Ken Epp's Big Con

New kitteh mama JJ, over at unrepentant old hippie, hauls dissembling Con MP Ken Epp out to the woodshed for a proper thrashing.

Epp is the sinister dissembler whose private member's Bill C-484 pretends to protect wanted fetuses from assault. In actuality the bill is an assault on the ever contentious right for women to choose whether or not to bring a fetus to term. On its introduction certain no-choice advocates heralded the bill as the 'kicking abortions ass bill'. They were not wrong, that is the true intention of the legislation. They have only backed away from that position because that pig ain't got wings, it would not fly with the actual opinion of the Canadian public. But Epp is not one to retreat from the sales floor, he is busily polishing that turd, getting it really shiny and hoping it will sell.

Let's just deconstruct his opinion piece in the Ottawa Citizen shall we.

There is something seriously wrong with our system when the so-called "right" to end a pregnancy takes away another pregnant woman's right to have her wanted baby protected in law.

No Ken, there is something wrong with our system and with our governing party when they fib to the public. Exercising bodily autonomy, a woman's right to choose is not a "so-called" right, it is in fact a legal right. It is a right that was hard won, though it is unpopular with certain regressive elements of society. It is as important as a woman's right to vote, which was also unpopular with the same constituency Mr Epp would have chosen to serve lo those few decades ago. The right to access safe abortion services in no way reduces or hampers the rights of any other woman to choose to carry her fetus to term and deliver a baby. Bill C-484 does nothing to protect a "wanted baby". Bill C-484 is the McGuffin Bill, a red herring. Rejecting this sad little sop to the mouth breathing zygote zealots does not in any way take any right away from a woman who makes the choice to have a child. Your opening supposition is a lie sir. Women and their wanted fetuses are protected from violence, protected by existing law.

But that is exactly where we have arrived in the debate surrounding my private member's Bill, C-484, the Unborn Victims of Crime Act.
In drafting this bill, I was very specific to my legal advisers that I wanted to inoculate this legislation against the abortion question and cases of harm caused by the pregnant woman. The legal drafters did this. C-484 applies only in the commission of an offence against the woman, and "for greater certainty" there is an explicit exclusion for consensual termination of pregnancy and acts or omissions by the pregnant woman. A constitutional expert from McGill University has given me a legal opinion attesting to the bill's constitutionality.

Is Mr Epp actually contending that without passing his bill women will be somehow stripped of protection from assault? And yet he can claim "C-484 applies only in the commission of an offence against the woman". Well that's redundant. There are already perfectly good laws on the books that make violence against any person a crime. If C-484 addresses only an offence against the woman, then who and what is the "unborn vicitm" character doing in the title? Why is the bill rife with references to some imaginary person when Epp purports it to address the actual person, the woman? Epp is talking out both sides of his mouth and his unseemly attempts to obfuscate the point are tissue thin.

Yet claims that have no basis in fact continue to be levelled against C-484. A popular criticism is that supposedly similar laws in the United States are used to "punish" and "police" pregnant women. I have done an extensive analysis of the U.S. situation, and my report which refutes these alarmist and misleading claims is posted at: Ken Epp US Cases.

Oh. Right then, let's have a look shall we.

Forbidden
You don't have permission to access /admin/assets/USCASESE1.pdf on this server.

Gosh Ken, isn't that grand. Your special super sleuth work and denial paper is right there but we can't look at it. I guess we'll just have to take your word for it. After all it would be alarmist and misleading to presume that there is a sudden and vital need for a law that "protects" unborn persons from crimes perpetrated against the women carrying these little victims. Or perhaps not, let's have a peek at some of the notions you claim to have debunked. Here's a piece that zeroes in on the problem with your bill.

Legal rights conflict

In Canada, women have guaranteed rights and equality under our Charter of Rights and Freedoms. Persons do not gain legal status and rights in our society until they have completely exited from the birth canal, alive (as per the Criminal Code, Section 223[1]). This means that Epp's bill conflicts directly with the Criminal Code, because it assumes the legal personhood of non-persons under the law. Further, the bill tries to amend Part VIII of the Criminal Code, “Offences Against the Person and Reputation”; but since the fetus is not a legal person it cannot rightly fall under this section.

The Supreme Court has ruled that a woman and her fetus are considered "physically one” person under the law (Dobson vs. Dobson), and that all rights accrue to the woman. If we give any legal rights to a fetus, we must automatically remove some rights from women, because it’s impossible for two beings occupying the same body to enjoy full rights. If we try to “balance” rights, it means the rights of one or both parties must be compromised, resulting in a loss of rights. Legally speaking, it would be very difficult to justify compromising women’s established rights in favour of the theoretical rights of fetuses.

