Besides doing a "wingnuts on parade" editorial sequence drawing from such intellectual luminaries as Kathy Shaidle, we have the latest bit of near-psychotic stupidity from Barbara Kay published on Wednesday.
According to Ms. Kay's slightly rancid reasoning, anyone who objects to Bill C-484 is engaging in "hysterics".
nderstood as irrational emotional flailing about whenever public discussion touches on a woman's fruitful uterus, Hippocrates' neologism is spot on. Try to say out loud in this country that what's in a woman's pregnant belly is a human being, not a blob of tissue, and hysteria emerges in three interesting variations.
She then goes into a series of utterly brain dead defenses of Bill C-484 - such as the following:
Until now, a woman and her fetus have been treated as a single legal person. By laying two criminal charges in a pregnant woman's murder, C-484 will validate the unborn baby's existential human uniqueness.
Now, either Ms. Kay's lost her ability to grasp the very complex issues that Bill C-484 opens, or she's choosing to blithely ignore them. First of all, Bill C-484 infers a degree of "personhood" upon a fetus still growing in the womb. The first question that I would have to ask is at what point in pregnancy does that recognition take effect? Biology understand the process of gestation pretty well, but the process itself is somewhat imprecise. Law requires a fair degree of precision in such matters, and I find it hard to believe that it's anywhere near so simple.
Second, the moment we confer a discrete notion of "person" to the still-biologically dependent fetus, our legal system confers a series of rights and obligations. In such a situation, we have in effect taken a pregnant woman's autonomy over her body, and the pregnancy itself away from her. At what point is the "unborn child" (to borrow Ms. Kay's somewhat noxious terminology) a "tenant" in the mother's womb? What are the mother's legal obligations in such a situation? What are the fetus' obligations? If this starts to sound a little ridiculous, it's because it is. Bill C-484 confers a status upon an entity that cannot exercise its apparent legal status as a distinct entity from its mother.
An Environomics poll suggests that 75% of Canadian women approve of the bill. As Suzanne Fortin of the Family Coalition Party of Ontario (herself pregnant) wrote in these pages Monday, "Bill C-484 is a common-sense bill that would address the true nature of a woman's relationship with her fetus."
I call bullshit on that claim. Bill C-484 is not "common sense", it is a direct and blatant attack not merely upon those who would do harm by intent to a pregnant woman (a pretty vile creature to begin with), but further it is a direct attack upon the a woman's right to make her own moral and ethical decisions with respect to her pregnancy. The provision of that legal status as "distinct", this bill creates a legal pretext under which a woman could be detained in custody on the grounds that she intended to harm the fetus she was carrying. (No Bill C-484 doesn't say this explicitly, but once you create the notion that a fetus which is biologically dependent upon its mother is distinct from its mother, the door to such moves has certainly been opened.)
But wait: Women were not "legal persons" until 1929. That didn't mean that before 1929 their husbands had the right to kill them.
Here's where Kay tips her hand about the real intent of Bill C-484. The comparison with women's suffrage in the early 20th century is utterly bogus. While a fetus is unable to exercise or express its rights as a distinct being from its mother until after it has been born, a woman is an adult human being and is physiologically distinct from her husband. Also, Ms. Kay might want to consider that men certainly did have the right to beat their wives (quite legally, actually) up until relatively recently. (and sadly, far too many went well beyond slapping someone - and some still do).
Bill C-484 is in fact about restricting a woman's access to abortion - largely on the assertion that a pregnant woman is not capable of making a rational, moral decision on her own.
that mother and fetus are one person because their biological systems operate symbiotically -- well, the same is true of Siamese twins, indisputably two human beings. If one is murdered, and the other dies in consequence, should only one charge be laid?
