Legislative Incrementalism:

Regnative Prudence, and Three Pro-Life Issues

Joe Kral, M.A.

Reprinted with permission from Human Life International, www.hli.org

Editor’s note: This article is from four articles that Mr. Kral wrote for Human Life International’s Truth and Charity Forum. They have been edited slightly in order to be updated and for transition.

 

 

Part 1: The Moral Imperative

History has shown that when an injustice is codified into civil law, rarely is it overturned with one piece of legislation. Rather, it tends to be a laborious process in which the injustice must be dismantled piece by piece. In modern times, the civil injustice of abortion is being taken apart by incrementally passing legislation that limits its various evils. This methodology has proven to be the prudential path to take since it has been obvious for some time that the complete reversals of Roe v. Wade and Doe v. Bolton is not going to happen soon.

 

But there is a deeper question to explore here. In his encyclical, Evangelium Vitae, St. John Paul II states that, “In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.”[1] While it is obvious that St. John Paul II states that a legislator “could licitly support” those initiatives aimed at limiting the harm done by the Roe and Doe decisions, the greater question is should the legislator support such legislation if the evil law cannot be completely abrogated?

 

It would seem that St. John Paul II surely does not mean that the legislator could oppose such incremental legislation if the evil law cannot be completely overturned. But what does he say about the need for passing such policies? To answer these questions just posed one must look further in the encyclical itself. St. John Paul II goes on to mention, “If charity is to be realistic and effective, it demands that the Gospel of life be implemented also by means of certain forms of social activity and commitment in the political field, as a way of defending and promoting the value of life in our ever more complex and pluralistic societies…This task is the particular responsibility of civil leaders. Called to serve the people and the common good, they have a duty [emphasis mine] to make courageous choices in support of life, especially through legislative measures.”[2]

 

It is not as if the great John Paul II is speaking in a vacuum; rather his thoughts on the matter have a strong grounding in Thomistic theology. The Great Doctor of the Church also wrote on the matter of a legislator and his duties as he remarks, “As stated above (47, 8,10), it belongs to prudence to govern and command, so that wherever in human acts we find a special kind of governance and command, there must be a special kind of prudence. Now it is evident that there is a special and perfect kind of governance in one who has to govern not only himself but also the perfect community of a city or kingdom; because a government is the more perfect according as it is more universal, extends to more matters, and attains a higher end.”[3]

 

Prudence, then, plays a special role for legislators. This virtue helps them determine which path to take to better ensure the common good. For Aquinas, the legislator has to exercise a different type of prudence than that of the common citizen. This special kind of prudence can be termed as “regnative prudence” and it is the ability to understand that legislators must conform their prudence to act in recognition that they are supposed to have care for the community in mind when legislating.  This is why St. John Paul II states that “they (legislators) have a duty to make courageous choices in support of life…”[4] Since these leaders have the duty to make society a more just place they must act prudently. As he goes on to mention, “But no one (legislator) can ever renounce this responsibility (regnative prudence), especially when he or she has a legislative or decision-making mandate, which calls that person to answer to God, to his or her own conscience and to the whole of society for choices which may be contrary to the common good.”[5]

 

As it stands now, the reality is that it is not possible to ban all abortions in the US at present. As a result, legislators need to think about how they can prudently not only go about saving unborn human life and restoring justice where there has been injustic, but also how to make illegal the evil of abortion. The US Bishops have endorsed the incremental approach in their document Forming Consciences for a Faithful Citizenship when they stated, “Sometimes morally flawed laws already exist. In this situation, the process of framing legislation to protect life is subject to prudential judgment and ‘the art of the possible.’”[6]

 

