Pro-Choice vs. Pro-Life: Abortion and the Courts in Canada

By Cuneo, Michael W. | The Catholic Historical Review, October 1996 | Go to article overview

Pro-Choice vs. Pro-Life: Abortion and the Courts in Canada


Cuneo, Michael W., The Catholic Historical Review


Pro-Choice vs. Pro-Life: Abortion and the Courts in Canada. By F. L. Morton. (Norman: University of Oklahoma Press. 1992. Pp. 371. $19.95 paperback.)

This highly readable book is largely an examination of the cross-dueling political careers of two controversial Canadians. Throughout the 1970's and '80's Henry Morgentaler was Canada's leading apostle of abortion freedom, and Joseph Borowski the nation's remost proponent of fetal rights. Jewish, agnostic, and fearless, Morgentaler first burst upon the national scene in the early 1970's when he defied Canada's newly reformed abortion law by opening several elective abortion clinics in the Montreal area. Enacted by the House of Commons in 1969, the new law authorized that abortions could be performed for broadly therapeutic reasons in acapidated hospitals after approval by a therapeutic abortion committee. While generally permissive in its application, the 1969 law by no means provided all Canadian women equal and unencumbered access to abortion, and Morgentaler was determined to do everything possible to force its repeal.

Borowski, a working-class Catholic and long-time labor activist, was just as passionately opposed to the 1969 legislation but for quite different reasons. In his view, the law was entirely too lenient: it afforded little more than nominal protection for fetal life, and it was a glaring affront to the religious convictions of millions of Canadians. Borowski registered his opposition by undergoing a lengthy hunger strike; he withheld his federal income taxes as protest against the public funding of abortions, and, as was also the case with Morgentaler, he paid the price of his convictions with several stints in prison.

In the end, the battle between Morgentaler and Borowski over abortion was played out on virgin constitutional territory. On April 16, 1982, a new Charter of Rights and Freedoms was adopted by Parliament as part of Canada's Constitution Act. Although the charter was silent on the question of fetal tights, Borowski believed that it still provided ammunition for an assault upon Canada's abortion law, can in 1983 he attempted to persuade a Saskatchewan court that the 1969 law, with its provisions for legal abortion, was at odds with the charter's declaration that everyone has the right to life." Although a parade of scientific witnesses--including Sir William Liley and Jerome Lejeune--testified on Borowski's behalf, the court finally rejected his charter challenge and upheld the validity of the 1969 law.

Several years later, Morgentaler brought his own charter challenge before the Supreme Court of Canada--and with strikingly different results. …

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