Pro-Life Legislative Incrementalism and the Moral Imperative
Joe Kral, M.A.
President, Society of St. Sebastian
Editor-at-Large, Journal of Bioethics in Law & Culture
Bioethics in Law & Culture
Summer 2018 vol. 1 issue 3
Note: This journal article was originally a series of three articles originally published in Human Life International’s “Truth and Charity Forum”. The articles have been formatted, updated, and have been used with the permission of www.hli.org.
St. Peter is not only exhorting the Apostles[ii] when he faced the Sanhedrin in Chapter 5 of Acts of the Apostles, he is questioned as to why he did not stop teaching in the name of Christ as he was previously ordered to do. Peter’s response is ingenious, to say the least; “We must obey God rather than men,” here, but all Christians. At times, one must recognize that when the dictates of man are in conflict with the Creator, it is at these times man is obligated to follow the dictates of God.
In his encyclical, Evangelium Vitae, St. John Paul II recognizes this conflict of civil law and divine law concerning respect for human life. It becomes rather apparent that modern Western society no longer holds a Christian view of freedom or law. In turn, a Catholic view is seen by many as “authoritarian.” As St. John Paul II states,
“At the basis of all these tendencies lies the ethical relativism which characterizes much of present-day culture. There are those who consider such relativism an essential condition of democracy, inasmuch as it alone is held to guarantee tolerance, mutual respect between people and acceptance of the decisions of the majority, whereas moral norms considered to be objective and binding are held to lead to authoritarianism and intolerance.”[iii]
However, it should come as no surprise that St. John Paul II rejects this modern thesis, “The basis of these values cannot be provisional and changeable “majority” opinions, but only the acknowledgment of an objective moral law which, as the “natural law” written in the human heart, is the obligatory point of reference for civil law itself.”[iv] As the encyclical points out, the tradition that the civil law flows from the moral law has long been a teaching of the Church.
Now the question remains, what is one to do if the civil law is not in conformity with the moral law with respect to the right to life? Again, St. John Paul II gives the reader a few answers to this particular question. In section 71 of the encyclical, he states, “Consequently there is a need to recover the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity.”[v]
While St. John Paul II did not directly state it, there is an implication that Catholic universities, especially those that have law schools and public policy programs, should be doing more to educate those students in the proper relationship between the civil and moral law. The simple fact is that no one who has had a Catholic education should be parroting the old pro-abortion mantra that “I am personally opposed to abortion, but I won’t impose my faith on others.”
However, the most direct principle of action concerning the civil law and the respect for human life is the principle of incrementalism. He states,
“A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on…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.”[vi]
In essence, this principle gives a legislator a guide on how to change a corrupted law to be more just.
The concept of the principle of incrementalism is simple. In brief, the principle states the following: 1) that an evil law must already exist, 2) that the proposed legislation must limit the harm of the existing evil law, and 3) that the proposed legislation must lessen the evil law’s negative consequences at the level of general opinion and public morality. But what do these elements mean?
The first element is easy to understand. A legislator must be fighting against some law that is unjust. In the case of abortion in the U.S., one merely needs to know the evil law that exists are the cases of Roe v Wade and Doe v Bolton. But sometimes the absence of law allows a practice to take place as well. So for example, when it comes to human cloning, most states do not have laws that prohibit the practice. The silence of law permits the practice. So, in effect, there is an unwritten law that may need to be fought.
The second element has seen much debate regarding the phrase “limiting the harm done by such a law”. When it comes to the subject of abortion, many absolutists (those who believe the incremental approach to be wrong) try to argue that the term “harm” only refers to abortion. So, for example, legislation that would mandate that a minor girl receive parental consent to receive an abortion would be immoral for the absolutist since it still allows for abortion to take place in certain circumstances. However, this is an overly narrow view of what John Paul II meant by the term “harm.” Abortion can cause all sorts of harm other than just the unjust loss of human life. In the case of parental consent legislation, one must understand that in addition to the abortion practice the family unit has also been dramatically affected as well. In the case of the U.S. Supreme Court’s abortion companion cases, not only did it give a legal right to abortion, it also gave minors the ability to get an abortion without involving their parents. This is a clear violation of the principle of subsidiarity. John Paul II used the word “limit” instead of “abolish” for a good reason hence. The U.S. Catholic Bishops statement on incrementalism,
“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.” 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. However, Catholics must never abandon the moral requirement to seek full protection for all human life from the moment of conception until natural death.”[vii]
What makes the aforementioned quote from the U.S. Bishops pertinent is that the last sentence segues into the third element of the principle; that the legislation must lessen the evil law’s negative consequences at the level of general opinion and public morality. The question that needs to be asked is: how is this legislation going to move society in the direction of the Culture of Life? In seeking the full restoration of justice, law can be a great teacher. Legislation, such as Unborn Victims of Violence Legislation, can be a useful tool in explaining this element. This type of legislation recognizes that unborn children can be the victims of crime. So if an unborn child is killed during a drunk driving accident, then the perpetrator can be charged with a crime (such as manslaughter) against the child. These laws help people see the humanity of the unborn child and make them question the morality of abortion. It is in this way that laws, such as these, help move public opinion away from the acceptance of the evil law.