Tha Abortion Rights Coalition of Canada has quite a few interesting points to make about C-484. But I'm quite sure Mr Epp has anticipated those arguments with his steely intellect and manly prayers. Or perhaps he prefers to twist the facts to suit his cause.

Misrepresentations of Supreme Court rulings have also been used to discredit Bill C-484. When the Supreme Court has said that the fetus is not a "person," it has simply been acknowledging the law as it stands today. The Supreme Court has never said that the fetus ought not to be given some protection in criminal law. In fact, it has said that Parliament has a legitimate interest in the protection of the unborn child and that it is not up to the courts to figure out how to do that, it is up to the legislators.
Bill C-484 is an attempt to provide such protection in one very narrow circumstance - when the unborn child is injured or killed when the mother is the victim of a crime.

Well shucks that is very narrow, isn't it Mr Epp. But when it comes to misrepresenting the Supreme Court of Canada, I really do think it would behoove you to read the decision in Dobson v Dobson. Here are a few choice quotes:

However, unlike the courts, the legislature may enact legislation in this field, subject to the limits imposed by the Canadian Charter of Rights and Freedoms.

Which is not quite so emphatic as you would suggest Mr Epp. Note also that it confines such legislation to the limits imposed by the charter. Further, upon the passage of such legislation, regardless of your McGill expert, the courts would then rule on any challenges to this new law and perform their constitutional role in interpreting such laws.

The actions of a pregnant woman, including driving, are inextricably linked to her familial role, her working life, and her rights of privacy, bodily integrity and autonomous decision‑making. Moreover, the judicial recognition of this cause of action would involve severe psychological consequences for the relationship between mother and child, as well as the family unit as a whole. The imposition of tort liability in this context would have profound effects upon every pregnant woman and upon Canadian society in general. Such after‑the‑fact judicial scrutiny of the subtle and complicated factors affecting a woman’s pregnancy may make life for women who are pregnant or who are merely contemplating pregnancy intolerable. The best course, therefore, is to allow the duty of a mother to her foetus to remain a moral obligation which, for the vast majority of women, is already freely recognized and respected without compulsion by law.

Given the preceding, who is misinterpreting the court Mr Epp? The circumstances of the case are different but the problem is the same, separating woman from fetus in a legal sense opens a Pandora's box of potential litigation and impinges directly on the rights, autonomy and freedom of a pregnant woman, regardless of her intent to deliver or not.

So why do the opponents of C-484 resort to scare tactics and misrepresentations of the law to make their case? Why are they so afraid of a law that would punish a criminal for intentionally harming or killing an unborn baby who is wanted and loved by its mother?

And there in lies the rub Ken. Your law is posited on a test of a potential mother's intentions and love. An argument could be made that a woman who intends to have an abortion, or give up her newborn for adoption, is not protected under your law. This flies in the face of Charter rights to equal protections under the law.

The answer was revealed when an outspoken opponent of C-484 was quoted recently in the media: "If the fetuses are recognized in this bill, it could bleed into people's consciousness and make people change their minds about abortion."
So they are opposing this bill because it recognizes some value in the unborn child (in that it can be the victim of a crime) which might lead to some Canadians changing their minds about abortion (which also deals with the unborn child)

As a Member of Parliament it would behoove Mr Epp to argue in good faith. While some of the supporters of C-484 are bereaved family members who have been directly affected by violence against their loved ones, the vast majority of support for this bill is coming from conservative Christian groups. Even within those groups there is a wide range of opinion, emotion and rhetoric. It would be unfair for me to pick a quote from someone and cast it as the representative opinion of all that support the bill. Mr Epp has selected one person's opinion and ascribed it to all who oppose his effort. That is unworthy of a representative of the Her Majesty's Government.

In my opinion and in the minds of rather a few people, men and women, your law is an attempt to create a wedge against the right to bodily autonomy. It has little or nothing to do with violence and everything to do with a first step toward rolling back the right to safe and legal abortion. This is not about changing the minds of supporters of a woman's right to choose, it is about changing the law and inflicting the opinions of those who would deny and quash such rights.

But how is that a justifiable reason to oppose this bill? Is it right in a free and democratic society to try to control how and what people think? If people of their own free will decide to rethink their position on an important issue, why should we try to suppress that, especially if it means sacrificing in the process something which in and of itself is just and good and supported by a vast majority of Canadians?

A free and democratic system exists by the ebb and flow of ideas and opinions Mr Epp. Christ man, take an elementary civics class you charlatan. Every hour of every day, vying factions and interests attempt to control and sway opinion. Just as you are doing with your opinion piece and the endless appeals to emotion rather than reason that you prefer as the tactic to support your position. People are always free and encouraged to examine their opinions and change them in the face of new information or a persuasive argument.

