The question of Fetal Personhood...
Sorry about the weird formatting issues I'm experiencing as a result of cutting/pasting from Blogger! I'm going to try this again...
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Since the important issue of Dr. Henry Morgentaler's suitability as a recipient for the Order of Canada is being discussed, I thought I'd pass on the following news. I figured it was just a matter of time before this US legislation made it's way to Canada...
Oppose Fetal Personhood Law
Bill less about "victim's rights" than about undermining women's rights.
by Joyce Arthur, Abortion Rights Coalition of Canada
Tuesday, February 19, 2008
http://www.straightgoods.ca/ViewActNote8.cfm?REF=7
A private member's bill called The Unborn Victims of Crime Act (Bill C-484) has been introduced by Conservative MP Ken Epp (Edmonton Sherwood Park), and is scheduled for a Parliamentary vote on March 5. Bill C-484 would give fetuses a form of personhood by allowing separate homicide charges to be laid in the death of a fetus when a pregnant woman is attacked. Several recent murder cases in Canada have involved a pregnant woman being murdered by a male partner or boyfriend. The victims and families of these horrific tragedies deserve our deepest sympathy, and they deserve justice.
However, passing a law to allow murder charges for the death of the fetus is not the way to go. Such a law would be an unconstitutional infringement on women's rights. It is a key step towards re-criminalizing abortion, but it could also criminalize pregnant women for behaviours perceived to harm their fetuses. Generally when pregnant women are assaulted or killed, domestic violence is usually the cause.
The rights of fetuses should not take precedence over the rights of the woman. When media coverage focuses on the victim's fetus, and whether it should have rights or not, the pregnant woman is overlooked, and so is the problem that killed her - domestic violence. Homicide is a leading killer of pregnant women. It's well known that violence against women increases during pregnancy. But 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 has stated that his intention is that the bill protect only wanted fetuses. He said: "This is all about protecting the choice of a woman to give birth to her child." 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. Bill C-484 completely fails them.
here is no evidence that Epp's bill will have any deterrent or beneficial effect. So-called "fetal homicide" laws in the US have done nothing to reduce domestic violence against pregnant women or fetuses. Instead, the best way by far 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.
In Canada, women have guaranteed rights and equality under our Charter of Rights and Freedoms. Persons do not gain legal status and rights in our society until they have completely exited from the birth canal, alive (as per the Criminal Code, Section 223[1]). This means that Bill C-484 conflicts directly with the Criminal Code, because it assumes the legal personhood of non-persons under the law. Further, the bill tries to amend Part VIII of the Criminal Code, "Offences Against the Person and Reputation" but since the fetus is not a legal person it cannot rightly fall under this section.
The Supreme Court has ruled that a woman and her fetus are considered "physically one" person under the law in (Dobson vs Dobson), and that all rights accrue to the woman. If we give any legal rights to a fetus, we must automatically remove some rights from women, because it's impossible for two beings occupying the same body to enjoy full rights. If we try to "parties must be compromised, resulting in a loss of rights.
Legally speaking, it would be very difficult to justify compromising women's established rights in favour of the theoretical rights of fetuses. eparating a woman from her fetus under the law creates a harmful, adversarial relationship between a woman and her fetus. For example, if pregnant women are threatened with arrest for abusing drugs, they are less likely to seek pre-natal care. In reality, the best way to protect fetuses is to protect pregnant women - by giving them the supports and resources they need for a good pregnancy outcome, and by protecting their safety during pregnancy by reducing domestic violence in general. Some of the victims' families support Bill C-484.
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. Aside from the victims' families, those promoting the bill are anti-abortion groups and anti-abortion MPs, and other anti-abortion individuals such as McGill University ethicist Margaret Somerville.
This shows that the bill has little to do with protecting pregnant women. Instead, the intent is to use that law as a route to criminalizing abortion. Recognizing the personhood of fetuses opens the door to abortion bans because abortion could be deemed as murder. In the United States, anti-abortion groups and legislators have actually stated they want to use these laws to restrict abortion. Also, when the federal law Unborn Victims of Violence Act passed in 2004 in the US, its anti-abortion sponsors rejected proposals to protect the woman herself under the law.
A recent poll in Canada, commissioned by anti-abortion group LifeCanada, found that 72 percent of respondents support legislation that would make it a separate crime to injure or kill a fetus during an attack on a pregnant woman. Although such a law sounds reasonable on the surface, most people don't realize there's a hidden agenda against abortion behind the promotion of these laws. The public would probably be much less willing to support Bill C-484 if they understood its real effects. Here, we can look to the United States for evidence. In the United States, 37 states have enacted so-called "fetal homicide" laws (or "fetal protection" laws), which make it a crime to cause harm to a fetus. 24 of these state laws define a fetus as a person and a separate homicide victim.
