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Abortion Law and Equity


Anthony J. Fejfar, J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

I am Pro-life Democrat on abortion. I generally agree with the

Catholic position that abortion should be illegal in all cases. At the same

time, however, I must admit that it is troubling that so many people, who

otherwise seem to progressive when it comes to social justice are Pro-choice

on abortion. The chief problem seems to be a concern with protecting the

mother’s life as well as that of the unborn child. If both the mother and

unborn child are destined to die, there seems to be an argument that the

mother’s life should be saved at the expense of the unborn child, if both

cannot be saved.

The other argument is that abortion is necessary to stop children

being born with major birth defects. I find this troubling. I believe in the

position which I describe as Catholic Reincarnation. With the help of the

Holy Spirit between lives many of us reincarnate, attempting to transcend

Karma with the power of Christ. It has been written by several authors who

write about reincarnation that many very good people take on physical and

mental handicaps in a life so as to develop themselves cognitively and

spiritually. It seems a shame that any of these brave children should be

aborted and not given a chance to live their lives fully.

Additionally, some argue that it is wrong for persons with particular

religious beliefs to impose their views on others. It is argued that this

violates the social compact and freedom of religion. I respect this argument

although I don’t like the result.

So, in an effort to meet the above objections and still come up with

a Pro-life position, I propose the following position: Abortion at law is

outlawed, except to save the mother’s life, and, abortion by an Federal

Court order in Equity, based upon extreme need, where there is not adequate

remedy at law, is allowed. Some might consider this a Pro-choice

position, but I consider it to be Pro-life.

Now, there are two objections which can be raised. First, why save

the mother’s life, when she could be a saint/martyr, dying with her child?

The second objection is, why use Equity?

With respect to the first objection, I argue that everyone, including

a mother has a right of self-defense. I argue, for example that if a truck was

coming straight at a woman, out of control as a result of the driver having an

epileptic seizure, with the driver’s foot involuntarily full down on the gas

pedal, that the first woman, if she could not move, would have a right to use

a rifle to shoot the driver to force her to swerve out of the way. An even

tougher version of this is a 3 year old child behind the wheel of the truck,

rather than an adult. Even in this case the woman has a right of self-

defense. In this tougher case, it may be that a woman would elect not to

shoot the child driver having the epileptic seizure because she emotionally

just couldn’t do it.

By analogy then, a woman would have a right, as a matter of self-

defense to have an abortion to stop the “truck” of the growing child from

“killing” her.

With respect to the Equity argument, it is asserted, following the

work of Jesuit philosopher, Bernard Lonergan, that the world is too

complex and changing to be sure that linear rules will be able to

appropriately fit every relevant circumstance. Put another way, if we want

a to make a rule as permanent as possible then we should allow for an

equitable exception as a safety valve, otherwise, ten years from now some

law professor will come up to an exception which everyone agrees is valid,

and the statute will become unconstitutional again, bringing with it great

social unrest.

Finally, as a parting note, I would like to address the issue of why it

is important to protect the unborn child from the moment of conception.

Rather than use a religious argument I will use classical philosophy which is

of course pagan. Aristotle argued that before anything mortal exists in act

it must first exist in potency. Thus, the acorn of an oak is in potency to

become an oak tree in act. Similarly, the human fertilized ovum at the point

of conception is in potency to become an adult human being. It is perfectly

plausible that the legislature could find value in protecting human life in

potency at the point of conception in order to promote human life in act.