On little toes and other fairy tales — Stephen Woodworth’s Motion 312

by Lady Day

Hey, Lady!

Gawd, it’s been ages since I wrote. Damn it, why won’t these papers grade themselves, talks give themselves, meetings attend themselves, you know?

So, the Canadian House of Commons spent an hour today debating the legal definition of “human being.” This was occasioned by a private member’s bill (Bill 312) by M.P. Stephen Woodworth, who, for the past four months or so, has been bemoaning the fact that a four hundred year old law means that fetuses — oh, sorry, preborn babies — can be aborted right up until they’re entirely born except for their little toe, which has somehow lodged in the birth canal. Woodworth says that he isn’t necessarily concerned with abortion, per se — that this is a human rights issue for him. If fetuses are human beings, then they have rights and we need to defend them. How will we know whether fetuses are human beings? Well, he says modern science will tell us.

Oh, such an embarrassment of riches here. Where to begin? Where to begin?

Let’s start with the 400 year old law business. Woodworth traces Section 223 of the Criminal Code of Canada (CCC) — the section that defines “human being” — back to origins in the 17th century. According to Woodworth, in 1642, Coke’s Institute of Law recorded that “children before birth were not considered human beings until they were born alive. He [Coke] didn’t know any better.” That law made its way with very few revisions into CCC when the latter was enacted in 1892. Woodworth is likely more or less correct about the origins of CCC 223, but not in his conclusion that CCC 223 is 400 years old. The framers of CCC selected some portions of Coke’s for inclusion in CCC and excluded others. So, even if CCC had never been amended, 223 would be 120 years old, not 370. And, every time CCC is amended, every part of it is enacted again. 223 itself was last amended in 1970. Hell, that makes it younger than me!

Of course, the age of the law doesn’t matter. Much like people, it’s just or unjust regardless of its age. So, why does Woodworth keep spouting this “400 year old law” business? He does so because he is arguing that modern science can tell us when a fetus becomes a human being. They didn’t have modern science in 1642, he says, so how could they have known what science now tells us — that fetuses (oh, there, you see — I did it again — preborn babies) are human? Don’t believe him? Just ask a scientist!

Now, if you ask a scientist, and if she is a responsible scholar, she will tell you that science can tell us a great deal about embryonic and fetal development and about fetal cognitive capacity (She might tell you, for instance, that most scientists agree that fetuses cannot feel any pain before 20 weeks gestation, and that they are not capable of a conscious experience of pain — so-called “true pain” — before 26 weeks, if they are capable of it at all.), but that science cannot actually tell us when a fetus becomes a human being. Why not? Well, because “human being” is a term of art used within law and philosophy to denote a bearer of certain kinds of rights and responsibilities. It is not a species term, like “cat” or “octopus” or “human”. Everyone knows that human fetuses are human. No need to call in the scientists on this one.

Is scientific evidence relevant to whom we count as human beings? Sure. Like I said, “human beings” are so termed because of the rights and responsibilities they bear. To bear such things as rights and responsibilities, one must have certain capacities. Scientific data is a huge help in determining who has those capacities. But, on its own, science can’t adjudicate the question. I suppose that if there were a science of rights and responsibilities, those scientists could help. What would we call such “rights and responsibilities scientists?” Um, maybe lawyers, judges and philosophers? But Woodworth has made pretty clear that these aren’t the experts he wants to consult in this matter.

All of that is mere fun and games though. The real rub is his constant reference to that damned little toe — the toe of that poor 40-gestational-weeks baby who has entirely exited the womb except for the one toe that can’t quite find the way out. Mr. Woodworth, of course, doesn’t mean to suggest that ob/gyns and midwives will try to abort such unfortunate babes rather than helping them with the toe extraction. Even he knows that such a suggestion is preposterous. But he keeps using this example because he wants the public always to think of third trimester abortions when they think of abortions.