As for your notion of sacrificing something just and good, I will put it forward that attempts to sway opinion through veiled laws and emotional subterfuge are neither good nor just, sir. The sacrifice is only your precious and suspicious law. Perpetrators of violence against women, pregnant or otherwise are subject to the penalties that exist in the Criminal Code. The temper of the arguments around this bill are indicative of the fact that you do not enjoy the support of the vast majority of Canadians. To claim otherwise is a naughty fib. Naughty fibs make baby Jesus cry, you wouldn't want that Mr Epp. And in the interst of transparency, accountability and honesty, why is it that none of the links attached to the domain kenepp.com are allowing visitors? Something to hide Ken, or is the vast majority of Canada not playing along with your charadde?

Even if people do start questioning abortion, it does not necessarily follow that they will change their minds about whether a woman should have the freedom to choose that option. What it means is that pro-choice advocates will be in a position of having to justify abortion without relying on the illusion that the fetus is absolutely worthless. They will need to defend the view that, in spite of the unborn child being recognized as something of value, the woman's interests are paramount.

Mr Epp, you are not in a position to state the argument you oppose in your own terms. Again, we return to the issue of good faith. While there are likely some people that see no value or worth in a fetus, that is by no means the opinion or feeling of the vast majority of pro-choice supporters. Most everyone I know recognizes and many have personal experience with the incredibly difficult choice that terminating a pregnancy represents. And that is specifically because of the value and potential that the fetus represents. And even still, despite the pain and the anguish, we defend and will continue to fight for the right of women to make difficult decisions because the rights and interests of the woman are indeed paramount. You are a Member of Parliament sir, underhanded and dishonest treatment of the issue at hand serves neither you nor your supporters well.

In fact, Chief Justice Brian Dickson, in the 1988 Supreme Court Morgentaler case dealing with consensual abortion, talked about the necessity of "balancing" the "interests" of the unborn child and the mother: "Like Beetz and Wilson JJ., I agree that protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of women a major factor, is clearly an important governmental objective."
If the Supreme Court has ruled that the interests of the child need to be taken into consideration in the context of consensual abortion, how much more so when the woman has not chosen abortion?

Well Mr Epp, you have moved beyond the edges of honesty here. You have taken a sentence entirely out of context and stood it up like a mighty prop for your argument. The notes from the case you mention can be found on Lexum. your quote is snipped from page 75, the entirety of the ruling exceeds 180 pages. Here is a little more of Chief Justice Dickson's decision, the sentences immediately following the quote you pulled out of this massive document and attempted to recast in the absence of context.

As the Court of Appeal stated at p. 366, "the contemporary view [is] that abortion is not always socially undesirable behavior."

I am equally convinced, however, that the means chosen to advance the legislative objectives of s. 251 do not satisfy any of the three elements of the proportionality component of R. v. Oakes. The evidence has led me to conclude that the infringement of the security of the person of pregnant women caused by s. 251 is not accomplished in accordance with the principles of fundamental justice. It has been demonstrated that the procedures and administrative structures created by s. 251 are often arbitrary and unfair. The procedures established to implement the policy of s. 251 impair s. 7 rights far more than is necessary because they hold out an illusory defence to many women who would prima facie qualify under the exculpatory provisions of s. 251(4). In other words, many women whom Parliament professes not to wish to subject to criminal liability will nevertheless be forced by the practical unavailability of the supposed defence to risk liability or to suffer other harm such as a traumatic late abortion caused by the delay inherent in the s. 251 system. Finally, the effects of the limitation upon the s. 7 rights of many pregnant women are out of proportion to the objective sought to be achieved.

When it comes to balancing of rights and determining whose interests are "paramount", Chief Justice Dicskon is not exactly playing your tune. Be aware Mr Epp, the Google is a vast and fearsome tool when it comes to investigating partisans, dissemblers and fools.

If the Supreme Court has ruled that the interests of the child need to be taken into consideration in the context of consensual abortion, how much more so when the woman has not chosen abortion?

By your flimsy standards, the Supreme Court has also ruled in agreement with the Court of Appeal that abortion is not always socially unacceptable, that in fact a woman does have the right to a safe and legal access to the procedure. Your context free assertion is not what you claim it to be. Let me play by your rules Mr Epp. Here's a couple quotes from the very same Supreme Court decision.

On the other hand, the Crown conceded that the Court is not called upon in this appeal to evaluate any claim to "foetal rights" or to assess the meaning of "the right to life". I expressly refrain from so doing. In my view, it is unnecessary for the purpose of deciding this appeal to evaluate or assess "foetal rights" as an independent constitutional value.

