Canada's Ridiculous New Abortion Debate

This post is an official social policy paper of the Church of the Orange Sky and does not necessarily reflect the opinions of the Mad Reverends.

I need to preface this post by stating that I am male. Normally this would be irrelevant, but on the subject of women's reproductive rights, there's a long history of men telling women what can and can't be done with and inside their bodies. As I will note closer to the end, there's a real problem in doing this with regard to problems that apply only to women's bodies. I'm trying to be as empathetic as possible, but under the circumstances there are obvious limits.

So then:

Continuing our ongoing series on the social consequences of unwanted orgasms, we come to the problem of the mildly ridiculous debate which has sprung up in Canada over the last few months around private Bill C-484, introduced by federal Conservative MP Ken Epp back in December and recently passed through Second Reading by a cowed and useless minority Parliament. I was invited to a protest of the bill last weekend here in Ottawa and chose not to attend.

On the bright side for those who oppose the Bill, it's now been passed to the Justice committee for a detailed review, which means the bill is effectively dead. That's because the Conservatives recently shut down all Parliamentary committee work on the grounds that committees with opposition MPs on them are excessively democratic and can't be trusted not to ask inappropriate questions about the Conservative Party's recently exposed elections-related money-laundering scheme, which was intended not only to defraud the Canadian public but to subvert the fundamental laws of our political order, which guarantee free and fair elections.

But let's put that to one side and move back to C-484. As I was saying, the Justice committee isn't doing any work at all, which means it may not get around to working on the Epp bill before the end of the current session.

The bill looks innocuous enough on first glance that you'd think it wouldn't warrant the explosion of support and criticism in the blogsphere which has occurred since it was first introduced a few months ago. The "Unborn Victims of Crime Act" would make it a crime to "cause the death of a child... while committing... an offence against the mother of the child" - i.e., in the strongest case, if you kill a pregnant woman and her fetus dies as well, you are guilty of killing two people. The bill makes specific exemptions for "lawful termination of the pregnancy," i.e. abortion, and "any act or omission by the mother" herself. It also includes what I've taken to calling the "wife-beating exception," which lets an accused person demand that charges against him be reduced if he committed the act "in the heat of passion."

The religious right has never wielded the same influence in Canada, but abortion has always been a problem for them, particularly because - unlike the U.S. - Canada presently has no laws regulating abortion at all. This is a fortunate consequence of our Charter of Rights and Freedoms, which unfortunately has become somewhat unpopular in recent years as the Liberals and Conservatives push through new and blatantly unconstitutional laws - like indefinite imprisonment without charge, for example, which apparently is helping us fight terrorism. So naturally any new conservative law relating to fetuses is going to be greeted with great suspicion by pro-choice groups. What's particularly interesting or indeed ironic in this case, however, is that virtually all the religious right groups claim to have come down on the side of preventing what they say is "violence against women" in this case, and virtually all the feminist and pro-choice groups haven't. (Of course, this isn't really about "violence against women" at all, but I'll get to that later.)

In this rather lengthy post, I'm going to look at the history of abortion in Canada, the rather dubious positions both of Epp and his detractors, and then the radical new proposals of the Church of the Orange Sky for building a better, more God-fearing Canada.


1. A Brief History of Abortion in Canada

It occurs to me that perhaps not everyone is all that well-informed about the history of abortion in Canada, which is in many ways much more interesting than the silly Roe v. Wade debates in the U.S., since it involves such sexy and exciting violations of basic democratic rights as wrongful imprisonment and court and legislative reversals of "not guilty" verdicts. For this reason, you may be interested to know, the basic Canadian right not to have an Appeals Court swap your acquittal by jury for a conviction and a prison sentence - which used to be something they could do routinely - is another unintended consequence of the abortion debate.

Until the 1960s, abortion was theoretically a crime punishable by up to life in prison. The law was passed in 1869, probably (though I don't know this) in the beginning stages of new social movements of that time period which campaigned against contraception and other reproductive rights as well (these too were outlawed in 1892).

