March 3, 2011

Canada needs a brave doctor who will challenge our antiquated laws that prevent the terminally ill from dying with dignity. Someone like Dr. Henry Morgentaler who made personal sacrifices to bring freedom to women to choose abortions. It's not going to be easy but that courageous doctor will have public opinion on their side. The struggle will be to tear down existing laws that wrongly prohibit assisted suicides.

That brave doctor will have one advantage that Dr. Morgentaler originally didn't have: Canada's Constitution. When Dr. Morgentaler started, the Charter of Rights and Freedom hadn't been written yet. But he did have determination which was honed in the concentration camps of Auschwitz and Dachau. In 1950, when he was only twenty-six, the young Jewish doctor started a modest family practice in Montreal because he wanted to serve the people who needed him most.

However, that didn't mean his zeal for justice was to be buried in a comfortable practice. Wayne Sumner, in his article for Walrus magazine, describes Morgentaler as having an "almost seething energy and passion for social justice." Morgentaler was in good company when joined the Humanist Fellowship of Montreal, a group that shared his commitment to rational inquiry and for religious dogma. It was there that met fellow humanist Pierre Elliott Trudeau. Decades later, their mutual goals would link in the Charter.

Although Morgentaler was vocal about his support of women's rights, he was not ready to risk his medical licence by disobeying the law. That changed as he learned of backstreet mutilations of pregnant women and then he realized that civil disobedience was the only choice. He never advertised the fact that he would provide safe abortions but word spread. He was arrested a number times and his compassion eventually led to a trial.

In a Montreal courtroom packed with pro-choice advocates, Morgentaler's lawyer argued the "defence of necessity." As a doctor, he had a duty to safeguard the life and health of the women who came to him for abortions, which outweighed his duty to obey the law. In other words, his duty to protect trumped the law. Given public support for the right to choose, the jury returned an acquittal in spite of the law.

 

This wasn't the end of the arrests. Between 1973 and 1975, he was tried three times and each time the outcome was the same: no jury would convict him even though he was legally wrong. It was a classic case of jury nullification where prosecutors couldn't convince jurors of wrongdoing regardless of the law. That didn't stop them from trying.

Meanwhile, Morgentaler's humanist colleague, Trudeau, had become prime minister and brought the Charter of Rights and Freedoms into law. When Morgentaler was charged next time, the new defence was based on the new charter rights: the right to life, liberty, and security of the person. The Supreme Court agreed that the old law was unconstitutional and in 1988, the anti-abortion law was struck down for good.

The struggle is not over. Canada's laws still prevent terminally-ill people from dying with dignity at a time and place of their choosing. Eighteen years ago the obsolete suicide law was almost overturned when Sue Rodriquez pushed her case all the way to the Supreme Court of Canada. She had been diagnosed in her early forties with amyotrophic lateral sclerosis; a progressive, degenerative condition that is invariably fatal. Rather than waiting to die a slow painful death, unable to speak, swallow, or even breathe on her own, she wanted to choose the time and manner of her death but needed help. Instead of going directly to a physician for assistance, she decided to challenge the law; arguing that it violated her right to life, liberty, and security of the person under the Charter of Rights and Freedoms. The court ruled against her by a narrow majority of 5-4.

It's going to take another heroic patient and another gutsy doctor to force an arrest and trial where no jury will convict. It won't be easy. The Supreme Court will not quickly reverse its earlier decision in the Rodriquez case. As in the right to choose abortion, the right to die will be determined by ordinary citizens who sit on juries and plainly understand justice over obsolete laws and led by doctors willing to engage in civil disobedience.


David Charbonneau is the owner of Trio Technical.
He can be reached at dcharbonneau13@shaw.ca