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Anti-Choicers Want to Jail Women for Abortion

By Joyce Arthur

November 2007

Some of Canada’s leading anti-abortion spokespersons want women to be prosecuted and jailed for homicide for having abortions.

In a disturbing section of November’s The Interim ("Canada's Life and Family newspaper"), five prominent anti-choice spokespersons plus an anti-choice columnist consider the question of criminal punishment for abortion, if abortion were to be made illegal again. Shockingly, four out of six believe women should be prosecuted and sent to jail, while the other two want women subjected to mental health treatment. All six want abortion providers to be prosecuted for murder.

The majority of Canadians would likely be horrified by the idea of sending women to jail for having abortions. Most reasonable people would see it as abhorrent and heartlessly punitive – not to mention totally unrealistic, given the large numbers of women who resort to abortion even when it’s illegal. But the unimaginable prospect and horrific consequences of trying to arrest and jail 100,000 women a year in Canada alone do not seem to faze anti-choicers.

Here’s the words of the four who favour prosecution of women:

Mary Ellen Douglas, National Organizer for Campaign Life Coalition, says: "We must not allow misdirected compassion for the mother to suggest that she and the person she hires to carry out the killing of her baby … should be above the law and receive no jail time. … [Our] desire for justice [for human life from the moment of conception] demands that severe penalties be given for crimes against the lives of defenceless people. … Jail time for those who commit the crime of abortion is not only just, but absolutely necessary."

Peter Ryan, Executive Director of New Brunswick Right to Life, says: “Women who undergo abortions should also be held accountable for taking a human life. Here, the law should perhaps resemble its present provisions for infanticide, which take account of the oft-present element of emotional duress." He says the law should be crafted "to distinguish between those who knowingly end a child's life and those ignorant about fetal life; that is, those who mistakenly assumed it was 'a blob of cells.' Crafting a law would be complex because of some dissimilarities with other homicides. But it could be done."

Rory Leishman, National Affairs columnist for the Interim, says that in 1969, the view of Trudeau and Parliament was that "any mother who attempts to have her child illegally aborted should be subject to up to two years' imprisonment. Few pro-lifers today would quarrel with that judgment," he claims. Leishman wants sex-selection abortion to be made a criminal offence punishable by imprisonment, and adds: "The same goes for any mother who would procure such an abortion. She, no less than the abortionist, should be subject to a severe criminal penalty."

Jennifer Ha, Editor of Life Immeasurable magazine, is more cautious in her response, but she does not rule out prosecution of women. She says "I do not believe that women should be punished legally for procuring an abortion." However: "I believe that we should not stretch our sympathy to accommodate every individual woman who breaks the law to (commit) such an abominable act, no matter how sympathetic and desperate the circumstance." 

The issue of women’s punishment for the crime of illegal abortion became a hot issue only recently, when an American filmmaker questioned a group of anti-abortion protesters outside a clinic in Libertyville, Illinois (Here is the YouTube video.) The filmmaker asked seven protesters if they thought abortion should be illegal. If they answered yes—as they all did—the filmmaker asked what the punishment should be for women who have illegal abortions. Anna Quindlen wrote a sardonic commentary on the Libertyville video, capturing the cognitive dissonance that inhabits many anti-choice minds.

You have rarely seen people look more gobsmacked. It's as though the guy has asked them to solve quadratic equations. Here are a range of responses: "I've never really thought about it." "I don't have an answer for that." "I don't know." "Just pray for them.”

You have to hand it to the questioner; he struggles manfully. "Usually when things are illegal there's a penalty attached," he explains patiently. But he can't get a single person to be decisive about the crux of a matter they have been approaching with absolute certainty.

In response to such questions posed to anti-abortionists, Rory Leishman writes in The Interim: ”Many pro-lifers have been tongue-tied and for good reason: the question is not amenable to any simple answer.”

From the pro-choice point of view, however, the main reason most anti-choicers have never considered the question, or don’t want women punished, is because the anti-choice view of women is paternalistic and sexist. They don’t see women as morally capable of making their own rational decisions, especially when it comes to having an abortion. They believe women’s primary, ennobling role is to mothers, and that all women naturally want to be mothers. Women are either not in their right minds when they choose an abortion, or they are passive victims of an abortion foisted upon them—therefore they can’t be held criminally responsible.