In practice this law was difficult to enforce, since doctors convinced that an abortion was necessary would simply make decisions in vague informal "committees" in order to dilute legal liability and make a conviction difficult. One of Canada's first female doctors, Emily Stowe, was actually charged with performing an abortion on a pregnant teenager in the 1870s, who later committed suicide (Stowe was eventually acquitted). Effectively it became increasingly difficult to charge people with performing abortions, but occasionally charges were laid for other reasons - for example, Leon Azoulay was charged with murder after one of his patients died, as a result of an abortion procedure, during the 1950s. Azoulay was convicted, but the Supreme Court chose to free him on the somewhat dubious technicality that the evidence in the case was excessively complex and the trial judge had allowed the jury to become "confused."

To strengthen the law, Pierre Trudeau, that grand father of multiculturalism and other fictions, "liberalized" the abortion law in 1969 by permitting abortions in any case where a woman could persuade the members of a hospital's "therapeutic abortion committee" to authorize the procedure. In practice, of course, this was basically meaningless - it wasn't hard for hospitals under the influence of anti-abortion groups to either stack the committees or bury the committees under so much paperwork and obscure regulations that decisions would never be made. Still, Canadians will probably remember this new abortion law, if for other reasons: it's the same one in which Trudeau legalized homosexuality and contraception, and famously declared that "the state has no business in the bedrooms of the nation."

Enter Henry Morgentaler, a survivor of Auschwitz who moved to Canada after World War II. In 1969, angered by the new law, Morgentaler quit his family practice in Quebec and began openly and exclusively performing abortions. In 1970, before the Roe v. Wade crisis in the U.S., he was arrested in Quebec on charges of performing abortions. Over the next several years, Morgentaler was tried several times on similar charges, and in each case, in a testament (in my opinion) to the honour and integrity of the people of Québec, juries refused to convict him even in the face of clear and persuasive evidence. (Morgentaler himself openly testified that he was breaking the law, and even collected evidence against himself.) By the 1980s, Morgentaler had moved to Ontario and was charged there too; once again, he was acquitted in 1983, but the Court of Appeals ordered him sent to jail anyways. (This prompted the legal protection of jury verdicts I mentioned earlier.) Finally, in Canada's own Roe v. Wade decision in 1988, Morgentaler took the abortion laws to the Supreme Court and had them overturned on the grounds that they were unconstitutional. Unfortunately, the Supreme Court justices were so busy finding novel ways to beat up on the abortion part of the Criminal Code that, even though the abortion law was thrown out on a 5-2 vote, the judges failed to agree on a single justification for doing so, which means that technically it set no binding precedent preventing the Conservatives from introducing a new abortion law tomorrow.

In 1988, the Conservatives predictably reacted with righteous indignation, of course, and promptly attempted to pass a new law in 1989 which would re-criminalize abortion. (Even in the 1980s, you see, the first natural response of a so-called "law and order" government, upon learning that its laws are in fact illegal, is to pass them again anyways. I have a new idea: people who pass unconstitutional laws should be jailed for the maximum term their brand new "law" would have sentenced convicts to.) We came pretty close to not having legal abortion in this country: this law actually passed the House of Commons (the same month, as it happens, that a Waterloo student bled to death during an attempted self-abortion), but the Senate vote was tied, and that was the end of it. Thank God for our lazy, good-for-nothing senators. No attempt to pass abortion laws has been made since.

It's a nice story of civil resistance, but it's worth muddying the waters a little by noting that Morgentaler has profited handsomely from his work. It's also worth noting that it's almost certainly lunacy to frame the abortion resistance movement as a personal crusade by Morgentaler, once again turning even women's reproductive rights into a "great man" theory of history. I'm afraid I don't know enough to overturn this somewhat ridiculous historical bias, but I do know that in 1970, three dozen women closed Parliament for the first time in Canada's history by chaining themselves into the gallery as part of a protest against anti-abortion laws.

