Abortion Law And Equity

Abortion Law and Equity By 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

1

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

2

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 selfdefense 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.

3

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.

4