This gives the fetus legal rights distinct from the woman who was attacked. In practice, these laws punish pregnant women, compromise women's rights in general, and do nothing to address domestic violence. Not only do these laws imperil abortion rights by giving personhood and rights to fetuses, but they target all pregnant women, including those trying to have a baby. Under state "fetal homicide" 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.
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 dozens of pregnant women with drug abuse problems have been arrested under fetal protection laws, even though they had virtually no access to drug treatment programs. Epp's Bill C-484 specifically exempts pregnant women from prosecution, as well as abortion.
However, these exemptions may not work. In the US, arrests of pregnant women have occurred even under state fetal protection laws that make exemptions for the pregnant woman herself. Courts have so far struck down these latter prosecutions, but arrests continue based on a growing body of law declaring that fetuses have rights separate from those of pregnant women.
Even where pregnant women themselves are not prosecuted under "fetal homicide" laws, others may suffer grave injustice. In 2005, Texas teenager Gerardo Flores 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- Texas had recently banned abortions after 16 weeks. This example also shows how fetal homicide laws can seriously impact abortion rights. When a law exists that recognizes fetal rights, it creates a legal contradiction.
Because if a fetus has the right not to be "murdered" in the womb by a third party, why doesn't it have the right not to be "murdered" by its own mother? This is why fetal protection laws are being used in the US to target pregnant women, including those who have sought illegal self-induced abortions.
Even when narrowly drawn to exclude the pregnant woman from prosecution, these laws create contradiction and confusion, resulting in the dehumanization of women, and a dangerous slippery slope towards criminalizing pregnant women for their behaviours while pregnant.
There are other ways to create justice in homicides of pregnant women. In Canada, the judicial system routinely takes aggravating circumstances into account. In the case of an assault or murder of a pregnant woman, even though a third party cannot be charged separately with harm to the fetus, prosecutors may 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.
Thirteen US states have laws that simply apply stiffer punishments for murdering a pregnant woman, but do not make the death of the fetus a separate crime. Perhaps we want a similar law. However, more serious 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 solutions would avoid the controversy about giving rights to fetuses or interfering with abortion rights, and would ensure that women do not lose their rights while they are pregnant.
Please sign a petition opposing the bill. Click here to read 14 "Talking Points" against the bill.
* * *
Since the important issue of Dr. Henry Morgentaler's suitability as a recipient for the Order of Canada is being discussed, I thought I'd pass on the following news. I figured it was just a matter of time before this US legislation made it's way to Canada...
Oppose Fetal Personhood Law
Bill less about "victim's rights" than about undermining women's rights.
by Joyce Arthur, Abortion Rights Coalition of Canada
Tuesday, February 19, 2008
http://www.straightgoods.ca/ViewActNote8.cfm?REF=7
A private member's bill called The Unborn Victims of Crime Act (Bill C-484) has been introduced by Conservative MP Ken Epp (Edmonton Sherwood Park), and is scheduled for a Parliamentary vote on March 5. Bill C-484 would give fetuses a form of personhood by allowing separate homicide charges to be laid in the death of a fetus when a pregnant woman is attacked. Several recent murder cases in Canada have involved a pregnant woman being murdered by a male partner or boyfriend. The victims and families of these horrific tragedies deserve our deepest sympathy, and they deserve justice.
However, passing a law to allow murder charges for the death of the fetus is not the way to go. Such a law would be an unconstitutional infringement on women's rights. It is a key step towards re-criminalizing abortion, but it could also criminalize pregnant women for behaviours perceived to harm their fetuses. Generally when pregnant women are assaulted or killed, domestic violence is usually the cause.
The rights of fetuses should not take precedence over the rights of the woman. When media coverage focuses on the victim's fetus, and whether it should have rights or not, the pregnant woman is overlooked, and so is the problem that killed her - domestic violence. Homicide is a leading killer of pregnant women. It's well known that violence against women increases during pregnancy. But 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 has stated that his intention is that the bill protect only wanted fetuses. He said: "This is all about protecting the choice of a woman to give birth to her child." 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. Bill C-484 completely fails them.
here is no evidence that Epp's bill will have any deterrent or beneficial effect. So-called "fetal homicide" laws in the US have done nothing to reduce domestic violence against pregnant women or fetuses. Instead, the best way by far 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.