Which brings us to the present.


2. Epp's New Movement

Laws like Epp's were deliberately passed by religious right groups in several American states, including the Carolinas, on the grounds that it would give them a legal beachhead from which they could easily proceed to outlaw abortions. These laws have also led to charges against pregnant drug addicts and a variety of other dubious outcomes. Epp claims that this isn't the purpose of the new law and that he has built in protections to make sure this won't become part of a renewed campaign against abortion, which I suppose is half-true (he has built in protections, but it's also part of a renewed campaign).

Guilt by association is not solid either legally or logically, but it's interesting to note the company Epp is keeping nonetheless. Pretty much all the major public backers of this bill are people who have already publicized their desire to see abortion re-criminalized, which has to make one wonder about their intentions here. There's the Catholic Organization for Life and Family (COLF), and the Canadian Conference of Catholic Bishops, naturally. There's also Don Hutchinson, lawyer for one of my old denominations, the Evangelical Fellowship of Canada. Even Focus on the Family is getting in on the action.

(Some of the other supporters of the bill, I should add, are somewhat more dubious; one, for example, appears to believe that opposition to Epp's bill is the result of a Red conspiracy against the Harper government. It's too bad this blogger seems so paranoid, because I think he and I may actually agree on the matter of abortion as such.)

The argument seems to be that the new law is necessary to protect pregnant women. Focus on the Family proudly proclaims that "Canada’s Parliament has never been closer to passing legislation that would make it a crime to kill or injure an unborn child during an assault upon the baby’s mother" - making it sound as though this dubious extension of "law and order" is in fact a long-fought-for right rather than an extremely recent innovation. Hutchinson, mildly idiotically, goes so far as to claim that the new law is pro-choice because it will protect "the choice a woman makes when she decides to give birth to the child within her" from the mad psychotics lurking on street corners looking for opportunities to kill unborn fetuses.

Well and good, but completely pointless. Assault and murder are already crimes in Canada, and in each case, harm to the fetus is already an aggravating factor in determining sentences for people convicted of those crimes. Ironically, the existing law actually does more to punish people who attack pregnant women than the new one will, because under Canadian law, the sentence for a second death (in this case, the fetus) is served concurrently with, or at the same time as, the sentence for the first (in this case, the mother). If you're planning on killing a pregnant woman (which I sincerely hope you aren't, for obvious reasons), you're already looking at a life sentence for murder, the sentence to be determined in part by the fact that she is pregnant. The new rules aren't going to make the slightest bit of difference in that respect.

Intriguingly, the supporters of this bill seem to be aware of these problems. For that reason, the COLF is arguing that the new law is needed because it recognizes "the human dignity of the unborn child and the value of human life." Presumably talking points are being shared around by the various pro-life groups that are part of the new campaign, because this is basically duplicating the same arguments made by Epp, who apparently told pro-choice and anti-war (nice combination) activist Carolyn Egan, in a televised debate, that we need to recognize "the humanity of the unborn child."

Why is it so important that we charge someone with two crimes instead of one? Well, because we need to recognize the crime against the fetus as well as the crime against the mother, obviously. So then, the issue really isn't about "protecting women who are pregnant," and it's only vaguely about "protecting" the fetus - it's about "recognizing" the fetus. Recognizing that it is "human," that it has "dignity," that it has "value," and so forth. It's not surprising that pro-life people would be attracted to this position. But can they really be surprised when pro-choice advocates then worry that this is a stealth move to give human rights to the fetus?

As a last angry note, I have to say that there's some misleading talk going on, bordering on blatant lies, when people like Hutchinson imply that this law has nothing to do with the broader pro-life and anti-abortion movement. Do you really expect us to believe that, if and when Bill C-484 is passed into law, at some point you're not going to tell us "we've already recognized the dignity of the fetus, now we need more laws to protect its life!" Let's be honest with each other.


