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Can Having an Abortion Make you a Criminal?

June 28, 2019DMT.NEWS

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Source: Photo by Maria Oswalt on Unsplash

The topic of abortion has certainly been on the ears and minds of politicians and people alike lately. People sure have a lot of opinions on this matter, from pro-life to pro-choice and everything in between. For decades the fight to find common ground on this hot button issue has been waging on, with a ton of misinformation (purposeful, and not), and many discrepancies at the provincial (for us Canadians), and national level.

Interestingly enough, the topic of abortion is a fitting one for a new column (when family law turns criminal) mostly because it’s one that operates in the margins. The decision to have an abortion is one with psychological implications for women involved, and also one that may, unfortunately, have legal implications depending on where you live.

I was fortunate enough to see the True Crime Festival here in Toronto (#socialworknightout), when the inspiration for this post struck. It was there that I Saw the movie Bei Bei by Rose Rosenblatt and Marion Lipschutz. This film tells the story of Bei Bei Shuai, a young woman from China residing in Indiana. She attempts to commit suicide at eight months pregnant, after struggling with depression. Bei Bei survives, and once in the hospital learns that the fetus does not. It is there that she is charged with murder and feticide. Thus making her the first women in Indiana to be prosecuted for murder under these circumstances. This film sheds light on the harsh reality that 39 states currently have homicide laws such as these, forcing women, like Bei Bei to face charges such as death and life imprisonment.

So who decides, when does a fetus become a child? When does human life begin? These questions are complex and certainly, are not able to be properly pondered during an incredibly stressful moment in any given women’s life.

Psychologically, the debate about whether or not abortion causes traumatic side effects is controversial at best. What we do know is that women for a whole host of reasons may feel heightened emotional states, uncomfortable stress around the decision to terminate a pregnancy, the discomfort of actually receiving the procedure, and the loss that may be felt post-procedure. All of which, are serious, relevant, and a pivotal part of reproductive health (but hey, that’s just this professionals experience). What the research tells us is somewhat clear-cut. The ‘Turnaway’ study published on JAMA Psychiatry learned that psychological symptoms were only exacerbated in women who were prohibited from having the procedure. Secondly, The Turnaway study learned that there was no significant increase in long-term mental health challenges in these women than their counterparts who had abortions.

In addition, a summary of research by The Academy of Medical Royal Colleges in London was published in 2011. They found that more important than the actual decision to terminate a pregnancy on a woman’s mental health was the pressure she experienced around making that decision, and the negative attitudes about this decision. They also found that there was little difference in the overall evaluation of mental health in women who had abortions, and those who did not.

Unlike the psychology behind the decision, the legal arguments both for/against are much less set in stone…interestingly enough, because they are more open to interpretation. Since 1988 Canada’s judicial history has been one that continues to effectively shut down the reopening of the abortion debate.

In 1988 R v. Morgentaler the Supreme Court of Canada ruled that abortion law violated the Charter of Rights and Freedoms, effectively shutting down any attempts at discussing abortion in the Criminal Code.

This allowed abortion to be treated as any other medical procedure and allowed the provinces to regulate access to the procedure (similarly to our Southern neighbors, the United States). Unfortunately, this also made regulation difficult depending on the geographical location, and funding sources of the medical establishments. Unlike our Southern cousins, Canadian criminal law is federal, which does not entitle the provinces to prosecute like our United States counterparts. Here a few key judgments:

Tremblay V. Daigle in 1989, saw a violent ex-partner forcing his partner not to abort, even going so far as to get an injunction from the Quebec courts. This injunction was ultimately ruled unconstitutional at the Supreme Court as fetuses, in general, was not considered to have legal status as a person in Canadian Common Law, nor in Quebec Civil Law.

In R V. Sullivan, Lemay in 1991, two midwives were charged with criminal negligence after causing death to a fetus as a result of a complicated delivery. In this case, the Supreme Court found that a fetus was not a person for the purposes of criminal negligence, and the midwives were ultimately acquitted.

In Dobson V. Dobson, The Supreme Court was charged with determining whether Ms. Dobson, who crashed her car while pregnant and delivered her son prematurely was criminally responsible. Ms. Dobson was ultimately not held liable, as the ruling stated that the privacy and autonomy of all pregnant women would be compromised and that there was no way to standardize a reasonable standard of conduct for pregnant women.

So what does this mean? To summarize, the Canadian Criminal Code states that: A child becomes a human being when it has completely proceeded, in a living state, from the body of its mother (s.223, 1).

Unlike in Bei Bei’s case, Canadian Law states that a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being (s.223, 1).

Most importantly, what all of this shows, is that women and families deserve the opportunity to work with professionals and supports in a non-judgmental way, to make informed decisions, and to understand clearly the risks and benefits of any choices. Please seek out appropriate information from professionals well-versed in helping individuals and couples make the right decision for them, know the laws, and ensure that all women have the right to be physically and emotionally healthy.

Some resources:

Psychology today- search by abortion, prenatal, pregnancy for trained professionals in your area.

Canada:

1) https://www.actioncanadashr.org/

2) https://choiceconnect.ca/

3) Backline (1-888-493-0092, toll-free)

United States:

1) https://prochoice.org/think-youre-pregnant/naf-hotline/