Last week, the Manitoban published an editorial by Joshua Van Benthem entitled “For those who are concerned” (read the full article by clicking on the title). In it, Van Benthem argues for the criminalization of late term abortion, saying that once a fetus is “viable” for life outside of the womb, it should be deemed a full legal person, even if it has not yet been born. A woman terminating a pregnancy beyond this point could then be subject to criminal sanction. He goes on to discuss the defeated Bill 312, attempting to establish that the would-have-been committee’s consideration of “merely the medical facts” and “not legal precedent” would have somehow justified the infringement of women’s human rights he advocates.
Feeling rather concerned myself, I wrote to the Manitoban to express my disagreement with Mr Van Benthem’s views. I was disappointed not only to see that my letter was not featured in this week’s issue, but even more so to see no responses from anyone on the topic. With an issue as controversial as abortion and legal personhood for the unborn, I think it behooves the Manitoban to provide viewpoints on both sides of the issue.
I suppose it’s possible that a response to “For those who are concerned”, either mine or someone else’s, may be published in the future. Let’s hope so. In the meantime, I reproduce here the letter I wrote, as I sent it to the Manitoban last Friday. I think it would be great to have others respond to Van Benthem, as well. Have a look at what I wrote and think about what you might add or change, and then send it in! Their email address is : comment@themanitoban.com.
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5 October 2012
Re: “For those who are concerned,” by Joshua Van Benthem
Dear Manitoban,
I wish to respond to Joshua Van Benthem’s editorial in your most recent issue. I found the title “For those who are concerned” to be particularly apt, though likely not in the way that the author intended. I’m concerned, alright. I’m concerned about the human rights of women, and those who seek to limit them.
The author argues that, because some fetuses might be capable of surviving independently outside of the womb prior to the moment of complete birth, that “there should be a line” at some undetermined point in fetal development at which the fetus would be deemed a person, and thus, that aborting it would become a criminal offence. The Parliamentary Committee that would have been created by Motion 312, had it passed, would supposedly have looked at where this “line” ought to be drawn.
I noted that conspicuously absent from the items that would have been addressed by the Committee (as listed by the author) was, “What are the legal impacts and consequences of altering Subsection 223(1) on the fundamental human rights of the mother?” Clearly, the reason this query was omitted is that the answer to it will, in all cases, be that the impact on her rights would be unconscionable, and would render the committee’s other queries moot. While the “viability” of a fetus outside of the womb at any given point of its prenatal development will inevitably vary from case to case, the rights of each individual pregnant woman are necessarily invariable at all times during her pregnancy.
Turning our minds for a moment to the practical implications of what the author proposes, the notion that pre-natal “viability” can somehow be definitively determined and codified in law borders on absurdity. For example, is this “viability” with or without medical intervention? A baby can be born several months premature and survive with the help of incubators, intravenous nourishment, and other intensive therapies; would this be sufficient to be considered viable? What about the fact that a fetus with a chromosomal or other abnormality would very likely achieve “viability” much later in its development than would a “normal” fetus; were the author’s proposal to take effect, would this not create an untenable difference in legal treatment based on disability? Further, making this determination would necessarily be based on speculation; presumably the fetus would not be excised from the mother and left lying out in the open to see if it lived without her. Any information as to the physical state of the fetus to bolster the speculation would, of course, have to be gained via an invasion of the mother’s physical person. This only serves to highlight, yet again, the inseparability of a woman and her fetus at all moments until complete birth takes place, regardless of its stage of development.
Any attempt to ascribe independent personhood to the contents of a woman’s womb is a clear abuse of that woman’s physical autonomy and human rights. Canada’s highest court decided this in 1988, and no “medical evidence” can justifiably vary it.
Sincerely,
Elizabeth Mitchell
Co-Chair, Feminist Legal Forum
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