3. The New Anti-Epp Opposition

My expectation for honesty and integrity applies equally to the opposition to C-484, and unfortunately, so does my disappointment. The Abortion Rights Coalition of Canada (ARCC), for example, has released a set of talking points, 14 in total, arguing that this Bill makes it harder to reduce domestic violence against pregnant women (at worst, it simply does nothing to change the present situation, except for wasting many man-hours of activism on the part of various conservative action groups), that it compromises women's rights (it doesn't, though the next step on this road certainly might), and so on.

The fact that the opposition has taken the form of suggesting we must not give human rights to the fetus is also somewhat problematic in that it seems to have ignored the rather more important question of whether the fetus counts as human in the first place. If it does, then there would seem to be no problem in adding this new law, even if it is a rather pointless exercise in frivolity in terms of what it will actually do to reduce violence against woman. The correct course of action would therefore be to ignore this altogether and concentrate on more important issues.

What this debate risks moving into is a very dangerous territory in which we're going to let the Criminal Code - and, therefore, whichever political front holds the keys to the Code at any given time - determine through the law what counts as "human" and what doesn't. This is a subjective and philosophical question, not an objective or legal one, and unfortunately both the pro-life and pro-choice camps can point to some fairly easy if rather flawed milestones: conception, and birth.

Unfortunately, mammalian evolution didn't take into account the current ethical dilemma while it was designing the reproductive process, and English political philosophy - based as it is on the perspective (for the most part) of elite male Brits - didn't really take into account the mammalian reproductive process in determining what counted as human life. (Indeed, for a sizeable chunk of the time since the Magna Carta, most fully born human lives didn't really qualify for a high standard of ethical protection either.) The gradual extension of civil rights is something many people feel was a great accomplishment in our culture - on the other hand, the very fact that I've used the term "extend" there suggests the crucial point that "human" rights, despite what the name might imply, are awarded through political recognition, not actually possessed by virtue of being human.

In this case, the opposition to C-484 appears to argue that even some limited set of human rights must not be extended to the fetus because this would lead to the end of abortion and to further oppression of women, particularly women who are pregnant in this case. They may or may not be right, but they're playing a dangerous game by letting themselves get lured onto a rigged playing field. Historically, the people who argue against the extension of rights usually lose, in the long run, ironically because they end up sounding conservative and self-serving. In this case, for example, no one appears to be arguing why humanity shouldn't be legally recognized in the case of an unborn fetus, except that it would cause great difficulty to a pregnant woman. This is a terrible argument, because once the religious pro-Epp side hears it, they're almost certainly going to gleefully point out that human rights cannot be denied simply because doing otherwise would inconvenience others. (This was precisely the same argument that Anglican radical abolitionists made in R. v. Knowles in 1772, and in doing so they rightly won the right of emancipation for slaves living in England proper.)


4. The Orange Sky Speaketh

Aside from some somewhat dubious arguments about legal and political "slippery slopes," I really don't think there's much point in getting excited about C-484 one way or the other, since, as feminist groups correctly point out, this isn't going to do much about violence against women - pretty much as one would expect from a law produced by the same government which recently kneecapped Status of Women Canada and, according to my contacts at any rate, also dropped strategic gender policy at the Canadian International Development Agency. It's not worth having a debate about rights of the fetus.

First, while pro-choice groups waste valuable effort opposing a bill even they admit is basically pointless one way or the other in terms of preventing violence, we're ignoring the real problems relating to reproductive rights in this country. There is, for example, effectively no right to abortion as a medical procedure on Prince Edward Island, where, in open violation of the ruling from R. v. Morgentaler, the provincial government will fund an abortion only if a woman gets referrals from two doctors (effectively recreating in practice the "committee" approval process the Supreme Court ruled was unconstitutional), and only if she leaves the province for the procedure, since no publicly funded facilities on the island handle abortions. Other provinces, similarly, have adopted various policies under which abortions are only partially or negligibly funded by the medicare system. Despite the fact that this is an open violation of the Canada Health Act, the religious right in provinces such as B.C. continues to lobby to extend such policies to yet more provinces. What this creates is a precursor to what would follow any attempt to ban abortion nationally - a system in which private procedures are always available to those with enough money. (You'd think this would trouble the religious right, since their continuing paranoia about high immigrant birthrates reveals nascent eugenic tendencies, and historically eugenicists aren't terribly excited about poor people having more babies than rich people.)