But what do the Bishops mean by the “art of the possible”? It would seem, given their approach to helping restore a Culture of Life, that, firstly the Bishops recognize that the evils of Roe and Doe are not going to be overturned anytime soon. Secondly, it suggests that they also understand that the full restoration of life is going to be done incrementally as they state, “At times, this process may restore justice only partially or gradually... Such incremental improvements in the law are acceptable as steps toward the full restoration of justice.[7] It is obvious that the Bishops recognize the prudence of incremental legislation in a situation where an evil law cannot be completely overturned since incremental legislation is deemed “acceptable”. But what is meant by this term “acceptable”? The Bishops are not stating that incrementalism is just merely one of many acceptable political approaches trying to topple the so-called abortion right. But rather the term “acceptable” is being used to indicate that it is 1) morally permissible and 2) the moral approach to take in light of the situation here in the United States. This pattern of thought mirrors what St. John Paul II refers to when he writes , “At the same time, certain that moral truth cannot fail to make its presence deeply felt in every conscience, the Church encourages political leaders, starting with those who are Christians, not to give in, but to make those choices which, taking into account what is realistically attainable [emphasis mine], will lead to the re- establishment[8] of a just order in the defense and promotion of the value of life.”

 

Incrementalism is not only justifiable, but also a moral imperative. The simple reality is that since it is far from probable that Roe and Doe will be overturned any time soon, something must be done in order to limit the scope of their evil aspects and at the same time save and protect as many lives as possible. Incrementalism is proving to do just that.

 

Part 2: Heartbeart Bills and Abortion Prohibition Bills

Recently, Ohio Governor John Kasich vetoed what was termed the “Heartbeat Bill” which many pro-life advocates had fought to pass within the Ohio legislature. It dumbfounded many as to why a staunchly pro-life governor would veto such legislation. Was this not his duty to enact legislation that would help usher in a Culture of Life? Was not Kasich’s veto an act that was contrary to this purpose? Is this not contrary to Scripture?

 

Many of these fundamental questions center around the virtue of prudence and, in particular, the prudence an elected official must have regarding passing and enacting such legislation. As discussed above, the virtue of regnative prudence that needs to be employed when a legislator or governor is dealing with such matters where there is disagreement. But to discuss the matter in a little more detail may be needed in order to properly understand exactly what St. Thomas Aquinas was conveying. While many would immediately turn to his masterpiece, the Summa Theologica, to help find the answer, a better approach would be to look at an earlier work of his called On Kingship. It is in this piece where one can see the beginnings of the approach to regnative prudence. Here Aquinas writes,

 

“Therefore, since the beatitude of heaven is the end of that virtuous life which we live at present, it pertains to the king’s office to promote the good life of the multitude in such a way as to make it suitable for the attainment of heavenly happiness, that is to say, he should command those things which lead to the happiness of Heaven and, as far as possible [emphasis mine], forbid the contrary.”[9]

 

Now, this phrase “as far as possible” seems to mean two things for Thomas. Firstly, it would seem that Thomas is alluding to the inability of human law to forbid all vices which he addresses in his Summa Theologica.[10] But the phrase also seems to address whether or not the proper authority has the ability to change the law. He states, “Finally, for the proper direction of the multitude there remains a third duty of the kingly office, namely, that he be solicitous for its improvement. He performs this duty when, in each of the things we have mentioned, he corrects what is out of order and supplies what is lacking, and if any of them can be done [emphasis mine] better he tries to do so.”[11]

 

Here, one can see Aquinas reemphasizing his phrase “as far as possible” and clarifying it to some extent. A clear implication arises from Thomas: if a law cannot be passed for some reason, it may be better not to try. The king, even in Aquinas’ time, could not outlaw everything vicious for various reasons. In today’s situation, states cannot outlaw all abortion procedures because the Supreme Court is not constituted in a way that would allow for Roe v. Wade to be dismantled completely. Therefore, prudence dictates what should or should not be done in order to limit the harm of abortion on demand. This is a fundamental principle of prudent incrementalism.

