They're using the a-word. Let's talk about why.

A bill about pregnant women has provoked a lot of ugly politics. We need to do better.

I’ll start this article with a warning.

Writing about abortion politics is akin to political suicide in Canada, so I'm taking a risk by writing this. But I felt this piece was necessary for me to write. And a bit of history is needed to understand what’s happening, so this piece is a longer read.

So an appeal from me to you. Bear with me by reading right through the end. We might not agree on everything I've laid out here, but I hope you come away with some insight you might not have previously considered. 

And I hope you approach the piece in the spirit with which it was written, an attempt to be thoughtful and objective in my work as a legislator.

Much love,

Mrg.

*****

The issue 

Last week, Michael White, who in 2005 violently murdered his pregnant wife, Liana, was granted full parole. The White case is one high-profile example of a well-known fact: when women are pregnant, they are vulnerable to violence.

The University of California at San Francisco has outlined the enormity of the issue, stating that domestic violence is more common than any other health problem among women during pregnancy. The World Health Organization has documented this issue's broad negative impacts on women. In Canada, the federal government notes that 6-8% of all Canadian women experience violence during pregnancy. Statistics Canada has ample data outlining the societal impact of the issue on the country.

Elusive solutions

But solutions to this issue have proven to be elusive, in no small part due to the politics that surround reproduction. Part of the Canadian story on this dates back to 2007.

In that year, in response to the murder of Liana White, former Conservative MP Ken Epp tabled bill C-484, “An Act to amend the Criminal Code (injuring or causing the death of an unborn child while committing an offence)”. In light of the White case, Epp argued that the bill enacted a necessary measure to provide criminal justice for the loss of a pregnancy that a woman had chosen to carry to term.

Concerns over abortion rights

But Epp's bill raised red flags for reproductive choice rights advocates, who opposed it because they felt it could stymie abortion rights given that the legislation could be interpreted as conferring personhood rights upon a fetus, particularly in light of the landmark Dobson ruling, which deemed a woman and a fetus legally the same person. The bill failed. 

In 2015, Conservative MP Cathay Wagantall introduced Bill C-225 after another high-profile murder of a pregnant woman, Cassandra Kaake, hit the news. Bill C-225 had many similarities to C-484, so it was opposed for similar reasons. Specifically, the Abortion Rights Coalition of Canada (ARCC) raised concerns about this bill's inclusion of a new term, "preborn child," again because they felt this could confer personhood on a fetus. C-225 also failed.

A path forward?

However, ARCC's statement on C-225 also suggested that the organization could support a different measure that might provide some deterrent for violence against pregnant women, without restricting access to abortion. That support was conditional upon the measure being presented as a standalone, narrow, precise "aggravating circumstance" provision that could be used when sentencing persons convicted of committing a violent crime against a pregnant woman. This measure had been included in C-225, but amongst its other provisions, not as a standalone item. It had also been introduced as a standalone provision in bill tabled by a federal Liberal Member of Parliament in 2008.

In their rationale for supporting a standalone measure to this effect, ARCC argued that it could be beneficial stating, “because pregnant women are more vulnerable to violence and abuse than non-pregnant women, they fit into the reasoning for aggravating factors. To be clear, it’s not because they have another “person” inside them – the clause relates only to a crime against a pregnant woman, not her fetus, so does not carry any risk of granting fetal personhood….However, if it might help give some redress and comfort to victims and their families, ARCC would be willing to support an aggravating circumstances clause, but it must be separated from C-225 and presented as a standalone bill.”

So fast forward to this year, when Cathay Wagantall was afforded yet another opportunity to have a bill read in Parliament. 

Wagantall had a choice to make.

If the end goal was to provide some measure of justice in recognition of the loss of a desired pregnancy due to violence and to deter such crimes in the future, the failure of bills C-484 and C-225 suggested that the legislative approach those bills took wouldn't succeed. But ARCC's stated support of creating a narrow "aggravating circumstance" sentencing provision offered another path by providing a measure to protect pregnant women with certainty that it couldn't be used to erode abortion protections.

So, this year, Wagantall tabled Bill C-311, which did precisely what ARCC suggested as part of an alternative path forward in its past criticism of Bill C-225. Bill C-311's concise text is explicit. It seeks solely to amend Paragraph 718.‍2(a) of Canada's Criminal Code by adding the following after subparagraph (ii.‍1):

(ii.‍2) evidence that the offender, in committing the offence, abused a person whom the offender knew to be pregnant,

(ii.‍3) evidence that the offence caused physical or emotional harm to a pregnant victim.

Bill C-311 includes no language that changes access to abortion in any way, shape, or form. It creates no new criminal offenses at all. It states that if someone is convicted of a crime against someone they knew to be pregnant, or that crime caused physical or emotional harm to a pregnant woman during the commission of a crime, then a judge should consider these circumstances in sentencing. 

You don't have to take my word for it. You should judge for yourself by reading the bill's full text here. 

The bill aims to provide a deterrent towards violence against women and provide a measure of justice to people who have lost wanted pregnancies due to violence, all while not straying into any territory that could restrict access to reproductive health services.

Wagantall expected this bill to pass since C-311 explicitly stuck to what ARCC had suggested they could support.

Political fallout

It turned out that she was wrong.

In a paper entitled "Six Reasons to Oppose Bill C-311", ARCC reversed its position regarding the "aggravating circumstance" provision, stating that it was redundant. They made this argument even though the outcome of certain relevant cases in Canada may not have considered pregnancy in sentencing. 