Usually these campaigns - or at least the propaganda that I have seen in churches - try to argue that we shouldn't be using taxpayer money to kill fetuses and then note that women could still choose to perform abortions but would have to use their own money to do so) -- which makes a little bit of sense until you remember that our government currently uses $20 billion a year in taxpayer money to buy guns and tanks to kill foreigners and intimidate the First Nations, and no one suggests that we should privatize that program on the basis that people should get to make and pay for decisions over life and death all by themselves.

Forget this notion of "human rights" in the Criminal Code. The real threat to freedom of choice in Canada lies in these insidious efforts to prohibit abortion via creeping regulation.

Secondly, even if as a society we were to recognize the fetus as an independent human being, I'm not sure why this would affect abortion at all - at least in terms of criminalization. At the point when any person is not biologically capable of surviving without vital assistance from the body of another person, to refuse that assistance might be immoral, but it is certainly not criminal. For example, if I refuse to donate a kidney to someone who needs one, they may die. Personally, I would probably feel I had an ethical obligation in that situation. But it would plainly be ridiculous to make it a criminal offence for me to refuse - and indeed, if the Conservatives wrote into the Criminal Code that everyone must consent to medical procedures intended to save others' lives or risk criminal penalties, the religious right would probably hit the roof, even though agreed with me that as individuals we have a moral obligation to render assistance wherever it is needed.

There are a couple of common responses to this argument. One is that by having sex you consented to the responsibility of pregnancy, something clearly weak on philosophical grounds and equally clearly baseless on legal grounds, unless of course you signed some sort of contract beforehand, which would probably kill the mood. This response also falters in part because one of my other concerns, which is that in the present legal and social context, and given some prevailing trends in biology, it is not possible to ban abortion without imposing unfair and sexist constraints on women. No one really seems to be in favour, for example, of criminalizing a man's decision to walk away during a pregnancy; indeed, the absolute minimum legal liabilities of men are limited to nominal financial commitments after birth, in the form of child support payments. If men have the right to abandon a pregnancy, it follows that women must as well.

Of course, even more laws could be written restricting what men could do in such cases, though I suspect that many of the men involved in conservative politics on abortion would start to have second thoughts at that point. Plus, that would probably lead us in a logical sequence through a series of legal amendments back to something akin to Levitican marriage law, in which sex equals possession equals ownership and women are "protected" by overt subjugation to men.

If worst comes to worst, at some point a Conservative majority parliament will try to re-criminalize abortion. I say let them. Such a bill could conceivably pass Parliament, presumably under some sort of emergency accelerated debate and voting procedure since the NDP, the Bloc, and even most of the Liberals can be trusted to fight tooth and nail on this issue. The Senate is more pro-choice than it was in 1989, so it would almost certainly get kill the bill, just like it did the last time. And even if this didn't happen, the first legal challenge would probably be on its way to the Supreme Court in a matter of hours. The Supreme Court would then uphold the prevailing position that abortion laws are unconstitutional, and hopefully this time at least three of the majority would agree on the same justification for their verdict. At that point the issue would be pretty much finished permanently - since it would then become effectively impossible for any further legislative debate - and the anti-abortion movement would find itself about ten steps back of where it is now. God willing, they'd then turn to a much more effective way of reducing abortions, like better sex education, more access to contraceptives, and more access to social welfare measures for new families and single mothers.

All of this could happen with or without the coercive power of the Criminal Code, which is probably why the lowest abortion rates in the world happen to be in those countries with liberalized abortion laws.