 

Furthermore, Aquinas’ teaching on this subject is in conformity with Scripture as well. Take, for example, what is said in Proverbs 14: 15-17, “The simpleton believes everything, but the shrewd man measures his steps. The wise man is cautious and shuns evil; the fool is reckless and sure of himself. The quick-tempered man makes a fool of himself, but the prudent man is at peace.” Holy Writ commands that believers be prudent, to take ‘measured steps’. This is consistent with the US Bishops’ teaching on prudent incrementalism when they state, “Sometimes morally flawed laws already exist. In this situation, the process of framing legislation to protect life is subject to prudential judgment and ‘the art of the possible.’”[12] Again, the US Bishops recognize that not every pro-life initiative is going to be possible to pass for various reasons, hence the phrase ‘the art of the possible.’

 

But of course, all of this begs the question, what is a Heartbeat Bill? There have been several proposals throughout the United States. Basically, these types of legislation would prohibit the act of abortion when the fetal heartbeat is detected. No doubt, those advocating for a Culture of Life see this as a pro-life bill that eventually needs to be passed. However, the question is one of timing. Can these types of initiatives survive a federal judicial challenge? It is a simple numbers game and most experts agreed the votes were simply not there to have legislation like this upheld. As a result, the Heartbeat Bill that Governor Kasich was asked to sign was wisely vetoed since it was quite clear that the US Supreme Court was not going to find it constitutional and it would have cost the taxpayers millions of dollars to defend it.

 

But Heartbeat Bills are not the only types of legislation that suffer from this dilemma. Furthermore, such bills such as Texas House Bill 948, which was filed during the 2017 Legislative Session, would outlaw all abortion and even impose criminal penalties against the mother if she intended the death of her unborn child. In addition to the constitutional problems, this bill has the added problem of criminalizing the mother. This is unique since historically speaking the states never charged the mother because she too was seen as a victim of the crime of abortion. Clarke Forsythe of Americans United for Life offers an excellent historical analysis of this phenomenon in an information piece, but it is also important to note that it is common practice that women are coerced. Regnative prudence would also dictate, at least for the time being, not to pass legislation at this moment for the same reasons.

 

Simply, God has given man the gift of reason. It is one of the ways in which man is the Imago Dei. Regnative prudence is a virtue to help those in authority to better rule and pass laws that are for the common good while also recognizing the ‘art of the possible’. In time, our society will achieve the goal of outlawing abortion, until such time however, it is important to note that the approach to the Culture of Life will have to take measured and prudential steps.

 

Part 3: The Dismemberment Abortion Ban

Ever since the Supreme Court of the United States upheld the federal partial birth abortion ban in 2007 some elements of the pro-life movement have taken the next logical step by focusing on the brutality of second and third trimester abortions. This has been done in two ways: 1) through banning abortion at the 20 week gestational mark, and 2) dismemberment abortion bans. As a result, citizens have certainly become more aware of the horrendous cruelty that is involved with late-term abortions. However, there have been some serious questions regarding dismemberment bans. How is the legislator to use regnative prudence in this situation?

 

Recently, Paul Linton, a highly regarded pro-life constitutional attorney who was the former general counsel to Americans United for Life, author, and pro-life public policy expert, released a memorandum[13] in September 2016 that concluded that this type of legislation would be struck down by the current Supreme Court. It is a direct refutation of the memorandum[14] released by Mary Spaulding Balch when she was state legislative director for National Right to Life. This, of course, begs the question of what is the legislature to do when two highly regarded pro-life public policy experts disagree on such an important public policy topic.

 

Much of their arguments hinge on the concept of what is called is known as ‘fetal demise’. And while much of their arguments center on constitutional case law, this portion of the article will explore some of the moral implications of such legislation. Dismemberment bans essentially mandate, without explicitly stating, that the unborn child be euthanized prior to its dismemberment so that he will not feel the excruciating pain. For example, Texas Senate Bill 415 states, “dismemberment abortion’ means an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child’s body to cut or rip the piece from the body.”[15]

 

