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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