by Mike Schouten
Canada’s leading pro-choice advocates regularly argue that if the law recognizes the rights of pre-born children, even minutely, Canadians might develop alternative thoughts regarding abortion. Joyce Arthur, the executive director of the Abortion Rights Coalition of Canada is quoted as saying, “If the fetuses are recognized in [law], …it could bleed into people’s consciousness and make people change their minds about abortion.”
Unfortunately, rather than going down a “positive slippery slope” leading towards a more inclusive human rights doctrine in Canada, Canadian jurisprudence tells a different story. While the promotion of infanticide by “ethicists” such as Peter Singer and two philosophers in a recent issue of the Journal of Medical Ethics is generally dismissed by the public as extreme, Canada’s top legal experts are increasingly using our lack of legal protection for pre-born children as an excuse to enter the world wherein infanticide is an acceptable practice for women who have given birth and don’t receive the support they require to take care of their newborn child.
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First of all, there is the now infamous case in which Katrina Effert, an Alberta woman, strangled her newborn boy in 2005. After being found guilty of second degree murder by two juries, the ruling was overturned on appeal. In her ruling, Queen’s Bench Justice Joanne Veit cited Canada’s lack of an abortion law as a reason for lessening the charge to infanticide. Justice Veit wrote that, “while many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support.” Here we see Canada’s uniquely preposterous lack of abortion legislation literally being used to, at least on some level, justify the killing of born humans.
While many might call Ms. Effert’s case an anomaly, recent numbers from Statistics Canada reveal that this country is a lot farther down the slope than most realize. Statistics Canada records indicate that between 2000 and 2009, there were 491 botched abortions after 20 weeks gestation where the baby was born alive and subsequently left to die. Here we have a clear case of born babies being killed due to the inconvenient abortion complication known as “live birth.”
The Alberta trial judge who empathized with Katrina Effert and lessened her charge still ruled based on current laws that are in place; for these 491 infants, the law was willfully ignored! Section 223(2) of the Criminal Code states that, “A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.” Yet, these young Canadians have been abandoned both in the literal and figurative sense by all Canadian institutions and authorities.
We find another example of how the legal vacuum regarding pre-born human rights has created embarrassing situations in the case of Ivana Levkovic v. Her Majesty the Queen. Ms. Levkovic was charged after a building superintendent found a badly decomposed human infant in her apartment. Ms. Levkovic later told police that she had fallen, went into labour, and then put the dead body of the baby girl in a plastic bag and left it on the balcony. On October 10, 2012, the Supreme Court of Canada heard Ms. Levkovic’s case and in a number of the exchanges between Ms. Levkovic’s lawyer, Jill Copeland and the Supreme Court Justices, there was a blatant refusal to use the term child. At one point Chief Justice Beverley McLachlin stumbled as to what to call Ms. Levkovic’s baby and resorted to the term “object.” Show a three-year old child an ultrasound photo and she’ll call it a baby immediately; ask one of Canada’s top legal experts, and she comes up with “object.”
One of the most significant benefits of an abortion law, even a late-term abortion law, would be to stop the slide of Canada’s jurisprudence into the tacit acceptance of infanticide or “post-birth abortion” as the Journal of Medical Ethics referred to it. This is not anti-abortion fear mongering—one only has to look at the Netherlands’ 2002 Groningen Protocol allowing for the euthanizing of disabled infants to realize that this would not be unprecedented, even in Western Society.
An abortion law would stop the slide towards acceptance, legally or in practice, of infanticide. Here, I believe the majority of Canadians can find common ground.