Fetal Rights Back on the Agenda

Fetal Rights Back on the Agenda

The Chief Justice of the SUPREME COURT OF CANADA is seldom at a loss for words. But even Beverley McLachlin stopped in her verbal tracks last month while hearing arguments in the matter of Regina v. Ivana Levkovic. The facts were enough to make you glad you're not a judge: Levkovic, a former stripper from Mississauga, Ont., was accused of leaving the body of her newborn daughter on her apartment balcony, to be found--badly decomposed in a plastic bag--by her landlord when she vacated.

Levkovic was charged under Section 243 of the CRIMINAL CODE, which forbids concealing the body of an infant "whether the child died before, during or after birth." But pathologists were unable to determine whether Levkovic's baby was born alive or dead, and under Canadian case law, a child has no legal rights before it has emerged from the womb. By using words like "child," "baby" or "girl," therefore, the judges could be implying humanity on the part of the deceased. They'd also be undermining Levkovic's defence: if an unborn child has no right to legal protection, her lawyers had reasoned, how could the law stand?

Thus began a kind of linguistic minuet, as the judges reached for acceptable nomenclature for a hypothetical baby that the law might not regard as a person. McLachlin tried "object" and "being" and, at one cringeworthy point, referred to it as "this, um, dead, um, whatever." Her colleagues didn't fare much better. During a discussion of the applicability of mens rea, Justice Michael Moldaver, a former criminal lawyer who joined the court one year ago, referred to the infant in such cases as "the thing."

Not, in short, the Supremes' finest hour. Yet their determined slog through this marsh of semantic absurdity reflected a growing resolve, inside and outside the court's walnut-panelled chamber, to tackle one of the country's great outstanding questions: when does a fetus legally become a human being? The issue remains unresolved, and incendiary. Two weeks before the high court reserved judgment in Levkovic, all eyes had been on Parliament as MPs voted on Conservative backbencher Stephen Woodworth's private member's motion calling for a review of a section of the Criminal Code declaring a fetus as human only at the moment of complete birth. The initiative failed: Prime Minister Stephen HARPER had made it clear his government wouldn't support legislation that would reopen the contentious ABORTION debate. Still, the 91 votes it did garner surprised many observers, as did the high-profile yeas from Immigration Minister Jason Kenney and Rona Ambrose, the minister responsible for the status of women.

The Tory backbenchers aren't done. Even as the Woodworth motion fell, they were already talking up a motion by Langley MP Mark Warawa calling on Parliament to condemn the practice of abortions for the purposes of sex selection. Insiders say there are more such initiatives in the hopper. "You are going to see regularly MPs addressing [fetal protection]," said Saskatoon-Humbolt MP Brad Trost in an interview with Maclean's earlier this year. "It might be every six months, which compared to never is going to be a big change."

It's certainly a change from the 25 years since the Supreme Court struck down Canada's abortion law in R. v. Morgentaler, in the process sweeping away the protections for the unborn that had flowed from the Criminal Code. The court acknowledged in 1988 society's interest in guarding the fetus, especially in the late stages of gestation. But it shied away from the task of trying to balance that interest against a woman's right to safety and security should she decide to terminate a pregnancy. "The precise point in the development of the fetus at which the state's interest in its protection becomes 'compelling' I leave to the informed judgment of the legislature," wrote Justice Bertha Wilson, then one of the most liberal members of the bench, in an oft-quoted annex to the main decision.

But Parliament fell short: its second and last bill died on a tied vote in the Senate in 1991, leaving Canada the only country in the democratic world without some restriction on abortion after the first trimester. To anti-abortionists, this exceptionalism is a mark of shame, and the main reason that, at last reliable count, there were 28.3 abortions in Canada for every 100 live births. To pro-choicers, it's a badge of honour they've fought successfully to preserve, greeting any suggestion of restriction as a denial of a woman's right to choose. As the years passed, politicians grew less inclined to challenge that notion. And many Canadians came to regard the matter as settled. Why, then, is it back on the public agenda?

