Canada
3 min

Why gays should worry about policing pregnancy

Our mantra has always been: our bodies, our choices

My friend Pam, who is pregnant with twins, delights in making strangers squirm when she’s out at a bar. She orders alcohol-free beer and drinks it out of the bottle, eliciting glares from other patrons who are convinced that she’s harming her future children.

No one has dared to confront her yet, but if they do, Pam plans to tell them where to go. Because since she’s become pregnant, she’s noticed that random strangers seem to feel entitled to give her advice on everything from fashion to nutrition. Her body has become a source of public debate — one in which she never consented to participate.

If a private member’s bill called the Unborn Victims of Crime Act makes it into law, pregnant women like Pam could find all of their choices scrutinized — and possibly criminalized. Because the bill, sponsored by Conservative MP Ken Epp, would grant legal “personhood” to fetuses, setting a precedent that could significantly chip away at women’s reproductive freedom.

In the United States, similar laws also criminalize pregnant women for activities that could be deemed harmful to the fetuses they’re carrying. And this should make all queers quake in their boots — even those who have no intention of procreating.

The gay and lesbian community has a long history of fighting laws that interfere with consensual activity between adults. Whether this has meant fighting for the decriminalization of anal sex, protesting bathhouse raids, or defending the rights of people to satisfy their kinks, queers have always maintained that people have agency over their own bodies.

We’ve also spent many years debunking policies that purport to “protect children,” but are really used as a blanket excuse to discriminate against the queer and trans community.

In the 1980s, gay activists organized furious opposition to Anita Bryant’s visit to Canada, exposing her Save Our Children campaign for what it was — a blatant effort to repeal legislation in Florida that prohibited discrimination based on sexual orientation.

Epp’s bill uses similar terminology, playing to the genuine outpouring of grief and outrage that the murder of a pregnant woman elicits. Proponents of the bill argue that existing laws do not sufficiently punish murderers for killing both a woman and her fetus. But they ignore the fact that current sentencing provisions do take these kinds of circumstances into account. And given that in Canada, life sentences are generally served concurrently, this bill would make little or no difference in the amount of time that perpetrators spend in jail.

But where this bill would make a significant difference, is in the constitutional rights of pregnant women. Similar laws have been passed in 37 US states, and have led to jaw-dropping instances of pregnant women being thrown in jail for being unable to kick an addiction or leave an abusive spouse.

In a recent editorial in the National Post, abortion rights activist Joyce Arthur wrote, “Under state ‘fetal homicide’ laws, pregnant women are more likely to be punished for behaviours and conditions that are not criminalized for other people, such as drug or alcohol abuse. Women have also been charged or jailed for murder for experiencing a stillbirth after refusing a Caesarean section.

“The worst offender is South Carolina, where dozens of pregnant women with drug abuse problems have been arrested under fetal protection laws, even though they had virtually no access to drug treatment programs.”

While Epp’s bill specifically omits “any act or omission by the mother of the child,” it pointedly doesn’t use the word “fetus.” Instead, it uses the word “child,” which clearly plays to the anti-choice crowd. It also opens the possibility that women’s rights could be placed in competition with the fetuses they’re carrying.

What bad laws like this ignore is the real threat to the health of women and children: domestic violence. Ken Epp’s own website points out that “according to the Canadian Perinatal Surveillance System, women abused during pregnancy were four times as likely as other abused women to report having experienced very serious violence, including being beaten up, choked, threatened with a gun/knife or sexually assaulted.” But despite Epp’s claims, this bill does nothing to address family violence.

As Ottawa blogger and activist Vicky Smallman recently wrote, “Grief, while powerful and painful and often all-consuming, should not be driving legislation.” The Abortion Rights Coalition of Canada agrees, pointing out that the Unborn Victims of Crime “has no rational or evidential basis.” This is awfully like the omnibus crime bill that the Conservatives just managed to ram into law, which raised the age of sexual consent and imposed mandatory minimum sentences for gun crimes for precisely the same reason: to earn voters’ confidence by playing on their fears.

Now that Epp’s bill has made it through second reading, it will go through committee hearings, which will undoubtedly bring every religious fundamentalist out of the woodwork. The queer community has many decades of experience testifying at hearings, and protesting against harmful legislation. This bill has the potential to create a dangerous precedent for state control over our bodies. The battle for queer liberation isn’t only about who and how we fuck. It’s also about standing up for what we know is right — even if it makes some people uncomfortable.