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Bill C-510 and the Dilemma of Difference: Assessing the Role of Anti-Violence Legislation in the Woman-Protective Anti-Abortion Movement

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Bill C-510 and the Dilemma of Difference: Assessing the Role of Anti-Violence Legislation in the Woman-Protective Anti-Abortion Movement BILL C-510 AND THE DILEMMA OF DIFFERENCE: ASSESSING THE ROLE OF ANTI-VIOLENCE LEGISLATION IN THE WOMAN-PROTECTIVE ANTI-ABORTION MOVEMENT by Cara E. Davies A thesis submitted in conformity with the requirements for the degree of Master of Laws Graduate Department of the Faculty of Law University of Toronto © Copyright by Cara E. Davies (2010) Bill C-510 and the Dilemma of Difference: Assessing the Role of Anti-Violence Legislation in the Woman-Protective Anti-Abortion Movement Cara E. Davies Master of Laws Faculty of Law, University of Toronto 2010 Recently, some in the anti-abortion movement have begun to assert that abortion harms women and access to abortion should be restricted or prohibited to protect women’s rights. This paper suggests that woman-protective anti-abortion (“WPA”) arguments could become more recognizable in Canada if other kinds of woman-protective legislation are adopted. In particular, this paper focuses on private member’s Bill C-510, an Act to Prevent Coercion of Pregnant Women to Abort (Roxanne’s Law). This paper suggests that Bill C-510 is problematic because its differential treatment of women reinforces historical stereotypes of motherhood and female vulnerability, the same stereotypes upon which the WPA relies. By reinforcing these same stereotypes, Bill C- 510 creates a climate in which WPA restrictions on access to abortion appear more reasonable. The paper concludes by suggesting that the existing aggravated circumstances sentencing sections in the Criminal Code already provide judges with discretionary powers to deal with offences like coerced abortion. ii Acknowledgements First and foremost I would like to thank my supervisor Denise Réaume who provided me with invaluable guidance and knowledge throughout the entire research and drafting process. I would also like to thank my second reader and former professor Rebecca Cook, who inspired me to embark on this project and helped me finish it. Finally, I am grateful to Colin Miller, for his support and patience, and to my friends and family, who helped me through this challenging and inspiring year. iii Table of Contents Introduction................................................................................................................................................... 1 I. History of the Anti-Abortion Movements: From ‘Pro-Life’ to ‘Pro-Woman’................... 6 ‘Pro-Life’ vs. ‘Pro-Choice’: History of the Competing Rights Abortion Debate ............................ 7 The Emergence of the Woman-Protective Anti-Abortion Argument ................................................22 II. Bill C-510...............................................................................................................................................34 Bill C-510: An Act to Prevent Coercion of Pregnant Women to Abort (Roxanne’s Law) ..........38 Other Constitutional Issues: Concerns of a ‘Pro-Life’ Motive.............................................................42 Bill C-510 and Protecting Women’s s. 7 Decision-making Rights.....................................................48 III. Dealing with the Differential Treatment of Women in Law ...............................................54 Constitutional Treatment of the ‘Dilemma of Difference’: Guaranteeing Equality in Differential Treatment........................................................................................................................................57 R v. Lavallee: A Feminist Framework for Analyzing Differential Treatment ................................62 IV. Bill C-510 and the Woman-Protective Anti-Abortion Movement: Creating a Climate of ‘Protection’ ............................................................................................................................................76 Creating the ‘Abortion Trauma’: Bill C-510’s Reproduction of the Mother Stereotype.............77 Denying Women’s Capacity: Bill C-510’s Reproduction of Capacity Based Gender Stereotypes.............................................................................................................................................................91 V. Confronting the Feminist Dilemma of Difference: An Alternative Legal Strategy...111 Conclusion................................................................................................................................................122 Bibliography ............................................................................................................................................124 iv Introduction