In part because the law abhors a vacuum, says Eugene Meehan, a former executive legal officer of the Supreme Court of Canada who closely follows the high court's decisions. "It's part of our nature to query mortality, immortality and when exactly we began," says Meehan, now a partner at Supreme Advocacy LLP in Ottawa. "The state of the law is a big zero in this area--legally we don't know when life begins. Nor do we know the circumstances in which life can end." Levkovic, he notes, is merely the latest in a series of sorrowful fetal-rights cases arising from the legal void left by Morgentaler: Jean-Guy Tremblay's bid in 1989 to stop Chantal Daigle from aborting their child; public health officials in Winnipeg trying to force a drug-addicted pregnant woman into treatment; the failed prosecution of an Ottawa woman who in 1996 tried to kill her unborn child by firing a pellet gun into her womb. In each instance, the courts ruled the unborn child has no legal status and therefore no right to protection. But that doesn't mean the issue is settled, says Meehan. "It keeps coming up in cycles, and will continue to do so until answered."

Just as important, though, has been a renewed sense of mission within Canada's battle-scarred pro-life movement, which has modified both its message and strategy to more closely reflect mainstream values. A pivotal moment came last May, when representatives from the Association for Reformed Political Action, a national Christian advocacy group, approached Vancouver-based activist Mike Schouten about running an initiative to build support for fetal protection legislation. Schouten, 36, is a former Christian Heritage Party candidate with a history of backing hardline conservative causes (including limits on Muslim immigration). He also has a knack for teasing rational arguments out of emotional issues. The result was WeNeedaLaw.ca, an online campaign using social media and electronic petitions to paint Canada's lack of an abortion law as an international anomaly--an embarrassment not by the standards of social conservatives, but of liberal democracies like Sweden and France.

It is not like anti-abortion initiatives that have gone before. WeNeedaLaw eschews churchy slogans, stakeouts at clinics and demands for an all-out ban on abortions. It speaks instead of "human rights" for fetuses and urges the passage of any law that would offer protection to the unborn--such as restrictions on late-term abortions. Schouten admits that this acceptance of part-measures doesn't sit well with some of his fellow travellers. "I've called on a lot of pro-lifers to rethink their positions," he says. But it does square with Canadian public sentiment. In an Ipsos Reid poll last July, fully 60 per cent of respondents--including 62 per cent of women--said they would support a law limiting access to abortion during the last trimester. The thousands of signatures WeNeedaLaw sent off to MPs played no small role in getting Woodworth's motion onto the Commons floor.

The group's approach is part of a broader strategy within the anti-abortion movement to win hearts and minds instead of lecturing or shaming. "Changing the culture" was the theme of a national conference held last month in Toronto by LifeCanada, the umbrella organization of pro-life groups across the country; it could be viewed as the coalition's mission statement for the future. "The view of the pro-life movement for the last two decades has been that of a small minority outside the mainstream, older and probably religious fundamentalist," says Lisa Smith, president of LifeCanada's board, from her home in Drayton Valley, Alta. "But we can look around now and see young people taking up the cause. I think there's a lot of optimism and encouragement."

The effect has been to refurbish the image of the anti-abortion movement, and its newfound momentum has not escaped the attention of its pro-choice foes. Carolyn Egan, a veteran activist with the Abortion Rights Coalition of Canada (ARCC), says the pro-choice camp must now step up its response that even discussing a fetal rights law is the first step on a slippery slope. "Their strategy could be referred to as anti-choice by stealth," she says. "Step by step, they want to create barriers for women to access abortions. But it's true that the message is gaining some traction."

That familiar pro-choice talking point may yet have some mileage, if not in the court of public opinion then at least in the political realm. John McKay, a six-term MP from Scarborough, Ont., is one of four Liberals who voted in favour of Woodworth's motion and believes anti-abortionists have a long way to go before political leaders overcome their fear of offending women by daring to discuss fetal rights on the hustings. "There are a lot of issues that divide Canadians," he says, "but this one's a vote mover. It gets people out to the polls."

Still, the MP says, the whole exercise of tabling the motion helped loosen the logjam on the discussion of fetal rights, and exactly when an unborn child becomes a legal human being. A vast swath of Canadians, he notes, share a visceral sense of the fetus as a fragile being that deserves a modicum of state protection at some point of its development in the womb. And if cases like Levkovic demonstrate anything, it's that we could all use some well-chosen and commonly understood words to give form to that instinct. Even the justices of the highest court in the land.

Maclean's November 19, 2012