Abortion is a subject which elicits extremely strong feelings from everyone who puts any thought into it. Pro-choice activists believe that a woman's "right to choose" is absolute, and she should be allowed to "choose" without any limitations whatsoever. Pro-life activists believe that the fetal embryo is a life in and of itself, and that terminating it under any circumstances constitutes murder.

A major division between the two activist camps (pro-choice and pro-life) seems to be the question of what to do when the mother did not voluntarily engage in the activity of risk. My proposal seeks to join the two camps together in a middle-of-the-road compromise which both sides can live with, if they leave their extreme views aside. It will reconcile the hypocrisy of a)considering abortion to be fundamentally wrong and yet, b) allowing it in circumstances of rape and incest.

A human embryo, or fetus, is not the same thing as a viable baby. However, an embryo is a potential life regardless of whether it is viable independently. If "viability" is defined as the ability to remain alive without the assistance of an independent source, then many thousands of people who live with the assistance of life support, respirators,, etc., are not "viable". Yet, society would not allow us to terminate their lives. Therefore, the concept of "viability" is not particularly relevant to the issue of when it is appropriate to terminate a life. The question of whether to terminate an unborn, potential life, whether it is "viable" or not, is entitled to similar, albeit not identical, consideration as whether to terminate any life.

The mother is certainly entitled to "choose". After all, she not only has to carry the baby for nine months, but she is then charged with the responsibility of raising the child into adulthood. Her choice, however, cannot ignore the grave issues of ending a potential human life. If she voluntarily chooses to engage in sexual activity, then she assumes the risk of pregnancy, and her "choice" should be limited accordingly. No one in our society should be allowed to choose to the terminate the life of a fellow human being or even a potential life because they are inconvenient or unwanted. Terminating a potential life for the purposes of birth control fails to give the necessary consideration to the choice of the unborn, potential life. Although the embryo or fetus is obviously not capable of "choosing" for itself, is it not entitled to the assumption that it would choose to live?

While mere birth control is an inappropriate reason to terminate a life, compassion dictates that abortion should be allowed in circumstances involving rape or incest. When the mother has been raped, or is the victim of incest, she has not "chosen" to assume the risk of pregnancy. My proposal is to criminally charge the rapist or incestual father, whose victim has an abortion, with murder.

As a lawyer, I've learned that our criminal justice system has within it certain "legal fictions". The crime of felony murder is an example. If you commit a felony (armed robbery, for example) and someone dies during the crime, you are charged with felony murder even if you did not intend for that person to die (if the store clerk dies of a heart attack, for example). Felony murder carries the same penalties as first degree, premeditated murder. The "legal fiction" allows the robber to be charged with murder even though he didn't actually, physically kill the store clerk.

If a rape or incest victim doesn't feel she can carry through her resulting pregnancy, no compassionate citizen would say she should be forced to do so. However, the abortion is still the unjustified termination of a potential life. Therefore, a "legal fiction" should be used to charge the rapist or incestual father with murder, the same way the armed robber is charged with murder when the store clerk dies of a heart attack.

This proposal will not appeal to those who say "A woman's 'right to choose' is absolutely hers alone" because the proposal doesn't allow for birth control abortions. Nor will it appeal to those who say "One must never terminate an embryo, fetus or life", because it does allow for abortions for rape or incest.

This proposal is an attempt at compromise. It is probably not perfect, but I'm open to suggestions as to how to improve it. It is disturbing how those with the loudest voices, those with rigid and extreme views on either side of the abortion debate, refuse to make good faith attempts to reach middle ground. My hope is that this proposal will initiate productive debate.