By Joyce Arthur, Executive Director, Abortion Rights Coalition of
Canada (ARCC-CDAC; www.arcc-cdac.ca)
March 19, 2012
Table of Contents
1. The Supreme Court has
already decided the issue
2.
Giving
personhood to fetuses invites criminal prosecution of pregnant
women for negative outcomes
3.
Abortion
cannot be criminalized without violating women’s
constitutional rights
4.
The
motion is an exercise in misogyny
5.
Woodworth
has misinterpreted Criminal Code Section 223(1)
6.
No
problem exists for the motion to solve
8.
Woodworth
commits the logical fallacy of “begging the question”
Motion M-312 is
motivated solely by anti-abortion ideology. The intent is to
bestow legal personhood on fetuses in order to re-criminalize
abortion. M-312 is a waste of time and taxpayer money because the
issues it raises have already been answered by Canada’s Supreme
Court. Further, there are zero problems with the existing law or
current medical practice that need addressing. Fetal personhood
would also seriously undermine the constitutional rights of
pregnant women under the Charter
of Rights and Freedoms, not just for those who need
abortions, but for any pregnant woman. It would invite the
prosecution of pregnant women for any perceived harm to fetuses by
creating confusion around how child welfare laws and policies
apply to fetuses as legal persons. Further, the motion itself is
unworkable because it rests on misinterpretations of the Criminal
Code, misleading use of language, and logical fallacies.
Section 223(1) of the Criminal Code of Canada[1] falls under “Homicide”
and reads: “A child becomes
a human being within the meaning of this Act when it has
completely proceeded, in a living state, from the body of its
mother, whether or not (a) it has
breathed; (b) it has an
independent circulation; or (c) the navel
string is severed.”
Conservative MP
Stephen Woodworth (Kitchener Centre) began a media campaign in
December 2011 to promote his view that the definition of “human
being” in Section 223(1) is 400 years old and should therefore be
reviewed in light of modern medical knowledge to determine if
fetuses should now be legally defined as “human beings.” His
motion to that effect, M-312,[2] was accepted on March 12
for consideration by Parliament, with one hour of debate on April
26, another hour of debate on June 8 and a vote on June 13
(subject to change). M-312 calls for the formation of a special
Parliamentary committee that would be directed to answer four
questions:
(i)
what medical evidence exists to demonstrate that a child is
or is not a human being before the moment of complete birth?,
(ii)
is the preponderance of medical evidence consistent with
the declaration in Subsection 223(1) that a child is only a human
being at the moment of complete birth?,
(iii)
what are the legal impact and consequences of Subsection
223(1) on the fundamental human rights of a child before the
moment of complete birth?,
(iv) what
are
the options available to Parliament in the exercise of its
legislative authority in accordance with the Constitution and
decisions of the Supreme Court of Canada to affirm, amend, or
replace Subsection 223(1)?
Several legal precedents have already dealt
with the questions that Woodworth’s motion raises, in particular,
Tremblay vs Daigle,[3]
Dobson v. Dobson,[4]
Winnipeg Child & Family Services v. Ms.G.(D.F.),[5] Borowski v.
Attorney General of Canada,[6]
and R. v. Morgentaler.[7]
These rulings have concluded or noted that the fetus has never
been a person or included in the meaning of "everyone” in the Charter of Rights and
Freedoms, that a fetus must be born alive to enjoy rights
(the “born alive” rule[8]),
and that the law has always treated a pregnant woman and her fetus
as one person under the law. This is because the intimate
connection between the two means the fetus cannot be considered in
isolation, and imposing a duty of care on a pregnant woman towards
her fetus would result in extensive and unacceptable intrusions
into her bodily integrity, privacy, and autonomy. (See Endnotes for relevant excerpts from the
decisions.)
Although Parliament could theoretically revisit
the issue and pass laws to restrict abortion or give rights to
fetuses, it’s highly unlikely that such laws would withstand a
constitutional challenge in the courts – both for the above
reasons and because laws that apply only to women and not men are
automatically discriminatory. Further, no government since the
Mulroney Conservative government in 1990 has dared to try and pass
a new abortion law, because it’s sure to be a losing issue for
politicians. Canada is largely a pro-choice country. Prime
Minister Stephen Harper doesn’t want to re-open the abortion
debate because he knows it would mire his government in
controversy and probably cost him the next election.
