Counter Arguments Against Motion M-312: “The Handmaid’s Tale”

By Joyce Arthur, Executive Director, Abortion Rights Coalition of Canada (ARCC-CDAC; www.arcc-cdac.ca)

March 19, 2012

The Supreme Court has already decided the issue
Giving personhood to fetuses invites criminal prosecution of pregnant women for negative outcomes
Abortion cannot be criminalized without violating women’s constitutional rights
The motion is an exercise in misogyny
Woodworth has misinterpreted Criminal Code Section 223(1)
No problem exists for the motion to solve
Woodworth misuses language
Woodworth commits the logical fallacy of “begging the question”

Summary

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.

Background

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)?

1. The Supreme Court has already decided the issue

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.

2. Giving personhood to fetuses invites criminal prosecution of pregnant women for negative outcomes

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]

3. Abortion cannot be criminalized without violating women’s constitutional rights

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.

4. The motion is an exercise in misogyny

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.

5. Woodworth has misinterpreted Criminal Code Section 223(1)

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]

6. No problem exists for the motion to solve

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.

7. Woodworth misuses language

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.

8. Woodworth commits the logical fallacy of “begging the question”

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.

Conclusion

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.”

Endnotes

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