How the defeat of Cassie and Molly’s Law could endanger abortion

by Barbara Maloney

Cathay Wagantall’s Private Members Bill C-225 (Cassie and Molly’s Law) was defeatedby a wide margin (209 to 76) in the House of Commons last week. This means the bill will not be sent to a committee for study and is now dead.

Bill C-225 would have allowed charges to be laid for harming or causing the death of a preborn child while committing a criminal offence against a pregnant woman. Such a law would act as a strong deterrent to committing violent acts against pregnant women, increasing the chances she and her baby could make it safely through her pregnancy. It was a compassionate and common sense response to an all too common problem.

Not a single MP from any party other than the Conservatives voted for the bill. This suggests the vote may have been whipped by leaders of the Liberals, the NDP, and the Bloc, which is odd since Prime Minister Justin Trudeau and the other party leaders have repeatedly argued in favour of women’s reproductive choice. Bill C-225 would have strengthened reproductive choice for women by making it a criminal offence for a third party to intentionally kill a pregnant woman’s fetus (thus terminating her pregnancy) while committing a criminal offence against her – a pregnancy termination to which she clearly did not consent. We are talking here about someone who attacks a woman and takes away her choice by ending the life of the child who otherwise would have been born alive. Nothing could undermine women’s reproductive choice more than that.

My MP, Chandra Arya (Liberal) wrote to me last month saying that he would not be supporting the bill. I had seen comments from other Liberal MPs as well. No doubt, the Liberal MPs were given a set of talking points to use to try to defend their opposition to C-225. But their arguments don’t stand up to scrutiny, which suggests something else was behind their opposition to the bill, as I explain below.

Criticism: C-225 doesn’t address the broader issue of gender-based violence

The Liberal government criticized the bill for failing “to address the broader issue of violence against women.” But why would any MP not support a law that at least partially addresses the problem? No bill ever completely addresses an issue, and so why should C-225 be held to a higher standard than any other bill?

Mr. Arya also told me that “Our government believes that gender-based violence has no place in our society, and we are committed to developing and implementing a comprehensive federal strategy against gender-based violence.” That’s great, and bill C-225 could have been one important part of such a comprehensive strategy. Voting for this bill in no way would have precluded the government from enacting further laws and policies that address gender-based violence. Pregnant women are sometimes attacked precisely because they are pregnant. Cassie and Molly’s Law would act to deter such violence, given the stiff penalties in the bill for purposely causing the death of the woman’s unborn child.

Criticism: C-225 might be challenged under the Charter

My MP also told me the bill “would likely be challenged under the Charter.” Yet, as far as I’m aware, there has been no credible legal opinion by any reputable lawyer arguing that the bill violates the Charter. On the contrary, renowned constitutional expert Eugene Meehan has provided a legal opinion, posted on Cathay Wagantall’s website, defending the constitutionality of the new offences created in the bill.

Most Liberal MPs voted in favour of the government’s bill C-14, Medical Assistance in Dying, even though several lawyers were of the opinion it was unconstitutional. So if the Liberal MPs were not deterred by the constitutional concerns regarding C-14, it is incredible that constitutional concerns were behind their opposition to Cassie and Molly’s Law.

What was the real reason for opposing C-225?

Given C-225 respects the constitution, including the Charter; given it is one concrete way that MPs can help tackle gender-based violence which they claim they want to do; and given it is supported by amajority of Canadians, it seems that MPs’ opposition to this bill stemmed from something else – something they may not have been even consciously aware of.

Which brings us to the issue of abortion.

Fear that C-225 could reopen the abortion debate

My MP told me that this bill could “reopen the abortion debate.” This bill and the abortion issue do have something in common – they both deal with pregnant women and preborn children. But anyone who is truly pro-choice ought to recognize the difference between an abortion which a woman freely chooses, and a situation where a woman has not chosen abortion and is violently attacked by a third-party who wants to kill her and/or her baby and unilaterally takes away her choice to bring her child safely to term.

So how do we account for supposedly pro-choice MPs voting against a bill that would have made it a crime to forcefully end a woman’s pregnancy against her will? Why did these MPs ignore the significant role that the woman’s free choice plays in differentiating C-225 from abortion? Are these MPs not pro-choice after all, but rather pro-abortion, even pro-forced abortion?

I don’t believe so – I don’t believe a majority of our MPs voted against C-225 because they actually believe that a dead fetus is better than a live fetus.

The only remaining explanation is that they voted against C-225 out of fear of what it would mean for abortion if we recognized in law that it can sometimes be wrong to kill a preborn child. They would have been asking themselves, even if only at an unconscious level: if it is wrong to kill a fetus during a brutal attack on a woman against her will, how can we justify abortion, which also kills a fetus?

But as MikeSchouten writing in the National Post points out, there would be no reason for anyone who is pro-choice to fear that C-225 would endanger abortion if they actually believed in their own pro-choice rhetoric: that a woman’s freedom to choose is enough to justify abortion (that is, that the choice of the woman trumps the life of the fetus.)

The defeat of C-225 was in essence, then, a sign that a majority of our MPs do not believe that freedom of choice, in and of itself, can justify abortion. A majority of our MPs could not get past focusing on how C-225 and abortion are alike (preborn child’s death), rather than how they differ (woman’s choice). It was apparently easier for our MPs to deny that it can ever be wrong to kill a fetus – and vote against C-225 – than to be put into the uncomfortable position of having to justify why abortion is not wrong. They are apparently only able to defend abortion if they deny there is any inherent value in the life of a preborn child. They would have had the confidence to defend abortion if they truly believed deep down that the choice of the woman trumps the life of the fetus.

Thus in defeating C-225 for fear it could endanger abortion, our Members of Parliament ended up revealing a lack of confidence in their own ability to defend abortion. If even our supposedly staunch “pro-choice” MPs feel so ill-quipped to defend abortion, then what kind of message does that send about the acceptability of abortion? C-225 itself could never have endangered abortion. The irony is the MPs who opposed the bill might end up doing just that.