It is clear that the language of the bill prohibits dismemberment abortion on a living unborn child, but the bill clearly not only allows but essentially mandates that if dismemberment is to be done then the abortionist is to euthanize the unborn child prior to the procedure. In fact, the Balch memorandum stipulates that “Similarly, the Unborn Child Protection from Dismemberment Abortion Act provides protection only when dismemberment is applied to ‘a living unborn child.’”[16] The Linton memorandum also agrees with this assessment, “All of the bills that have been introduced to date prohibiting dismemberment D&E abortions (including H.R. 3515, the federal “Dismemberment Abortion Ban Act of 2015″) have been limited to those procedures that are performed on ‘live, unborn children.’ The prohibitions do not apply if the physician causes ‘fetal demise,’ i.e., death, before he dismembers the fetus.”[17] This is why there has been much emphasis on just how much pain the unborn child can feel during this time. Many experts on fetal development have concluded that the child would feel immense pain during a dismemberment abortion and this has been made apparent by those advocating for dismemberment bans.

 

The question now becomes, how does this bill limit the harm of the Roe v. Wade decision? Many may try to argue that it is more humane for the child to die in this manner than in a procedure where he will experience excruciating pain. However, that argument is morally problematic because the argument is eerily similar to pro-assisted suicide arguments. These sorts of things are said to try to advance the legalization of assisted suicide. Nowhere in Catholic teaching is the idea of mercy killing deemed morally appropriate. So, in essence, in order to argue for the National Right to Life dismemberment ban, one must argue in favor of a morally illicit act such as mercy killing. This obviously is problematic since the pro-life movement also opposes all forms of euthanasia. How can one be consistent if he is to argue for mercy killing of the unborn but then turn around and argue against the legalization of mercy killing for the terminally ill? This type of legislative initiative as currently drafted poses serious problems for the pro-life movement and its legislative allies. For when the time comes that assisted suicide activists advocate for their legislation, some legislators may find themselves in a quandary. They will have to explain why they essentially voted in favor of the mercy killing of an unborn child so that child could avoid severe pain yet oppose legislation that allows for the mercy killing of a terminally ill cancer patient who is a minor at the request of his parents. While this is definitely not the intention of pro-life advocates, this bill nonetheless has this problem that must be addressed and rectified. As a result, until it is properly rectified, regnative prudence should dictate that this is an inconsistent position and untenable as a pro-life policy and as a result should not be passed.

 

Some may try to argue that the real reason for this is to essentially legislate abortionists out of business since many of them do not have the knowledge on how to cause fetal demise prior to the dismemberment. But this is problematic again. Firstly, because of the constitutional issues that Mr. Linton had raised in his memorandum, but secondly, even if it is enacted and enforced it may not put abortionists out of business if they simply learn how to cause ‘fetal demise’ prior to the dismemberment. Thirdly, because it still does not diminish the unintentional problem regarding the previous arguments about mercy killing. Again, regnative prudence would have to dictate that this is not a morally appropriate step.

 

If asked how to solve this problem one may wish to look at how the pro-life movement looks to helping a person at the end of life. It is very clear that mainstream pro-life organizations advocate for the alleviation of pain at the end of life rather than euthanasia. Possibly the same can be said for these unborn children who are facing this horrible situation. The solution may be found in alleviating their pain in this horrible time, by mandating that abortionists provide pain relief prior to the abortion. This would truly put a proper emphasis on fetal pain instead of the utilitarian idea of killing the unborn child prior to dismemberment.

 

The simple truth is that the way the current dismemberment abortion bans are worded makes them prudentially problematic for the pro-life legislator (and movement) to support. As it stands now it would seem that dismemberment bans, as currently drafted, have 3 problems with limiting any harm as presented by the dreadful Roe v. Wade decision: 1) these bills if enacted merely make the mother “feel” better that her child was not in pain while the dismemberment took place, 2) as a result, is inconsistent with pro-life principles since it is a form of mercy killing and therefore a form of euthanasia, and 3) there does not seem to be any other data that suggests that fetal demise caused by any other methods are not painful themselves. While this type of legislation is intended to help usher in a Culture of Life it has unintended consequences that need to be worked out and therefore it needs to be seriously reworked in order to be presentable as proper pro-life legislation. The pro-life legislator knows that mercy killing is unacceptable and regnative prudence should dictate that the legislator demand that pro-life policy experts rework this legislation.

