Canada debates foetal homicide

Canada is debating Bill C-484, The Unborn Victims of Crime Act, which would make it a separate crime to injure or kill an unborn child in the course of committing a crime against a woman the accused knew to be pregnant. Abortion rights activists, who are fighting to defeat the bill, have announced that in early May a protest opposing it will take place in Ottawa. They "are (also) encouraging (pro-choice) supporters across Canada to hold similar protests as a sign of nationwide solidarity against Bill C-484." They claim the bill is "all about abortion."

In view of the controversy Bill C-484 is raising, it's very important that we - in particular our politicians, who will vote on the bill - have our facts straight. It's one matter to correctly understand the bill and vote against it. It is quite another to do so on the basis of facts and arguments that are not correct.

For instance, abortion rights activists have claimed that "foetal homicide laws in the US... have done nothing to reduce violence against pregnant women," but they provide no evidence to this effect. This statement is equivalent to saying laws against murder don't prevent murder, and so why have them? Even if that were true, we need such laws because, apart from preventing certain individuals from committing murder and generally deterring murder, they have a very important additional function of creating and expressing shared values, and showing our abhorrence as a society of certain conduct.

Surely we abhor the act, in the course of committing a criminal offence, of killing or injuring an unborn child that a woman and her family want to welcome into the world, which is the situation Bill C-484 addresses.

Abortion rights activists have also claimed that foetal homicide laws in the US "have been used to arrest and prosecute pregnant women for their behaviour, and to justify restrictions on abortion." Again no evidence is provided. That is not surprising, because this claim is not correct, despite 37 states having unborn victims of violence acts. The one 1984 American case usually relied upon by the activists was not a prosecution of the pregnant woman whose foetus was murdered, but of another person for foetal homicide. The pro-choice advocates might be confusing Bill C-484-type legislation with other laws used to try to protect foetuses from intra-uterine harm, for instance, from a pregnant woman's drug addiction, as some US courts have done.

There have been protests about the use of the words "child" and "unborn child" in Bill C-484, and claims that the bill's incorporation into the Criminal Code would confer personhood on the foetus. Seeing that the Criminal Code already uses these words, it's difficult to understand why that would be the case. Moreover, under normal rules of statutory interpretation, the words added by Bill C-484 to the Code which are the same as those already in the Code, would be given the same meaning as the latter.

One of the most astonishing claims by a pro-choice activist, in opposition to Bill C-484, is "that it’s up to the pregnant woman to decide how she views her foetus, and that it’s society’s job to support her decision…It’s not the place of the law to decide legal status or worth of the foetus, because that interferes with women’s privacy and freedom of conscience." Does that mean we should fund sex selection abortions, which the vast majority of feminists oppose as degrading of women? Should a woman be allowed to sell "her" foetus as spare body parts for a baby needing a transplant, or for use in research, or to make cosmetic products?

As these examples make clear, apart from having the freedom to choose an abortion, a woman is not free to do as she likes with "her" foetus and society does have a legitimate interest in restricting, in some cases through law, what she may do.

One pro-choice activist, Joyce Arthur, wrote recently that "when a pregnant woman is safe, so is her foetus." In framing the issues that Bill C-484 is intended to address as being primarily, or even exclusively, one of the safety of pregnant women, Ms. Arthur is using a strategy adopted by pro-choice advocates to deal with one aspect of the bill that places them in a dilemma. In rejecting Bill C-484, they do not want to seem to be failing to empathise with pregnant women who are the victims of violence -- indeed they strongly empathise -- but they want to do that without in any way recognising that a major part of the harm these women and their families suffer is the injury to or loss of the unborn child. In short, they do not want any recognition of the unborn child, or its worth and meaning to its family, realities that Bill C-484, if enacted, would affirm.

This strategy is employed because the pro-choice lobby bases its case that there should be no law governing abortion on the fiction that the foetus and woman are one "person." They object to Bill C-484 because it contradicts that fiction in recognising that there are two victims of a crime, although in doing so it does not affect the present law on abortion -- indeed, for greater certainty, it expressly states that it does not do so. (As an aside, the need to rely on a fiction to justify abortion is a very weak stance ethically.)

Many pro-choice activists do not seem willing to recognise that good facts, based on sound evidence, are essential for good ethics; that we communicate those facts through carefully chosen, accurate words; and that we must ethically justify our actions through clearly articulated arguments based on those facts. These requirements all apply to the current debate about Bill C-484 and its relation to abortion and need to be fulfilled.

In contrast, as I hope I've shown, pro-choice activists' statements often bring to mind Lewis Carroll's words in Through the Looking-Glass:

"There's glory for you!"
"I don't know what you mean by 'glory,'" Alice said.
"I meant, 'there's a nice knock-down argument for you!'"
"But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.
"When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."

Margaret Somerville is director of the Centre for Medicine, Ethics and Law at McGill University, and author of The Ethical Imagination: Journeys of the Human Spirit.


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