It is possible to seek justice for the death of fetuses without new abortion laws
We can establish fetal harm as a crime without establishing fetal personhood
In 2017, Arianna Goberdhan was murdered by her violent ex-partner. Her death also came with that of her fetus, which was due less than a month later. Sentenced earlier this month after pleading guilty, her killer will not serve prison time for the murder of the fetus, drawing criticism from the family of the victims, as well as many other Canadians who believe that the death of the fetus should have led to independent charges.
In an opinion piece for CBC News, Robyn Urback argued that the situation brings in tension the right to abortion with the desire to see crimes against pregnant persons, predominantly women, punished more heavily. She cites a 1997 Supreme Court judgement in support of her claim that "we can't introduce fetal homicide laws without introducing new restrictions on abortion at the same time."
Her argument relies on a misunderstanding of the law. While the 1997 ruling does state that orders protecting fetuses would impinge on the right to abortion, it isn't talking about orders vis-à-vis third parties that may harm both parent and child.
That distinction was at the heart of the 1999 Supreme Court case Dobson v Dobson. In the case, the grandfather of a baby who was delivered prematurely by c-section following a car crash brought a negligence claim against the mother, who was driving. In refusing the negligence claim brought against the mother, the Court found that "there can be no meaningful analogy between a child's action for prenatal negligence against a third-party tortfeasor, on the one hand, and against his or her mother, on the other."
Right to bodily integrity
In Dobson v Dobson, just like in the 1988 R v Morgentaler decision that decriminalised abortion, it is the right to bodily integrity that disposed of the question, not the absence of fetal rights. If fetuses did have rights, those pregnant with them would still have a right to bodily integrity. The right to bodily integrity lies at the heart of the pro-choice movement and underpins the motto: "My body, my choice."
How could violence against fetuses be recognized in Canadian law? Although the recognition of fetal personhood would be one such way, it is an unwise one. It sends the wrong message and may spark unnecessary litigation by those who believe that the recognition upends bodily integrity and opens the door to the criminalization of abortion.
Personhood is not necessary for there to be a crime. Killing, harming, torturing, and neglecting animals are all crimes, despite animals not being persons. Recreational drug use is victimless but is nevertheless criminalized — though it arguably shouldn't be. This leaves ample room for standalone criminalization.
Consequences can also be part of a crime. Assault and assault causing bodily harm are distinct criminal offences in Canada. In an analogous manner, assault and homicide causing harm or death to a fetus could be crimes, which would allow the formal recognition of the fetus' death as an integral part of the initial misogynistic violence. Contrary to Urback's claim, it is possible to seek justice for the death of fetuses without new abortion laws.
Creating new crimes, however, may not be the solution we need to address violence against pregnant persons. Time and time again, women who were murdered by current or ex-partners die after unsuccessfully seeking out protection from the state. Nearly every week on social media, we can read about women who tried to contact the police shortly before their femicide, only to be turned away.
Instead of trying to punish crimes after they occur, we should invest resources in services for those fleeing intimate partner violence. Shelters are grossly underfunded, and women are regularly turned away from them. Funding is what they need — not new criminal laws. We need tools to prevent violence from occurring in the first place — not new ways of meting out retribution when it's already too late. Although criminal laws may have their place, they should not be the first measures we turn to when more effective ways of preventing violence exist.
The stark choice presented in Urback's column between criminalizing fetal harm and the right to abortions is a false one. It is possible under Canadian law to criminalize fetal harm without establishing fetal personhood. New forms of criminalization, however, may not be the most efficient response to decrease the epidemic of violence against pregnant persons. Investment in services for pregnant persons impacted by intimate partner violence could help prevent the deaths that criminalization alone cannot address. Resources should be directed to address the root of the problem, not the outcome after the fact.
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