In the United States, fetuses have legal
personhood rights in at least 38 states,[9] mostly through “fetal homicide” laws
supposedly aimed at third parties who assault pregnant women. In
practice however, these laws are used primarily to justify
prosecuting pregnant women[10]
under child welfare laws for drug or alcohol abuse, refusing
a Caesarean, experiencing a stillbirth, or even attempting
suicide. These unjust and cruel prosecutions tend to scare
pregnant women away from pre-natal care or even motivate them to
have an abortion. They also turn pregnant women into lesser
citizens whose rights are subordinated to those of their fetus, as
evidenced by pregnant women in the U.S. being jailed for “crimes”
that are not crimes for anyone else.
Similar actions could happen in Canada if
fetuses had rights. Anti-choice members of law enforcement or the
judiciary could exploit child welfare laws to subject women to
criminal prosecution for harming or “murdering” their fetus when
something goes wrong in a wanted pregnancy. It could even open the
door to women being investigated after they suffer a miscarriage
or stillbirth, or any other serious complication that endangers
the fetus. As in the U.S., the women targeted would mostly be
racialized and low-income women.
Woodworth’s motion raises the same types of
issues that galvanized Canada’s women’s movement back in 2008 when
the “Unborn Victims of Crime Act” passed second reading.[11] That bill would
have treated a fetus as a separate legal person under the law when
a pregnant woman was assaulted. At the time, the U.S.-based group
National Advocates for Pregnant Women prepared a 15-page brief for
ARCC-CDAC,[12]
documenting the hundreds of unjust cases of prosecutions of
pregnant women in the U.S. (New examples can be found on their
website: www.advocatesforpregnantwomen.org.)
The organization also notes that: “Thousands more [women] have been
subjected to punitive and counterproductive child welfare
interventions that treat what women do or experience during
pregnancy as evidence of civil child neglect or abuse.”[10]
Since
the mid-1980’s, women have had established constitutional
rights in Canada under our Charter
of Rights and Freedoms, including the right to life,
liberty, bodily security, conscience, and equality. These rights
are all directly implicated in women’s decisions around pregnancy.
In contrast, fetuses do not have legal rights and cannot be given
any, since two beings occupying the same body would result in a
serious clash of rights. In fact, if fetuses had legal personhood,
pregnant women would lose theirs.
It
is senseless and cruel to restrict or ban abortion because
giving rights to fetuses or banning abortion does nothing to
“protect the unborn” or women. Every country in the world where
abortion is illegal has a well-developed abortion underground,
and abortion is generally more common in countries where it’s
illegal than where it’s legal. Almost half of all abortions in
the world (49% of 43.8 million[13]) are unsafe and mostly illegal.
About 47,000 women die every year in the developing world and
another 5 million are hospitalized.[14]
In
the U.S. where abortion is now heavily restricted, women will
travel hundreds of miles for abortion care, use their rent or
food money to pay for it, go before judges to get permission,
listen to mandated anti-abortion propaganda, walk past
aggressive and bullying protesters, and even huddle for hours in
a car in the clinic’s parking lot until the bomb threat is over.
In short, most women will do whatever it takes to get an
abortion[15],
regardless of the difficulty or risks.
Underlying the motion is a profound disrespect
and lack of trust for women, and a total dismissal of their rights
and welfare. Like the rest of the anti-abortion movement,
Woodworth shows no recognition whatsoever of the human rights of
women, or how giving rights to fetuses would harm pregnant women.
Historical and medical evidence clearly shows
the negative and often catastrophic results when the state
interferes and imposes restrictions on the reproductive rights of
women in the interests of “protecting” fetuses,[16] [17] as if women are incapable or
irresponsible. But the only person who can make conscientious and
informed decisions on behalf of an embryo or fetus is the pregnant
woman herself. The state’s only role should be to ensure that
women have the resources and supports they need to achieve the
best pregnancy outcomes – which may sometimes include having an
abortion. We can trust women to know what is best for their
families and themselves, which means there’s no need to re-open
the abortion debate in Canada.