The status of abortion has been the subject of philosophical and religious debate for at least 5000 years.1 Most Canadians are familiar with both sides of the debate: ‘pro- life’ efforts have generally advocated for the abolition or restriction of abortion to protect the ‘life’ of the fetus and ‘pro-choice’ efforts have generally advocated for access to abortion to protect women’s rights to autonomy and health. More recently, however, the traditional ‘pro-life’ arguments have been increasingly ignored in Canada and in the United States in large part because of the ‘pro-life’ movement’s failure to respond to women’s rights concerns.2 In response, some in the anti-abortion movement have begun to shift their anti-abortion advocacy efforts; instead of arguing exclusively for the fetal ‘right to life,’ these abortion opponents also assert that abortion harms women and access to abortion should be restricted or prohibited to protect women’s rights. Anti-abortion groups in both Canada and the United States have begun incorporating these woman- protective anti-abortion (“WPA”) claims into their anti-abortion platforms. In the United States, this advocacy has seen some political success. In South Dakota, WPA arguments were the basis for abortion bans tabled in both 20063 and 2008.4 These bans were only 1 James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800-1900 (New York: Oxford University Press, 1978) at 4. 2 Reva Siegel, “Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart” (2007- 2008) 117 Yale L.J. 1694 at 1715 [Siegel, “Dignity”]. Siegel suggests that the American ‘pro-life’ anti- abortion movement became increasingly unable to persuade a significant portion of the population that it was sensitive to women’s rights claims. Evidence discussed below suggests that one can make similar claims about the Canadian experience. 3 U.S., H.B. 1215, An Act to establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, to prescribe a penalty therefore, and to provide for the implementation of such provisions under certain circumstances, 2006, 81st Sess., S.Dak., 2006 (repealed 2006). 4 U.S., H.B. 1293, An Act to refer to a vote of the people a bill to regulate the performance of certain 1 narrowly defeated in referendum.5 Similarly, in the 2007 case Gonzales v. Carhart, the Supreme Court of the United States upheld a state ban on a particular kind of abortion in part on WPA grounds.6 In Canada, we have not experienced the same influx of WPA arguments in law. There are no examples of woman-protective abortion bans like those tabled in South Dakota,7 nor have we had judicial recognition of the WPA argument like that in Carhart.8 This is likely in part due to the de-politicization of abortion in Canada; in the United States, abortion remains a highly partisan issue that is included in many politicians’ platforms and thus remains an active area for lobbying and reform.9 The federal criminal powers in Canada have also meant that the only entry point for criminal abortion legislation is at the federal level; unlike the United States, provinces cannot legislate criminal laws on abortion.10 Some might also suggest that the WPA has not entered Canadian law because the claims are too radical and too scientifically questionable to be taken seriously in abortions, to reinstate the prohibition against certain acts causing the termination of the life of an unborn human being, and to prescribe a penalty therefore, 2007, 82nd Reg. Sess., S.Dak., 2007 (repealed 2008). 5 Voters defeated the initial ban in a 2006 referendum, 56% to 44%. However, exit polls showed that those who voted against the ban might have supported it had the Bill contained exceptions for pregnancies that resulted from rape or incest (Amy Merrick, “South Dakota Vote Draws Attention” The Wall Street Journal (12 August 2008) A16, online: The Wall Street Journal <http://online.wsj.com/article/SB121848559101430821.html>). Perhaps in response to these exit polls, the second ban tabled in 2007 included exceptions for rape and incest (U.S., H.B. 1293, supra note 3). However, this ban also narrowly failed by referendum, 45% to 55% (“Voting for Reproductive Freedom,” Editorial, The New York Times (9 November 2008) WK8, online on 12 November 2010 <http://www.nytimes.com/2008/11/09/opinion/09sun3.html>). 6 Gonzales v. Carhart, 550 U.S. 124 (2007) at 159, 127 S. Ct. 1610, 167 L. Ed. 2d 480, 75 U.S.L.W. 4210 [Carhart cited to U.S.]. 7 U.S., H.B. 1215, supra note 3; U.S., H.B.1293, supra note 4. 8 See generally Carhart, supra note 6. 9 Raymond Tatalovich, The Politics of Abortion in the United States and Canada (Armonk, N.Y.: M.E. Sharpe, 1997) at 144. See the remainder of that chapter for discussions about the possible reasons that abortion is politicized in the Untied States, but not in Canada. 10 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(27), reprinted
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