his Montreal clinic on Aug. 15, 1973, rounding up Dr. Morgentaler, five of his staff and 13 patients. A jury acquitted him on Nov. 13, 1973, a verdict that set the pattern for two later trials in Quebec. But that first acquittal was overturned by the Quebec Court of Appeal the following year, and Dr. Morgentaler was given 18 months, a sentence that he began serving on March 27, 1975.

Then, in June, he suffered a heart attack. He spent the rest of his term in a nursing home. He was released in January after serving about 10 months, 15 pounds lighter and looking about five years older. "He wouldn't have been sent to jail if he had been French - but he's a Jew," the prominent feminist Laura Sabia wrote in a letter on behalf of the National Council of Jewish Women to Otto Lang, then federal justice minister and to Marc Lalonde, then minister for the status of women.

Meanwhile, Dr. Mortgentaler, who owed his lawyer $200,000, had lost his licence to practise in Quebec and was battling the Quebec Revenue Department, which claimed he owed $354,799.14 in back income taxes. Dr. Morgentaler said he was being persecuted simply because he declared abortions as such on his income tax. The Revenue Department later reduced its claim.

These issues also contributed to the breakdown of his first marriage. Dr. Morgentaler, the abortionist, was not the man Chava (now Eva) Rosenfarb had married. With their two children, Goldie and Bamie, grown up, the couple drifted apart and agreed to a separation. They were divorced in 1978, and, in 1979, Dr. Morgentaler married Carmen Wernli. They have one son, Yann, born in 1981, before that relationship also ended.

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Dr. Morgentaler opened a clinic in Winnipeg on May 12, 1983. About a month later, the police raided it and charged him and seven others.

Despite his problems in Manitoba, Dr. Morgentaler went ahead with his plans to open a Toronto clinic on Harbord Street in June 15, 1983. It was raided in July by police who seized some equipment and charged Dr. Morgentaler and two colleagues, Dr. Robert Scott and Dr. Leslie Smoling, with procuring illegal miscarriages. On Nov. 8, 1984, an Ontario jury, following its Quebec predecessors, acquitted him and his two associates.

Lawyer Alan Cooper, then a Crown counsel, said later that he never expected to win the case. "I knew 90 per cent of Canada was against me," he told The Globe. "Dr. Morgentaler was like a national hero. Even devout Catholics were coming up to me during the trial and saying: 'How can you prosecute him?' Even my parents said that to me once."

Dr. Morgentaler was jubilant, but his victory was short-lived. Attorney-general Roy McMurtry announced that the verdict would be appealed, but that no new prosecutions would be initiated. However, a second charge was laid on Dec. 20, 10 days after the clinic reopened. Dr. Morgentaler described it as "legal anarchy" and, on Jan. 7, was back in business, personally performing abortions at his Toronto clinic, while anti-abortionists picketed outside.

The jury verdict was subsequently reversed by the Ontario Court of Appeal in October, 1985. The case was referred to the Supreme Court of Canada, which ruled in 1988 that the abortion law under which Dr. Morgentaler had been convicted contravened Section 7 of the Charter of Rights and Freedoms. Forcing women to endure potentially life-threatening delays violated their charter guarantee of life, liberty and security of the person.

The ruling put an end to the old system under which legal abortions could only be performed in the health system after a patient had successfully petitioned a hospital-based committee of three doctors. The Supreme Court found that this cumbersome process was arbitrary, demeaning and potentially injurious to women.

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Dr. Morgentaler had family as well as legal reasons to celebrate that year. His fourth child, Benny, was born to his new partner Arlene Leibovitch just before the Supreme Court ruling was handed down.

Changing the law didn't mean that women had equal and unfettered access to the procedure across the country, however. Having won the war, Dr. Morgentaler spent most of the next two decades fighting public opinion, restrictive provincial statutes, death threats and the bombing of his Harbord Street clinic in Toronto in May, 1992.

There was a huge fracas in 2005, when the University of Western Ontario decided to give him an honorary degree - his first. One horrified university benefactor withdrew a $2-million bequest, another sent a $10,000 cheque in support of Dr. Morgentaler, and 12,000 people signed a petition demanding the university rescind its decision.

At the ceremony that June, Dr. Morgentaler urged graduating students to work within the system to make change. "I do not advocate civil disobedience.…," he said. "It's a hard way to change laws. You can change what's not going well in Canada by political process." Later in a press conference he expanded on those statements by saying: "Canada is a wonderful country with democracy still governing the rule," he said at a news conference. "Within democratic principles, it is possible in Canada to affect change for better laws and procedures."

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