Further, the motion perpetuates the patriarchal
need to control women and reproduction by seeking to relegate
women to a childbearing role. The vision of the anti-abortion
movement is to ban both birth control and abortion and force women
into repeated unwanted childbearing, with no regard for the
substantial health and social problems this would pose to women,
children, and society at large. The patriarchal purpose behind
this vision is to keep women busy with a brood of children so they
will have no time to gain influence in the political arena,
leaving power securely in the hands of men. Pro-natalism is also
strongly tied to militarism, as war-mongering countries need to
produce plenty of cannon fodder. These patriarchal considerations
mean that women’s needs and rights are immaterial or even "wrong,"
which may explain why Woodworth and his ilk have no respect for
them.
One of Woodworth’s main claims is that the
definition of human being in Criminal Code Section 223(1) is
derived from 400-year old English common law.[18] He explains that in 1642, Sir Edward
Coke wrote in his The Third
Part of the Institute of the Laws of England that “children before birth were
not considered human beings until they were born alive.”
However, Section 223(1) was not a blind
incorporation of Coke’s statement (which was part of a commentary,
not a law). The Criminal Code definition of human life was enacted
in 1892 and placed under the Homicide section, apparently to
clarify the difference between abortion and infanticide.[19] Canada
had enacted restrictive abortion laws in 1869 based on an 1803
statute of England, and Section 223 was added later to make a
strategic distinction about when a fetus becomes a child in order
to clarify these laws. Woodworth’s notion of an unjustly outdated
definition of human life rests on misleading statements about the
foundations of Canadian law.[20] Regardless, this 400-year old definition
of “human being” has stood the test of time. It accords very well
with our modern human rights framework in which women have
equality under the law.
Woodworth also claims that the Criminal Code
does not protect fetuses in the process of being born. But Section
223(2) goes on to say that “a
person commits homicide when he causes injury to a child before
or during its birth as a result of which the child dies after
becoming a human being.” It appears that this section
already accomplishes Woodworth’s goal, especially considering that
a child being born does not have to be breathing or have an
independent circulation to be defined as a human being under
Section 223(1).[21]
There are zero problems with the existing
Criminal Code law or current medical practice that need
addressing. Women make abortion decisions responsibly and doctors
handle abortion care responsibly. About 90% of abortions take
place in the first trimester. Despite some underreporting,
Canada's abortion rate appears to be in decline since about 1997,
and is low or moderate compared to most other countries.[21a] After almost 25
years without any abortion law, Canada has amply proven that none
is needed.
Woodworth appears to be fixated on the lack of
legal rights for 9-month fetuses about to be born, in hopes of
eventually securing restrictions against later abortions at least.
As a fervent anti-choice activist, Woodworth no doubt believes the
commonly-repeated (but still false) propaganda that women in
Canada can easily obtain abortions for any reason right up to the
moment of birth. But abortions after 20 weeks are rare in Canada –
virtually all are confined to cases of fetal abnormality where the
fetus cannot survive after birth.[22] Doctors abide by a Canadian Medical
Association policy[23] that recommends
abortion on request only up to 20 weeks gestation and after that
only under “exceptional circumstances.” All medical treatment is
governed by policy, medical protocols, and doctor discretion – not
civil or criminal law – and abortion should not be any different.
If late-term abortions were restricted by law,
it would penalize women in the most tragic circumstances by making
it difficult or impossible for them to obtain desperately needed
abortions. Regardless, Woodworth tries to scare Canadians with his
farcical description of fetuses needing protection from abortion
while one “little toe” still remains in the birth canal during
delivery.