Again, this is a false comparison. Not only legally, but biologically, we recognize conjoined twins as distinct beings for good reason. Short of major surgery, the co-dependency of such twins simply cannot be resolved - it is a lifelong condition - literally. This is quite distinct from the biological process of gestation which has a discrete end point called birth, at which point the fetus becomes a distinct individual separate from its mother, and able to begin to express itself - and thus exercise the rights that legal recognition as a distinct entity provides in law.
In spite of the weakly phrased provisos in Bill C-484, the bill does not protect medical professionals from investigation and charge under that law. All that someone has to do is come up with an argument that the doctor is "attacking" the woman (thus committing a crime of sorts) in any situation where some kind of medical intervention is involved in the pregnancy. (e.g. in-utero surgery where the fetus dies comes to mind as an example). If you think it's hard finding an ob-gyn today, just wait for C-484 to become law.
The intellectual cupboards of the no-abortion-constraints crowd are bare. Their fallback position has become ever more unworthy of enlightened democrats: censorship, personal attack and scare-mongering. Such is their logical desperation, they prefer to advocate that murderers escape justice rather than admit that an unborn child is a human being.
Incorrect, Barbara. What today's feminists will not tolerate is a return to the deadly era of "back alley" abortions, or of male-dominated medical panels evaluating whether or not they should be "granted permission" to end a pregnancy. Ill-worded, poorly conceived legislation that underneath it all is nothing more than an attempt to return us to that era is unacceptable - Bill C-484 is so poorly thought out that it didn't (and doesn't) deserve to have passed first reading in the House of Commons.
If Bill C-484 was written to exact greater punishments if a criminal attack disrupted the gestation process, that would be a much different thing, as the bill itself would then be framed correctly in terms of the mother carrying the fetus. Instead, it grants a status to the fetus that is not logically tenable unless your long term objective is to guarantee that the moment a woman becomes pregnant that she is nothing more than Herbert-esque Axlotl Tank. (If you haven't read Herbert's "Dune" saga, go read it - followed by reading Margaret Atwood's The Handmaid's Tale if you want some idea of just how horribly wrong-headed Bill C-484 is in its implications.
2 comments:
I'm not a lawyer, and don't even play one on TV, but given previous court decisions, I have a feeling that C-484 is unconstitutional. It's already been determined that the constitution does not protect fetuses separate from the mother. Passing a law won't change that.
The problem with C-484 is in the way that it is worded. That choice of wording provides a legal recognition of the fetus as distinct from the mother via an act of parliament.
We should not ignore the fact that the Charter provides Parliament the right to place "reasonable" limits on the rights described in the Charter by means of acts of parliament.
I suspect that the line of argument that would be used goes something like this:
(1) Since the Criminal Code of Canada now recognizes the fetus as a distinct entity from the mother, the fetus is therefore eligible for protection under S. 7 of the Charter.
(2) Abortion clearly violates the fetus's rights under S.7. Therefore , it is reasonable to limit a woman's access to the medical procedure.
(3) Therefore, by another act of parliament, abortion becomes a criminal procedure except under the most dire of conditions.
That's the approximate line of reasoning that I suspect Ms. Kay and the "Forced Birth" crowd would like to see unfold.
On the other hand, and this is in fact where the issue gets very thorny indeed, any such law would dramatically constrain a woman's rights under S.7 b creating legal obligations that the woman would be obliged to respect once she learned she was pregnant.
Additionally, such distinct recognition could reopen Tremblay v. Daigle by indirectly allowing the putative father of the fetus to act as "guardian" (legal sense) - this would obviously create several very nasty situations which certain groups would love to leverage to justify treating women as second class citizens again.
Please note, I don't necessarily think that these are likely outcomes of any substantive court challenge, however, we should not lose sight of the fact that such challenges are very expensive, and that the Federal Government liquidated the very programs that enable "average people" to make those challenges.
I'm not sure that C-484 is unconstitutional per se, as it may be argued as a "reasonable limit" under S1. of the Charter. However, it opens some legal "cans of worms" that are extremely complex, which I can only imagine the courts would be loathe to touch.
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