Thus, Parliament itself has expressly stated in s. 251 that the "life or health" of pregnant women is paramount.

Gosh that kind of cherry picking is fun. Of course the ruling at hand does actually support the right to safe and legal abortion on demand.

In the case of unborn victims of crime, there is no balancing act necessary because there is no "conflict of interests." The killing of the woman's unborn child is being forced upon her. Her "interests" and her child's "interests" are the same. And that is how the abortion debate differs from the issues raised with Bill C-484.

In the broadest and most diffuse sense this is almost a valid argument though it does poison the well. Introducing the notion of personhood for a fetus and ascribing it full rights introduces a world of potential conflicts of interest in other scenarios. Not the least of which is in the area of a woman's right to abortion, autonomy and self determination.

Pro-choice advocates haven't had to defend their position in terms of a "conflict of interests" of two entities, each with value, or defend the view that the woman's interests are paramount. But it is the only intellectually honest way of framing the abortion debate. The argument that the fetus is nothing more than an appendage of the woman or worthless tissue, or a "parasite" according to one activist, is scientifically and medically untenable.

The only intellectually honest way... coming from a politician. It is to laugh. Pro-choice advocates and women have had to confront the conflict of interests, desire and countless other factors that weigh on the decision to carry a pregnancy or terminate it. If Mr Epp had the least interest in intellectual honesty, he would refrain from infantilizing his opponents and reducing their positions, reasoning and judgement so very dishonestly. To characterize all pro-choice opinion by framing it with quotes from one or two radicals is no more honest than portraying all anti-abortion advocates as religious lunatics that condone, support and agree with domestic terrorism, the murder of physicians and the arson and bombing of clinics.

However, until a fetus is viable, it can not reasonably be considered a person. As Epp himself says, "Is it right in a free and democratic society to try to control how and what people think?" And yet here he is declaring that there is only one intellectually honest way to examine the issue and that it is only from his personal slant. If an individual is raped and impregnated, who on Earth does Ken Epp think he is declaring that it is unjustifiable for that woman to view that fetus as a parasite? And if, as Epp pretends, this stealth legislation is only concerned with the results of violence, why is he dwelling so much on the issue of abortion. It strikes me as dishonest.

And as far as the mother who wants the baby is concerned, it is callous and offensive. And as far as society is concerned, it sends the wrong message about the value of human life, regardless of whether we afford that human life personhood status or not.

Bullshit. It is callous and offensive to use the emotions of those who have been victimized, women and their families, to sneak a piece of dishonest legislation through the house of commons. Mr Epp, you do not speak for all of society. Mothers who want their babies, pregnant women that do not want to have babies, women who are sterile, use birth control, practice celibacy... all are entitled to equal protection under the law. Violence against any individual is a crime. That is the message about the value of human life in context. Bootstrapping a wedge issue into the law is an act of dishonest pandering and an insult to the intelligence of the Canadian public.

The irony is that for years pro-lifers have been accused of trying to impose their views on others. The opponents of C-484 are now attempting to impose on women who want to be pregnant and want to love and protect their babies the view that the child in her womb is unworthy of protection in criminal law, unworthy of any amount of respect at all to the extent that a criminal can brutally attack that mother's child with a fist or a boot or a gun or a knife or a sword and face no consequences for killing what is so dear to her.

Mr Epp, that is a lie. Opposing C-484 is in no way an attack on women who want to have babies. Opposing C-484 in no way condones violence against those women or any other woman. Quite simply, opposing C-484 is the sensible response to dishonest manipulation. Opposing C-484 imposes nothing on anyone. C-484 fixes a problem that doesn't exist and your continued and dishonest appeals to emotion are unworthy of a Member of Parliament. It will be a banner day when you relinquish your seat Mr Epp, you don't deserve to sit in the people's house. And get an editor for heaven sakes, that is an appalling sentence.

C-484 remedies this current injustice in such a way that maintains the choice of the woman who chooses to end her pregnancy of her own free will. To oppose this bill is to stand in defence of only those pregnant women who choose abortion. Let us not abandon those pregnant women who choose life for their babies.

C-484 fixes what isn't broken. There is no such current injustice. When a villain uses a fist or a boot or a gun or a knife or a sword against a woman, it is a serious crime. There are punishments within the law for the perpetrators of such violence. C-484 does nothing at all to protect either women or their fetuses, it is a sham built on lies and false premises supported by emotional manipulation. C-484 remedies nothing and simply exists to install a device by which women can later be stripped of the right to end a pregnancy of their own free will. That is why it is being so fervently supported by the anti-choice pressure groups, that is why it is careful to try and insist on personhood for fetuses.