Woodworth’s motion and his entire campaign is
based on a fundamental confusion between the medical and
biological aspects of “what is a human being” and the legal and
social aspects of personhood. Fetuses
are biologically “human” in the sense that they are composed of
human tissue and DNA, but they are not “persons” in a legal or
social context. A fetus has no individual existence because it
lives inside of a woman’s body and depends completely on her
(and no-one else) for its survival. It does not possess key
aspects of personhood, such as the ability to experience human
emotions, interact with others, or exercise constitutional
rights. Personhood is a socially and legally constructed
concept, and it is bestowed upon birth for very practical and
obvious reasons. As the Supreme Court stated in the
Tremblay v. Daigle decision:[24] “The task of properly
classifying a foetus in law and in science are different
pursuits.”
Regardless
of the biological or medical status of the fetus, women
need and have abortions anyway, in order to protect their own
lives and health and that of their families. Women do not decide
to have an abortion because they think the fetus is a “clump of
tissue” or even because it’s their “right to choose.” They have
abortions because they’re not ready to support a child right now
or because they don’t want to have a baby. They have abortions
because their partner is abusive or because they’re living in
poverty. And they seek abortions regardless of legal restrictions
or other barriers. Pregnant women know very well what is growing
inside them, which is why they try to abort an unwanted pregnancy
as early as possible, to stop the development of a baby they feel
unable to care for. Such decisions are responsible and well
thought out, and have nothing to do with a disregard for fetal
life – on the contrary, they demonstrate respect for a child’s
right to be wanted and well provided for.
The major fallacy of the anti-abortion view is
the unquestioned assumption that fetuses are "human beings" and
therefore deserve rights, even though that is the very question at
issue – but one on which there can be no consensus. Woodworth
makes the same mistake as the rest of the anti-abortion movement,
apparently completely unaware of the absurdity of what he is
saying. For example, he has stated repeatedly in the media: “Don’t
accept any law that says some human beings are not human beings!”
(Do a Google search.) In the words of journalist Heather Mallick,
this is “a perfect display
of the much-misunderstood logical fallacy of ‘begging the
question.’ He is answering the question with the original
question, except for him it is not a question. It is a fact.
When a fetus can breathe on its own, it is not just a human
being, it is in Woodworth’s terms positively elderly.”[25]
Whether a fetus is a “human being” in a moral
or philosophical sense is necessarily a subjective call and a
matter of opinion – one that only a pregnant woman has the
prerogative to decide. As discussed in #7 above, fetuses are
certainly not legal persons in any case. Even if they were
declared to be "human beings" in the biological and medical sense,
this would not change the practical necessity of giving them legal
personhood only at birth.
Woodworth also continually uses the word
“child” to describe a fetus, which is just another “begging the
question” ploy to try and lead people to equate fetuses with
children and therefore accept that they should have rights. Fetus
is the correct medical term and it means “the unborn young from the end
of the eighth week after conception to the moment of birth.”
The term “child” means “a
person of either sex between the time of birth and adolescence.”
Although “child” is often used informally to refer to fetuses,
this is a colloquial usage that has no legitimate place in modern
law or medicine – including in Woodworth’s motion.
Woodworth’s motion is a patriarchal waste of
time and money, and his concern for fetuses at the expense of the
rights and safety of pregnant women is dangerous. He has said: “Just laws must be based on
accurate evidence, not arbitrary lines unrelated to reality. If
there’s no objective criteria for who’s a human being, then
personhood and the fundamental rights that go with it can be
defined in any way any powerful person or group decides.”[26] Woodworth
pretends that having personhood start at birth is an “arbitrary
line” without “objective criteria”, as if the biological fact that
a fetus depends totally on a woman’s body while a newborn does
not, is somehow insignificant or even imaginary. This is deeply
insulting and disrespectful to women and their childbearing
capacity. Ironically, it is Woodworth in his role as an elected
Member of Parliament who is the “powerful person” trying to
arbitrarily and subjectively define a fetus in a way that would
undermine or negate the legal personhood of an already-vulnerable
class of people – pregnant women. That is why we have nicknamed
his motion "The Handmaid's Tale."
1. Criminal Code of Canada. www.laws-lois.justice.gc.ca/eng/acts/C-46/page-108.html#h-77.
2.
Woodworth, Stephen. Motion 312. http://www.stephenwoodworth.ca/canadas-400-year-old-definition-of-human-being/motion-312
3. Tremblay
v. Daigle. 1989. 2 S.C.R. 530 at 567. At: http://scc.lexum.org/en/1989/1989scr2-530/1989scr2-530.html.