Here’s a confession. While I am strongly pro-choice, I actually agree that to abort a perfectly healthy 40 week (or 39 week, or 38 week, or or or…) fetus for no good reason is (usually) wrong. Morally wrong. But, do you know what? THAT NEVER HAPPENS. In Canada, 90% of abortions occur in the first 13 weeks, only .4% occur after 20 weeks, and none occur beyond 24 weeks on an elective basis. Absolutely no one carries a pregnancy this close to term and then aborts a healthy fetus. When late term abortions occur, it is inevitably because (1) the fetus is very ill and will surely die before or immediately following birth, or (2) the abortion is necessary to save the life of the mother. Late term abortions are without exception heart-breaking losses to the women who undergo them because, to a one, these women intended to have the babies.

But, forget about the fact that fetuses don’t feel pain before 20 weeks; forget about the fact that late-term abortions are never, ever elective and are very rare. What about that 90% of abortions that occur in the first 13 weeks? Wouldn’t it be better if these didn’t occur?

Maybe it would. I think there’s ground for sensible disagreement here. But, guess what? If you want to reduce the incidence of abortion, then the last thing you should do is to criminalize it. (An aside: Woodworth says that he’s not trying to criminalize abortion; he just wants to consider whether or not fetuses are human beings. Now, unlike Woodworth, I’m not a lawyer. But since CCC 223 exists for the purpose of determining which kinds of killings count as homicide, I’m pretty sure that amending that section such that fetuses count as human beings would make killing a fetus murder.)

Why shouldn’t you criminalize abortion if you’re trying to reduce its incidence? It seems pretty intuitive that outlawing abortions would mean fewer of them, right? Well, sometimes our intuitions are wrong. In fact, as study after study has shown, the regions of the world with the lowest incidence of abortion are those with the most liberal abortion laws. The lowest incidence of abortion in the world occurs in Western Europe, where 12 out of 1000 women undergo the procedure, and where abortion laws are typically quite liberal. The highest incidences occur in developing regions where abortion is illegal — 32 per 1000 women in Latin America and 29 per 1000 in Africa. Canada’s abortion rate is 14 per 1000 women, right behind Western Europe’s. Whatever our intuitions might tell us, prohibitions on abortion correlate to higher abortion rates.

Something else that studies, unsurprisingly, reveal is that in countries where abortion is against the law, the abortions that are performed are much more likely to be unsafe. That is, not only does criminalizing abortion not reduce its incidence, it increases the loss of life to women. Not all women, of course. If abortion were criminalized in Canada, middle- and upper- income women would simply go to the U.S. to pay for the procedure. It is poor women who would turn in desperation to back alley abortionists and who would end up in emergency rooms as a consequence. Let’s be clear: when abortion is illegal, more women have abortions, and more women die of them. Period. (And, it’s worth noting that when women die, the health and well-being of their already-born children suffers as a consequence. In developing nations, the orphans of women who die because of unsafe abortions are themselves much more likely to die.)

So, anyone who wants to see a higher incidence of abortion and more poor women bleeding in emergency rooms should send Woodworth a thank-you note because he’s on their side. Everyone else should write to their M.P.s and to their local newspapers, should sign petitions and scream their lungs out at rallies. Because this — this is bullshit. Woodworth says he’s concerned with human rights; so he wants to know if fetuses are human beings. Huh. You know who are human beings? Women. Already-born, walking and talking and thinking and loving and laughing and crying women. And they’ve got fucking rights — on that we should all agree.

Your friend,

Lady Day

P.S. Looking for more info on 312, or for a way to vent your righteous rage over it? This fabulous Facebook group is a great place to start!

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2 Comments to “On little toes and other fairy tales — Stephen Woodworth’s Motion 312”

  1. Great article. I’d just like to add that it’s not only women who are affected by reproductive rights being revoked. Anyone with a uterus will encounter problems with this.

    • Hey, Lady!

      That’s a really great point. FTM men (and other uterus-possessing people who don’t identify as women) are part of the equation too. Thanks for the useful reminder.

      Lady Day

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