In Canada, women have guaranteed rights and equality under our Charter of Rights and Freedoms. Persons do not gain legal status and rights in our society until they have completely exited from the birth canal, alive (as per the Criminal Code, Section 223[1]). This means that Bill C-484 conflicts directly with the Criminal Code, because it assumes the legal personhood of non-persons under the law. Further, the bill tries to amend Part VIII of the Criminal Code, "Offences Against the Person and Reputation" but since the fetus is not a legal person it cannot rightly fall under this section.
The Supreme Court has ruled that a woman and her fetus are considered "physically one" person under the law in (Dobson vs Dobson), and that all rights accrue to the woman. If we give any legal rights to a fetus, we must automatically remove some rights from women, because it's impossible for two beings occupying the same body to enjoy full rights. If we try to "parties must be compromised, resulting in a loss of rights.
Legally speaking, it would be very difficult to justify compromising women's established rights in favour of the theoretical rights of fetuses. eparating a woman from her fetus under the law creates a harmful, adversarial relationship between a woman and her fetus. For example, if pregnant women are threatened with arrest for abusing drugs, they are less likely to seek pre-natal care. In reality, the best way to protect fetuses is to protect pregnant women - by giving them the supports and resources they need for a good pregnancy outcome, and by protecting their safety during pregnancy by reducing domestic violence in general. Some of the victims' families support Bill C-484.
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. Aside from the victims' families, those promoting the bill are anti-abortion groups and anti-abortion MPs, and other anti-abortion individuals such as McGill University ethicist Margaret Somerville.
This shows that the bill has little to do with protecting pregnant women. Instead, the intent is to use that law as a route to criminalizing abortion. Recognizing the personhood of fetuses opens the door to abortion bans because abortion could be deemed as murder. In the United States, anti-abortion groups and legislators have actually stated they want to use these laws to restrict abortion. Also, when the federal law Unborn Victims of Violence Act passed in 2004 in the US, its anti-abortion sponsors rejected proposals to protect the woman herself under the law.
A recent poll in Canada, commissioned by anti-abortion group LifeCanada, found that 72 percent of respondents support legislation that would make it a separate crime to injure or kill a fetus during an attack on a pregnant woman. Although such a law sounds reasonable on the surface, most people don't realize there's a hidden agenda against abortion behind the promotion of these laws. The public would probably be much less willing to support Bill C-484 if they understood its real effects. Here, we can look to the United States for evidence. In the United States, 37 states have enacted so-called "fetal homicide" laws (or "fetal protection" laws), which make it a crime to cause harm to a fetus. 24 of these state laws define a fetus as a person and a separate homicide victim.
This gives the fetus legal rights distinct from the woman who was attacked. In practice, these laws punish pregnant women, compromise women's rights in general, and do nothing to address domestic violence. Not only do these laws imperil abortion rights by giving personhood and rights to fetuses, but they target all pregnant women, including those trying to have a baby. Under state "fetal homicide" 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.
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 dozens of pregnant women with drug abuse problems have been arrested under fetal protection laws, even though they had virtually no access to drug treatment programs. Epp's Bill C-484 specifically exempts pregnant women from prosecution, as well as abortion.
However, these exemptions may not work. In the US, arrests of pregnant women have occurred even under state fetal protection laws that make exemptions for the pregnant woman herself. Courts have so far struck down these latter prosecutions, but arrests continue based on a growing body of law declaring that fetuses have rights separate from those of pregnant women.
Even where pregnant women themselves are not prosecuted under "fetal homicide" laws, others may suffer grave injustice. In 2005, Texas teenager Gerardo Flores 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- Texas had recently banned abortions after 16 weeks. This example also shows how fetal homicide laws can seriously impact abortion rights. When a law exists that recognizes fetal rights, it creates a legal contradiction.
Because if a fetus has the right not to be "murdered" in the womb by a third party, why doesn't it have the right not to be "murdered" by its own mother? This is why fetal protection laws are being used in the US to target pregnant women, including those who have sought illegal self-induced abortions.
Even when narrowly drawn to exclude the pregnant woman from prosecution, these laws create contradiction and confusion, resulting in the dehumanization of women, and a dangerous slippery slope towards criminalizing pregnant women for their behaviours while pregnant.
There are other ways to create justice in homicides of pregnant women. In Canada, the judicial system routinely takes aggravating circumstances into account. In the case of an assault or murder of a pregnant woman, even though a third party cannot be charged separately with harm to the fetus, prosecutors may 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.
Thirteen US states have laws that simply apply stiffer punishments for murdering a pregnant woman, but do not make the death of the fetus a separate crime. Perhaps we want a similar law. However, more serious 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 solutions would avoid the controversy about giving rights to fetuses or interfering with abortion rights, and would ensure that women do not lose their rights while they are pregnant.
Please sign a petition opposing the bill. Click here to read 14 "Talking Points" against the bill.