The court concluded “that the articles of the [Quebec] Civil Code
… do not generally recognize that a foetus is a juridical
person. A foetus is treated as a person only where
it is necessary to do so in order to protect its interests
after it is born.” Also: “…the
term ‘human being’ in art. 18 [of the Civil Code] was not
meant to include fetuses” – a conclusion “supported by a number
of academic commentators.” And: “…Anglo-Canadian courts
… have consistently reached the conclusion that to enjoy
rights, a foetus must be born alive.”
4.
Dobson (Litigation Guardian of) v.
Dobson. 1999. 2 SCR 753. At: http://scc.lexum.org/en/1999/1999scr2-753/1999scr2-753.html. “Canadian courts have
recognized the juridical personality of the foetus as a
fiction which is utilized, at least in certain contexts,
to protect future interests.” And: “A pregnant woman and
her foetus are physically one, in the sense that she
carries her foetus within herself. Virtually every
aspect of her behaviour could foreseeably affect her
foetus. … The physical unity of pregnant woman and foetus
means that the imposition of a duty of care would amount
to a profound compromise of her privacy and autonomy.”
And: “The Court
should not impose a duty of care upon a pregnant woman
towards her foetus or subsequently born child. To do so
would result in very extensive and unacceptable intrusions
into the bodily integrity, privacy and autonomy rights of
women.”
5. Winnipeg
Child and Family Services (Northwest Area) v. G. (D.F.).
1997. 3 S.C.R. 925. At: http://csc.lexum.org/en/1997/1997scr3-925/1997scr3-925.html. “Before birth the mother
and unborn child are one in the sense that ‘the life of the
foetus is intimately connected with, and cannot be regarded
in isolation from, the life of the pregnant woman.’ It is
only after birth that the fetus assumes a separate
personality. Accordingly, the law has always treated the
mother and unborn child as one.”
6.
Dunsmuir, Mollie. 1998. Abortion: Constitutional
and Legal Developments. www.publications.gc.ca/Collection-R/LoPBdP/CIR/8910-e.htm.
Borowski v. Attorney
General of Canada: The Saskatchewan Court of Appeal had
reviewed the language of the Charter and the history of the
fetus at common law, and concluded that the fetus had never
been a person or included in the meaning of "everyone” in the
Charter. (The Supreme Court declared the case moot because of
the Morgentaler decision.)
7. Regina
v. Morgentaler. 1988. 1 SCR 30. At: http://csc.lexum.org/en/1988/1988scr1-30/1988scr1-30.pdf.
R. v. Morgentaler: “The objective of
protecting the foetus would not justify the severity of the
breach of pregnant women's right to security of the person.”
Also, Justice Wilson said that the state cannot treat a woman
as a “means to an end”
by letting others decide “whether her body is to be
used to nurture a new life.”
8. Under
the common law “born alive” rule (http://en.wikipedia.org/wiki/Born_alive_rule), rights can be vested in the potential that is
the fetus, but the rights materialize only upon birth. The
pregnant woman continues to be one legal entity until the live
birth of her child. The “born alive” rule, as well as the
unity of a pregnant woman and her fetus, are well-established
legal principles in Canadian jurisprudence.
9.
National Conference of State Legislatures. 2010. Fetal Homicide Laws. http://www.ncsl.org/issues-research/health/fetal-homicide-state-laws.aspx
10. National
Advocates
for Pregnant Women. N.d. Punishment
of
Pregnant Women. http://www.advocatesforpregnantwomen.org/issues/punishment_of_pregnant_women/
11. Abortion
Rights Coalition of Canada. 2008. Talking Points Against the
“Unborn Victims of Crime Act”. www.arcc-cdac.ca/action/unborn-victims-act.htm
12. National
Advocates for Pregnant Women. 2008. Lessons from the U.S.
