Talking Points
Against
the
“Unborn Victims of Crime Act”
By the Abortion Rights
Coalition
of Canada
(www.arcc-cdac.ca)
Updated May 6,
2008
A private
member's bill called The "Unborn Victims of Crime Act" (C-484),
introduced by Conservative MP Ken Epp (Edmonton Sherwood Park) last
fall, passed Second Reading in Parliament on March 5. It will now go to the
Standing Committee on Justice and Human Rights for review (http://cmte.parl.gc.ca/cmte/CommitteeList.aspx?Lang=1&PARLSES=392&JNT=0&SELID=e18_&COM=13192).
The text of
the bill is
here:
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3127600&file=4.
The bill would amend the Criminal Code to allow separate homicide
charges to be
laid in the death of a fetus when a pregnant woman is attacked.
If
passed, this bill would be an unconstitutional infringement on women’s
rights,
and would likely result in harms against pregnant women. It is a key
step
towards re-criminalizing abortion, but it could also criminalize
pregnant women
for behaviours perceived to harm their fetuses.
Here
are 14 talking points that can be used to argue against the bill:
1.
Fetal
personhood conflicts with
the Criminal Code:
The bill grants a type of legal personhood to fetuses. This conflicts
with the
existing Criminal Code provision that fetuses are not "human beings"
until
they exit
from the birth canal alive. (Section 223[1]). Further, the bill tries
to amend
Part VIII of the Criminal Code, “Offences Against the Person and
Reputation”;
however, the fetus is not a legal person and cannot rightly fall under
this
section. Despite this, the bill
tries to explicitly override the Code's definition of
"human being" by disallowing the defence that a
"child" is not a human being.
2.
We
need to address domestic
violence against pregnant women: The bill takes the
focus away from the real
issue—domestic violence against pregnant women. When media coverage
focuses on
the victim’s fetus, the pregnant woman is forgotten. Homicide is
the
second-leading cause of injury-related death for pregnant women and new
mothers (in the U.S.), and violence
against
women increases during pregnancy. What we need instead of this bill are
better
measures to reduce violence against pregnant women. (http://www.medicalnewstoday.com/articles/20316.php)
3.
The
bill does not protect women,
only fetuses: The
bill does not make it a crime to attack pregnant women, and applies
narrowly
only to the fetuses of pregnant women. Further, Mr. Epp’s stated intent
of the
bill is to protect only wanted
fetuses. (He said: “This is all about protecting the choice of a woman
to give
birth to her child.” (http://kenepp.com/newsroom/insidepage.asp?ID=69)
However, women who have recently given birth, or have had abortions or
are
planning to have abortions, are also at increased risk of domestic
violence.
This bill completely fails them. By far the best way to protect fetuses
is to
protect pregnant women, their sole caretakers. We need to give pregnant
women
the supports and resources they need for good pregnancy outcomes,
including
protection from domestic violence.
4.
The
law has no rational or
evidential basis. This
is a "feel-good" bill designed to satisfy emotional needs, and the
wish for punishment and vengeance. There is no evidence the bill will
have any
deterrent or beneficial effect. “Fetal homicide” laws in the U.S. have
done
nothing to reduce domestic violence against pregnant women or fetuses (http://advocatesforpregnantwomen.org/whats_new/sc_womens_health_coalition_members_speak_the_truth_about_scs.php).
Further, the bill wrongly capitalizes on the grief of families to push
a fetal
rights agenda.
5.