This is borne out by two of the responses in The Interim from anti-choice spokespersons, who call for mental health treatment for women who abort.

Natalie Hudson, Executive Director of Right to Life in Toronto, implies that women should at least be charged with manslaughter, but stops short of endorsing criminal penalties because women who abort should be judged as similar to suicidal persons "in serious need of immediate psychological assistance". What a woman needs is "serious, immediate intervention through government and private agencies ... to prevent her from abortion or counsel her once she has undergone one."

Theresa Smyth, Executive Director of Aid to Women in Toronto, also compares abortion with suicide and says: "People involved with abortion reflect not only interior pain, but a cultural disease. …  By the time we succeed in re-criminalization, there will have been so much healing in our culture that abortion will once again be unthinkable. Thus, someone who committed abortion would be personally aberrant - most likely, insane." She wants sentencing of women to be done through the mental health system, with prosecution deferred "pending treatment through a qualified post-abortion healing program", so that "treatment-compliant women could end up without a criminal record."

About 62% of Canadianssupport legal protection for the unborn” at some point before birth (according to a 2007 poll commissioned by an anti-abortion group). But a different poll in 2002 found that 78% of Canadians said Yes to the question: "Should women have complete freedom on their decision to have an abortion?" The startling contradiction between these findings probably means that people don't think through the implications—namely, that conferring fetal rights means restricting women's rights.

We can connect the dots between the wish to create legal rights for fetuses, and the wish to prosecute women for abortions. The result of both objectives is the same—pregnant women are criminalized and stripped of their rights. For example, the anti-choice movement in Canada has recently called for a ”fetal homicide law” that would make it a separate crime to harm a fetus during an attack on a pregnant women. Although this may sound like a reasonable proposal to many people, the evidence is already in on such laws—they remove civil rights from pregnant women and send them to jail for harming their fetuses. In the U.S., 37 states have enacted fetal homicide laws, which have resulted in dozens of arrests, prosecutions, and jailings of pregnant women themselves (not third parties) for “endangering” or “murdering” their fetuses. Their actual crimes? Most were poor minority women who had drug or alcohol abuse problems. Others were women with mental health issues, or who had resorted to self-abortion, experienced a stillbirth after refusing a Caesarean section, or just suffered a stillbirth.

Anti-choicers seem to gloss over the apparently trivial matter of women’s rights—even to the extent of trampling over women’s dead bodies in their zeal to save the lives of fetuses. A recent study (by the World Health Organization and the Alan Guttmacher Institute) found that women are just as likely to get an abortion in countries where it is outlawed as they are in countries where it is legal. Half of all abortions worldwide are unsafe and mostly illegal, with 70,000 women dying every year, and five million left injured.

In Canada, over 100,000 women a year currently have legal abortions. Before our abortion law was liberalized in 1969, estimates of the number of illegal abortions ranged from 33,000 to 120,000 a year, between 1955 and 1969. Many thousands of women died from those illegal abortions over the decades. The most documented deaths from illegal abortion in a single year during the 1960’s was 400, with actual numbers probably much higher.

The hard lesson learned by the developed world is that laws don’t stop abortion. They only drive it underground, kill and maim women, and turn them into criminals just for being women. This lesson has been very slow to catch on in poorer countries still largely influenced by the Catholic Church. For example, Africa and Latin America have the highest abortion rates in the world, even though abortion is generally illegal and unsafe there. Yet the anti-choice movement blithely extols these continents as “pro-life” havens where the people don’t “want” abortion.

Canada is well above this level of debate now. We have a more enlightened public that understands the folly and injustice of criminalizing abortion and jailing women. Even most anti-abortion people would concede this, judging by the responses given in the Libertyville video. The anti-choice leadership in Canada is decidedly more hardline, out of step with their own constituencies and stuck in the 1960's, if not the 19th century. It’s important to keep their extreme agenda in mind anytime we hear them call for legislation to protect fetuses, or “protect” pregnant women from abortion.