 

Part 4: The Brave New World

On March 15, 2017, Wesley J. Smith published an excellent piece in The Human Life Review entitled “Brave New World is Closer Than You Think”. In his article, he details much of the history surrounding the beginning of life issues that are found within biotechnology. He further explains that while much of the biotechnology issues such as human cloning were hotly debated topics within the political realm ten to fifteen years ago, much of that has cooled to the point where they are hardly spoken of within the various legislatures. He concludes by noting that this ought to be rectified. Mr. Smith is absolutely correct in his analysis.

 

But why exactly? Why must pro-life organizations and pro-life legislators begin to consider bioethical issues within the legislature? These are important questions that should be explored thoughtfully in light of the present day circumstances.

 

Firstly, is the issue of regnative prudence. In order to proceed, the reader may need to recall the  two particular passages from St. Thomas Aquinas’ On Kingship where he describes the duty of a king (lawmaker) as mentioned above in Part 2. Firstly, of important note is how Aquinas describes the duty the authority must do in order to promote the good life of the multitude. The end of the command, in this case law, then is to not only to promote virtue (the good life), but to help the multitude to attain Heaven itself. Secondly, Aquinas also describes the duty of the legislative power to help correct disorder within the community. This means that if a disorder arises that needs to be corrected in order to promote the good life then lawmakers are within their purview to help correct the situation. Otherwise, the lawmaker is acting contrary to his/her duty and not helping people achieve their final heavenly end.

 

 

But one must remember cloning is not the only biotech issue that society is facing. The fertility industry is also largely unregulated as well. It is not unheard that in some cases where surrogacy is involved that if the child is “deemed” genetically unfit the surrogate mother is coerced into an abortion. Furthermore, there is little regulation on how many human embryos can be implanted into a woman. Many states simply rely on the fertility industry to self-regulate this issue. Of course, since there is no law, as a result there are doctors who implant many embryos into a mother. One infamous case of this practice was the case of Natalie Suleman, otherwise known as the “Octomom”. While Miss Suleman kept all of her unborn children, there are cases in which a woman, who is pregnant with more than three children at once, are pressured into what is called selective reduction. This reduction is simply an abortion that reduces the amount of children that the mother is pregnant with. Mandating, by law, that only a certain amount of embryos to be implanted would help curb this problem.

 

But much of the aforementioned is old news. There are even more moral problems that have recently arisen in the biotechnology industry today as well. Recently, it has come to light that geneticists can make a child from three biological [20]. Not to mention the revelation that an artificial womb[21]has been developed, which can eventually be used for good purpose such as letting premature infants continue to gestate so that they may better mature and be physically prepared for life outside of the womb. But it is also likely to lead to other problems such as if it is ever perfected to the point to fully gestate a child from embryo to birth, how do we prevent cases where the child simply becomes an assembly line commodity? Furthermore, what effects will the child suffer from since he/she will never gestate inside his/her mother and will not develop the bond that naturally develops during the entire duration of the pregnancy?

 

Many of the aforementioned bioethical problems stem from two issues: 1) that the sexual act is separated from procreation and 2) children are seen as objects, or, to put it more precisely, property. The reality is that when the sexual act is separated from procreation moral problems arise. While many parents of children conceived through in vitro fertilization may argue these points the truth is that the legal system treats these embryonic children as [22]in the case of divorce or breakup. These children are merely seen as products that were produced in a lab and destroyed with impunity if one of the spouses no longer wishes to have any more children. With respect to cloning, it completely abolishes the need for the sexual act, but furthermore some in the scientific community only see the child as a medical tool for their research. Yet another form of property to be used in unethical research since this research typically destroys the child.property

 

It is time that both legislators and pro-life organizations to be more proactive in lobbying for much needed legislation to address these issues. Both Americans United for Life and the Bioethics Defense Fund have model legislation on the numerous bioethical issues. Simply ignoring these issues is acting contrary to the promotion of the good life as Aquinas states. Failure to bring attention of these issues to legislators who may not know all the ramifications hinders the legislator to correct “what is out of order.” Pro-life organizations need to be aware that legislator has a special duty to society and they have a special duty to the legislators who make laws. Regnative prudence dictates that laws need to be passed to deal with these morally vicious problems.

