Guest post: Because one doctor wouldn’t back down

Originally a comment by Sumi on To discourage the others.

Where are the US doctors willing to be jailed for their beliefs? Where are the doctors willing to rely on the necessity defense and jury nullification?

Canada has had no abortion laws for almost four decades because one doctor, Henry Morgentaler, wouldn’t back down when the government tried to shut his abortion clinics.

Morgentaler survived Auschwitz and Dachau before coming to Canada and completing his medical studies in Montreal. He set up illegal abortion clinics in several cities and dared the governments to act. In 1973, he admitted to performing over 5,000 abortions and was arrested and charged.

Between 1973 and 1975, Morgentaler was tried three times in Montreal; each time, he raised the defence of necessity, and each time, he was acquitted. Prosecutors appealed, the appeals court overturned the jury and ordered him jailed in 1975. He served 10 months, suffering a heart attack while in solitary.

On his release, Morgentaler set up more abortion clinics. By that time, the law had been changed and appeals courts could no longer substitute a conviction for a jury acquittal; they could only order a new trial. With all the jury nullifications, the cops were getting cold feet about further arrests.

In 1982, Canada amended its constitution to bring in the Charter of Rights and Freedoms, codifying many of the rights in the American Bill of Rights. Morgentaler challenged Canada’s abortion law under the new Charter. In 1988, the Supreme Court struck down the law as unconstitutional and told Parliament to rewrite it. The House of Commons passed a new bill by nine votes and sent it to the Senate for approval. The bill failed on a tie vote. Since then, Canada has had no criminal restrictions on abortion and it is a publicly funded medical procedure.

I don’t think Canadian juries are more prone to nullification than American ones. Even a rural Texas jury doesn’t want to jail doctors, especially when rural hospitals are closing. Necessity is a common law defense in American law too, typically applying in emergency situations where immediate action is required to avert imminent danger – such as saving the mother’s life. Where’s the doctor crazy enough to do the right thing by the mother, damn the consequences?