Experience with Unborn Victims of Violence Laws. www.arcc-cdac.ca/action/LessonsfromUS.pdf
13. Sedgh, Gilda,
et al. 2012. Induced abortion: incidence and trends
worldwide from 1995 to 2008. The Lancet, Vol
379, Issue 9816, pp 625-632. http://www.thelancet.com/journals/lancet/article/PIIS0140-6736%2811%2961786-8/fulltext?_eventId=login
14.
Guttmacher Institute. February 2011. Facts on Induced
Abortion Worldwide. http://www.guttmacher.org/pubs/fb_IAW.html
15. Whole Woman’s
Health. 2012. Official
Press Release Regarding the Texas Sonogram Bill. http://wholewomanshealth.wordpress.com/2012/01/13/whole-womans-health-official-press-release-regarding-the-texas-sonogram-bill/
16. Cohen,
Susan A. Cohen. 2009. Facts and Consequences: Legality,
Incidence and Safety of Abortion Worldwide. Guttmacher Policy
Review. Vol 12, No 4. www.guttmacher.org/pubs/gpr/12/4/gpr120402.html
17.
Arthur, Joyce. 2009. The Case for Repealing Anti-Abortion Laws. www.arcc-cdac.ca/press/repeal.pdf
18.
Woodworth, Stephen. February 6, 2012 Press Conference Remarks. www.stephenwoodworth.ca/canadas-400-year-old-definition-of-human-being/february-6-2012-press-conference-remarks
19.
Backhouse, Constance. 1983. Involuntary Motherhood:
Abortion, Birth Control and the Law in Nineteenth Century
Canada. Windsor Yearbook of Access to Justice 3 (1983), pp
61-130, at 112.
20. Johnson,
Natalie. 2012. Obstacles
to Justice: A Response to an Attempt to Reopen the Abortion
Debate. (An unpublished paper for Property Law 181,
Queen’s Law, Queen’s University, Kingston Ontario. n.johnson [at]
queensu.ca)
21.
Cawthorne, Jane. March 17, 2012. A letter against
Woodworth's anti-choice motion. www.abortionmonologues.blogspot.ca/2012/03/letter-against-woodworths-anti-choice.html.
(Note: The Supreme
Court has interpreted the term “before or during its birth”
to mean immediately before being born alive: R v. Sullivan and LeMay,
1991, 1 SCR 489. http://scc.lexum.org/en/1991/1991scr1-489/1991scr1-489.html)
21a.
Canadian Institute for Health Information. Induced Abortions Performed in
Canada in 2010. www.cihi.ca/CIHI-ext-portal/pdf/internet/TA_10_ALLDATATABLES20120417_EN
Notes: As of this writing, Quebec has still not reported their
numbers. Contrary to the note in the CIHI tables, BC data does not appear to be incomplete
- all BC clinics report to CIHI as far as is known, and abortion
rates have been declining in BC. Unfortunately, Ontario abortion
data has been under-reported by an estimated 10-20,000 abortions
a year for roughly the last decade because CIHI does not capture
abortions done in doctors' offices or clinics not funded by
OHIP. (This problem stems from CIHI policy and provincial
government politics, not abortion providers.)
22.
Arthur, Joyce. 2008. Canada Does Not Need an Abortion Law. www.arcc-cdac.ca/action/dont-need-abortion-law.html
23.
Canadian Medical Association. 1988. Policy: Induced Abortion. http://policybase.cma.ca/dbtw-wpd/PolicyPDF/PD88-06.pdf.
24. Tremblay v.
Daigle. 1989. 2 S.C.R. 530 at 567. At: http://scc.lexum.org/en/1989/1989scr2-530/1989scr2-530.html.
25. Mallick,
Heather. Feb. 7, 2012. Tory MP Stephen Woodworth wants
quick ruling on human rights for fetuses. Toronto Star. www.thestar.com/opinion/editorialopinion/article/1127747--tory-mp-stephen-woodworth-wants-quick-ruling-on-human-rights-for-fetuses.
26. Wherry, Aaron. Feb 6, 2012. ‘Don’t accept any law that says some human beings are not human beings.’ McLean's Magazine. www2.macleans.ca/2012/02/06/dont-accept-any-law-that-says-some-human-beings-are-not-human-beings/