For example, in the R. V. Cunningham appeal (2023 ONCA 36 (CanLII) | R. v. Cunningham | CanLII), the appeal court judge states (in paragraph 34), "The trial judge did not address the significance of domestic violence, including the fact that the victim was pregnant with the respondent's child, as well as that the attack represented an obvious desire to kill her to solve his own problem of unexpected parenthood." Arguments like this suggest there wouldn't be any harm in passing the provision outlined in Bill-311, but instead, it could accomplish some good.

In their rebuttal paper, ARCC made several good points about other measures beyond what Bill C-311 proposed to stop violence against pregnant women. But at the same time, ARCC also failed to argue why the measure C-311 proposed should be excluded from this broader toolkit and, more importantly, why explicitly adding pregnancy as an aggravating condition for sentencing wouldn't help deter violent crime.

Instead, ARCC and the federal Liberals have hinged most of their opposition to the bill on the previous record of its sponsor. Instead of entertaining the possibility that Wagantall could do something positive to protect women, they shit all over her. Specifically, instead of taking an evidence-based approach and outlining exactly how a bill that doesn't create a new criminal offense or discuss fetal personhood would limit abortion rights (and was previously introduced by a federal Liberal MP), they chose to attack Wagantall's choice of language in describing why she felt there must be a way to get an additional measure of justice in cases where wanted pregnancies are lost due to violence. 

I don’t understand why they are taking this approach.

Some critical context on that point: I have never supported any measure that sought to erode access to reproductive health services. 

In fact, for my entire time in office, I have supported work that strives to protect these rights. My record on this matter is such that I have been the target of things like graphic anti-abortion leaflet campaigns in my riding. But at the same time, I also work to protect and remove barriers for women who choose to bear children. I have never viewed these as mutually exclusive goals. I want to think that the majority of Canadians wouldn't, either.

In that spirit, I reviewed C-311 and found that it could bring more protection to women and justice for losing a wanted pregnancy without restricting access to reproductive health services. I also judged the position paper from ARCC on its merits, and the same for speeches made by opposition members in the House. While they offered additional measures that could complement bill C-311, they presented no solid rationale as to why Parliament should reject a solution they recently supported themselves.

The cost of the response

Rather than approach bill C-311 as an opportunity for good or present reasoned arguments against the bill, ARCC and some members of the Liberal Party of Canada have opted instead to work against the passage of C-311 using a politically expeditious but unmoored narrative that the bill claims to do something it flatly does not - restrict access to abortion. 

This choice of response opens the door to negative consequences. First, it risks eroding the non-partisan credibility of advocacy groups who strive to protect reproductive rights by seeming incapable of considering a good policy that someone from their traditional political flock doesn't initiate. Second, the outright burning of the bridge that C-311 offers sends a clear message to anti-abortion activists who might be open to considering policy approaches that still preserve access to reproductive health services. 

That is, don't bother.

There’s too much at stake to let that happen.

My stepdaughter was 17 years old when she chose to give birth to her (beautiful, beloved, and very much wanted) son - albeit outside of Canada in part of the United States where abortion is all but completely illegal. The six years since she chose to have her son have not been easy - she's faced stigma, challenging economic conditions, and the loss of much of her childhood as she has successfully raised her child while building a sustainable future for both of them.

I have to wonder how much easier those years would have been for her and my grandson if some of the political activists where she lives spent a fraction of the time they spent on removing her right to manage her fertility on helping to solve those issues instead. 

At the same time, I wonder if there's any hope for change if political activists and politicians on the other side of the debate burn bills like C-311.

So, we all have a responsibility to make better possible. Outside of political activists' talking points and fundraising strategies, there's a desperate need for leaders to simultaneously deliver better protection for women, protect reproductive health rights, and make it easier for women to bear and raise children. We should be open to entertaining solutions that address all of these issues at once, regardless of their origin. 

That's because the reality is that even today, pregnancy and childbirth still carry risks. The conditions women consider when deciding to have a child still include maternal death, if they'll have support to cope with postpartum depression, increased levels of abuse and domestic violence, long-term health challenges, the trauma of miscarriage, and social stigma. If they survive the pregnancy and childbirth, women still bear most of the responsibility for child-rearing. Women face all these challenges knowing that the availability of flexible forms of affordable childcare is limited and that pay equity is still a real issue.

By presenting a new tool to help address one of these issues, Bill C-311 admits that we have insufficient societal responses to address these risks. It's certainly not the be-all and end-all to addressing violence against women, but it's a step in the right direction to bring women more protection and equality. If ARCC and Liberal politicians oppose the bill, they should be able to explain why, on the balance of its merits, they want to deny the tool that it offers. To date, they haven't done so.

So Cathay Wagantall should be congratulated for offering C-311, not condemned for presenting it. If there is to be opposition to bill C-311, it should be a debate on the bill's merits alone. Support for the bill acknowledges that Parliament still has a lot of work to do to better protect and bring equality of opportunity for women, including those who have wanted pregnancies. And it also means that both sides of this traditionally polarized debate shouldn't see every person as an adversary on everything, all the time. On that front, if there’s any hope to be had, there should be evidence of it in Parliament’s approach to C-311.

I choose to be optimistic.

My colleagues in the House of Commons can change the game by taking the courageous path and joining me in voting in favour of bill C-311, better politics and more protection for women.

(Respect and love to my stepdaughters for their input into this piece, in whose honour it was written. I love you both.)