The
bill will be used to give
fetuses personhood and criminalize abortion: Regardless of the
narrowly stated intent of the bill, the real effect of the bill will
not be to protect women, but to give fetuses legal personhood,
as a wedge to
re-criminalize
abortion. The bill was introduced and promoted by anti-abortion groups
and
individuals (e.g., Campaign Life Coalition, Conservative anti-abortion
MP's,
Margaret Somerville, and others). Also, it uses anti-choice language
throughout,
including
"unborn child", "child" and "mother." The term "unborn child" appears only once in the
current Criminal Code, in the context of someone killing a fetus in the act of birth, which is a
very far cry from giving personhood to embryos. The language of Bill
C-484 is unprecedented, because it uses the term "unborn child" to
refer to very early pregnancies, when a woman first suspects she might
be pregnant. The bill is
modeled after similar bills promoted and passed in the U.S.
by
anti-abortion groups and legislators. In South
Carolina,
anti-abortion lawmakers explicitly stated they wanted to use the
state’s fetal
homicide law as a legal foundation to overturn Roe v. Wade (the
decision that
legalized abortion in the U.S.).
(http://advocatesforpregnantwomen.org/whats_new/sc_womens_health_coalition_members_speak_the_truth_about_scs.php)
6.
The
bill conflicts with women's
guaranteed rights and equality under our Charter
of Rights and Freedoms. The
Supreme Court has ruled that a woman and her fetus are considered
"physically one” person under the law (Dobson vs. Dobson, http://scc.lexum.umontreal.ca/en/1999/1999rcs2-753/1999rcs2-753.html),
and that rights accrue to the pregnant woman. It would be
extremely
difficult to give fetuses any legal recognition without compromising
women’s
established rights in some way.
7.
Legally
separating a woman from
her fetus causes harm: Creating a legal
separation of a pregnant woman and her fetus can
result in a harmful, adversarial relationship between them. When their
interests conflict, one or both can be endangered. For example, if
pregnant
women are threatened with arrest for abusing drugs, they are less
likely to
seek pre-natal care. (http://advocatesforpregnantwomen.org/issues/punishment_of_pregnant_women/prosecuting_mothers_wont_protect_our_children.php)
8.
The
bill creates an inherent
contradiction and confusion in the law, by pitting fetal
rights against women's rights, and
creating a conflict with abortion rights. If a fetus is a legal entity
with the
right not to be killed, how then can abortion be exempt, and why should
a
pregnant woman's potentially harmful behaviours be exempt? The law
opens the
door to pregnant women being targeted for their behaviours or for
self-abortions, as has happened in some U.S. states.
9.
Pregnant
women have been arrested
under U.S. fetal
homicide
laws:
In the United States,
37 states have enacted fetal protection laws or so-called “fetal
homicide” laws, which make it a
crime
to cause harm to a fetus. (http://www.stateline.org/live/details/story?contentId=135873) But
under these laws, it’s been shown that
pregnant women are more likely to be punished for behaviours and
conditions
that are not criminalized for other people, such as drug or alcohol
abuse and
mental illness. (http://www.advocatesforpregnantwomen.org/issues/unborn_victims_of_violence_act/) Women
have also been charged or jailed for
murder for experiencing a stillbirth after refusing a caesarean
section, or
just from suffering a stillbirth. Some states have proposed punishing
pregnant
women in abusive relationships who are unable to leave their batterers.
The
worst offender is South
Carolina,
where nearly 100 pregnant women with drug abuse problems have
been
arrested under its fetal homicide law, even though they had virtually
no access
to drug treatment programs. Meanwhile, only one man has been arrested
for
killing a pregnant woman under the South Carolina law. (http://www.advocatesforpregnantwomen.org/issues/punishment_of_pregnant_women/south_carolina_leading_the_nation_in_the_prosecution_punishment.php)
10.
The
bill’s exemptions for pregnant
women may not work:
Epp’s bill specifically exempts pregnant women from prosecution, as
well as
abortion. However, in the U.S., arrests of pregnant women have occurred
even under state fetal homicide
laws
that make exemptions for the pregnant woman. For example, pregnant
women with drug abuse problems have
been arrested and prosecuted for "murdering" or "assaulting" their
fetuses in
Pennsylvania, Texas, Missouri, and California
under
"fetal homicide” or fetal protection laws that exempt pregnant women
from criminal liability. http://www.tompaine.com/Archive/scontent/10189.html)
Finally, even if Bill
C-484 itself is not used against abortion or pregnant women, any other
law in Canada could be interpreted to include fetuses as persons, using
the bill as authority. This commonly happens in the U.S., where the
fetal homicide law is cited as the authority for arresting pregnant
women under child endangerment laws or laws prohibiting drug delivery
to minors.
