Some things are so bizarre that you just couldn’t make them up. Consider a recent ruling by the Ontario Court of Appeal: Dr. Shaffiq Ramji, assuming that his patient Dawn Paxton would not become pregnant (her husband had had a vasectomy), prescribed an acne drug that has devastating health effects on fetuses. Against the odds, a child was conceived, and Jaime Paxton was born with severe birth defects. The Paxtons sued Dr. Ramji on Jaime’s behalf. However, the court declared that Dr. Ramji owed no duty of care to Jaime, since she had not yet been conceived.
This ruling overrides Justice Margaret Eberhard’s 2006 decision that Dr. Ramji did owe a duty of care, but fulfilled it since it was reasonable to assume that Ms. Paxton would not become pregnant. This is a much more sensible approach. The drug’s manufacturers had established protocols to ensure that no fetus would be harmed by the product. This implies a duty not to harm fetuses—already conceived or not—which seems like common sense.
In this instance, reason was defeated by the reductio ad abortionum, employed in cases where even a slight recognition of a duty towards fetuses might be implied. Aiming to protect a woman’s right to choose, the judges decided, “Because the woman and her fetus are one, both physically and legally, it is the woman whom the doctor advises and who makes the treatment decisions affecting herself and her future child.”
This argument is disingenuous, and misses the point. It is generally understood (except, it seems, among judges) that there are necessary distinctions between woman and fetus. For example, smoking while pregnant is doubly dangerous because it damages both the woman and the fetus. Additional warnings are placed on smoke packs because there is another entity being harmed when a pregnant woman lights up.
This is not necessarily a question of fetuses’ personhood—it is simply an admission that the woman is not the only one affected, since the effects of smoking while pregnant remain with the child for the rest of his or her life after birth. The drug company warns its consumers for the same reason. To suggest that a doctor has no duty of care towards the fetus because the fetus and the mother are “one” defies reality.
The judges see this as dangerous logic, since it might lead to the conclusion that the woman has a duty of care towards the fetus. For abortion advocates, it is absolutely forbidden to even suggest this. The notion that Dr. Ramji might have such a duty must be thrown out the window.
With abortion rights in mind, the judges appealed to the one-size-squashes-all argument of “a woman’s right to choose.” It isn’t enough to insist that Dr. Ramji did not act negligently, as Justice Eberhard found. The justice system has to press further, eliminating any duty of care towards the fetus regardless of the lifelong effects caused by neglect. This isn’t the first time that the desperation to protect abortion rights—whether or not they’re under fire—has fatally skewered logic. This sends a message to future Canadians yet unborn: “Take note; we owe you nothing.”
