Why the Supreme Court didn’t weigh in on fetal rights in R. v. Levkovic

Charlie Gillis on a decision that won’t reopen the abortion debate

Sean Kilpatrick/CP

Surely we can agree that stuffing the body of a baby into a bag and leaving it on an apartment balcony for a building superintendent to find is an abominable act. And that it shouldn’t much matter—legally or morally—whether the child died after, during or just before birth.

Or should it?

That was the question before the Supreme Court of Canada in R. v. Levkovic, the latest gut-wrencher to emerge from the legal vacuum left when Canada’s abortion law was struck down in 1988.

The accused, a former stripper then living in Mississauga, Ont., was charged under Sec. 243 of the Criminal Code, which says:

Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Levkovic’s lawyers argued at trial that the co-existence words “child” and “before” in this context are problematic. Since the 1988 Morgentaler decision, the court has resolutely refused to recognize an unborn fetus as a person with rights that might compete against those of its mother. In Levkovic’s case, medical investigators couldn’t say for sure whether the baby had died before, during or after birth.

So, Levkovic’s lawyers argued, the legislation is unconstitutionally vague: if Levkovic’s baby died before birth, then what they were talking about was a “failed pregnancy” and, under Canadian case law, women have an exclusive right to decide whether to disclose a failed pregnancy.

The trial judge agreed, striking the word “before” from the legislation in a move that ultimately led to Levkovic’s acquittal. But that finding was overturned by the Ontario Court of Appeal.

Today, the Supreme Court found a way to uphold human decency without creating new rights for the fetus (I acknowledge the clanging contradiction of that statement to the ears of anti-abortionists). Sec. 243 is just fine, the high court ruled, because “it is focused on the event of birth;” if the accused knows that child is “likely to be born alive,” then the provision applies.

So it all hangs on what the accused knows about the state of her child, which in most cases will turn on medical evidence. In Levkovic’s case, medical evidence concluded the child was born “at or near to term.” Her case will now go back for a new trial.

I wouldn’t call this a brave decision. Really, it’s an exercise in minimalism, which side-steps the big questions this miserable case raises: at what point during gestation is a fetus worthy of any protection whatsoever? Never? Is it really an attack on the hard-won abortion rights of women to even acknowledge some level of moral obligation of society to the just-about-to-be-born?

You can read here about the steps that led us to this point, and how it sets us apart from such unregenerate socail-conservative strongholds as Sweden the U.K. And here’s my look at the absurdities it produced during the Levkovic hearing at the Supreme Court.

In the end, though, I don’t think anyone really expected the court to use this case to weigh in on fetal rights. It has said over and over—right back to Morgentaler—that such questions are the proper purview of Parliament. And the chances of Parliament tackling this question, with any party in power, evidently rank somewhere around those of Canada winning the World Cup of soccer.

Under the circumstances, it made sense for the court to do the least it could do.