 

In vitro fertilization has been in existence for 39 years and mammalian cloning for the last 20 years, yet little has been done legislatively to curb the abuses of life that have resulted. While many legislators and pro-life organizations have been overwhelmingly vocal about the tragedy of abortion, many researchers have slipped into vicious habits when it comes to the subject of how to treat human life at its earliest stages because little is spoken about these topics. It is time that the pro-life movement recognizes the need to pass laws that help promote the virtue of justice when it comes to these very numerous bioethical issues. Staying silent, speaking very little, or not lobbying at all on these issues only allows vice to continue in these realms. It is time to help others recognize, through law, that human life is not property. Not only does Justice demand it, Heaven demands it as well.

 

Conclusion

With the recent debacle concerning Representative Trent Franks, it has become obvious that the pro-life movement has much to do when it comes to informing the legislator on what it means to be truly pro-life. While the movement has made tremendous strides in limiting the evil of the Roe doctrine, there are some areas that need to be worked upon. Furthermore, it is vital that many legislators need to acquaint themselves with the necessary cardinal virtues in order to better enact a Culture of Life. Rushing without properly thinking through the various ramifications is contrary to prudence and should be avoided. Again, John Paul II’s advice “to make those choices which, taking into account what is realistically attainable, will lead to the re-establishment of a just order in the defense and promotion of the value of life”[23] needs to be seriously considered by both legislators and professional pro-life activists. It is in this way can society achieve the heavenly happiness that Aquinas spoke about and achieve a Culture of Life.

 

___________________________________________

[1] John Paul II, Evangelium Vitae, No. 73.

[2] Ibid, No. 90.

[3] Aquinas, Thomas, Summa Theologica, II-II, Q. 50, A. 1.

[4] John Paul II, Evangelium Vitae, No. 90.

[5] Ibid

[6] USCCB, Forming Consciences for a Faithful Citizenship, No. 32.

[7] Ibid

[8] John Paul II, Evangelium Vitae, No. 90.

[9] Aquinas, Thomas, On Kingship, Bk. 1 Ch. 4, 115.

[10] See Summa Theologica, I-II, Q. 96, A. 2.

[11] Aquinas, Thomas, On Kingship, Bk. 1, Ch. 4, 121

[12] USCCB, Forming Consciences for a Faithful Citizenship, No. 32

[13] Please see: https://www.texasallianceforlife.org/wp-content/uploads/Linton_DISMEMBERMENT_MEMORANDUM_09_2016.pdf

[14] Please see: https://www.nrlc.org/uploads/stateleg/NRLCConstitutionalityDismembermentJan15.pdf

[15] See Texas SB 415 (introduced version; 85th Regular Session), page 1, lines 9-16.

[16] see Balch Memorandum, page 3

[17] see Linton Memorandum, page 5

[18] See http://bdfund.org/wp-content/uploads/2016/05/CLONINGChart-BDF2014.pdf

[19] See http://www.eggsploitation.com/maps.htm

[20] See https://www.forbes.com/sites/emilywillingham/2016/09/28/controversy-erupts-around-baby-with-three-biological-parents/#46fea8c67cc3

[21] See https://news.nationalgeographic.com/2017/04/artificial-womb-lambs-premature-babies-health-science/

[22] See https://www.womenshealthmag.com/mom/your-rights-to-your-ivf-embryos

[23] John Paul II, Evangelium Vitae, No. 90

 

 

 

     Winter 2018                                                                                                                                        Bioethics in Law & Culture                                                                                                                                          vol. 1    issue  1