Women in the U.S. have
been and continue to be the primary target of "fetal homicide" laws, because these laws
dehumanize pregnant women by elevating fetal rights over women's
rights. This encourages law enforcement and prosecutors to take
harsh punitive action against pregnant women for perceived misconduct
or illegal activities. Epp's bill endangers
women's rights in a similar way, by setting up a legal
conflict between the personhood of women and fetuses.
11.
People
who help women abort
could be prosecuted.
Because the exemption
is only for "lawful" terminations, the bill could allow prosecution of
abortion in other ways. If a woman tries to
self-abort illegally, anyone who helps her (such as a boyfriend) can be
prosecuted. Further, if an abortion provider does anything wrong in
relation to an abortion procedure, even a minor administrative infraction,
the procedure might not be deemed "lawful" and the provider could be prosecuted. In
2005, Texas
teenager Gerardo
Flores (http://www.siecusdc.net/policy/PUpdates/pdate0186.html)
was found guilty on two counts of murder and sentenced to life in
prison for
helping his girlfriend end her five-month pregnancy of twins. At the
time,
anti-abortion legislators lamented that Texas’
law would not allow prosecution of his girlfriend, too. The desperate
couple
had decided to self-induce an abortion because they couldn’t get one
legally – Texas
had recently
banned abortions after 16 weeks.
12. Polls do
not reflect justice or informed opinion: A recent
poll in Canada
(http://www.ccrl.ca/index.php?id=4889),
commissioned by anti-abortion group LifeCanada, found that 72% of
respondents
support legislation that would make it a separate crime to
injure or kill a fetus during an attack
on a pregnant woman. However, most people don’t realize there’s a
hidden agenda
against abortion behind the promotion of these laws, or that it could
end up
hurting pregnant women. The public would probably be much less willing
to
support a “fetal homicide” law if they understood its real effects.
13.
Victim’s
families should not determine
legal remedies:
Some of the victims' families have called for a "fetal homicide" law.
While we deeply sympathize with them and understand their wish, it must
be
recognized that victims of violence are not those who should be making
decisions about justice in a democratic society. Appropriate laws and
penalties
must be determined by impartial parties who do not allow emotion or
personal
bias to colour their decisions. This is done to fairly protect
everyone's
democratic rights, such as the rights of the accused.
14.
We
can impose harsher penalties
for attacks on pregnant women: Double homicide
convictions result in concurrent sentences in Canada, so this bill will
not mete out any greater punishment for perpetrators, making it rather
pointless. Measures to achieve better justice in
these tragic cases already exist. Prosecutors
can recommend more serious charges, such as first degree murder or
aggravated
assault. Judges may impose harsher penalties, and parole boards may
deny parole
to convicted perpetrators. We could even pass a law mandating greater
penalties
for attacks on pregnant women, as has been done in 13 U.S.
states (http://www.stateline.org/live/details/story?contentId=135873).
Alternatively, harsher penalties are already mandated under the
Criminal Code's hate crime law, which would cover attacks against women
because they are
pregnant.
Any of these measures would
provide justice, while avoiding the abortion
controversy and
protecting the rights of all pregnant women.
Send a letter opposing
the bill to your MP.
Here’s a sample letter: http://www.arcc-cdac.ca/action/unborn-victims-sample-letter.htm
Sign our online
petition
opposing the bill:
http://www.gopetition.com/petitions/oppose-bill-c-484.html
This Talking Points document is on the
Internet at http://www.arcc-cdac.ca/action/unborn-victims-act.htm