St. John Paul II understood the reality that law is a great teacher. When civil law is perverted it no longer is a great teacher, but rather an abusive teacher that thwarts the virtue of justice. By no means is one obligated to follow an unjust law. As the Catechism of the Catholic Church states, “If rulers were to enact unjust laws or take measures contrary to the moral order, such arrangements would not be binding in conscience.”[viii]
When this conflict occurs within the law, the law may need to be treated like a student and be guided toward the good. The principle of incrementalism provides this path to restore the order between the moral law and the civil law.
In the wake of the passage of HR 36 (The Pain-Capable Unborn Child Protection Act) in mid-2015, it has become obvious that many in the pro-life movement were not happy with the rape exception language contained within the bill and, as a result, they opposed the entirety of the legislation. The argument regarding the rape exception has been a recent phenomenon when it comes to the making and passing of incremental legislation.
The basic argumentation by some pro-life leaders was that HR 36 essentially discriminated against those unborn children who were conceived in rape and was a violation of the principle of solidarity and therefore was unacceptable. Intellectually, the argument can be traced to a book published a few years ago titled, Changing Unjust Laws Justly, by Colin Harte. In his work, Harte makes the argument that in order to properly change an unjust law by incrementalism, the proposed policy must not violate the principle of solidarity. Therefore, Mr. Harte would find legislation such as banning tax dollars to fund all abortion to be morally acceptable. Those bans, which would only fund abortions in the cases of rape, incest, or life of the mother, for him would be unacceptable. This outlook, of course, would translate into other incremental legislative endeavors such as parental consent initiatives hard to support according to Harte’s theory since it would, in essence, allow some preborn children to die by consent of the biological grandparents.
The real question is—does the rape exception make an incremental bill unacceptable? A closer look at the argument shows some problems within their argumentation. For example, these pro-life leaders cite the rape example as a form of unjust discrimination, but even if the bill did not have any exception it would still discriminate against those unborn that are younger than 20 weeks gestation. This is not to say that those who oppose the rape exception do not have an argument with merit. In fact, they do and efforts do need to be made to ensure the best possible bill comes out. The simple reality is that a child conceived by consent or not is still a human being made in the Imago Dei.[x]
However, St. John Paul II understood that when an evil law could not be completely abrogated, it had to be limited. He is clear on this and the US Catholic Bishops agree,
“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.” 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. However, Catholics must never abandon the moral requirement to seek full protection for all human life from the moment of conception until natural death.”[xi]
In many instances, the US Bishops have definitively given their interpretation of what St. John Paul II meant by the principle of incrementalism. They admit that these incremental measures may only partially restore justice. Except for a few states, at present all unborn children beyond the 20-week gestation mark can be aborted for any reason. HR 36, if it was passed and enacted, would have effectively made illegal the vast majority of late-term abortions throughout the nation. That is progress. While it is obvious that it does not outlaw all abortions, it is moving towards the “full restoration of justice.” Obviously, HR 36 would have limited the harm of the already existing evil.
By no means is the pro-life movement advocating for the unjust killing of those conceived in rape. This call to action is even mirrored by Jill Stanek in a new eBook, Abolition of Reason, where she states, “Yet in practice, I support a 20-week abortion ban, some legislation with rape/incest exceptions, and abortion clinic regulations. These are means to get to the end: stopping all abortions. Again, incrementalists work to stop all abortions while at the same time working to save the babies we can along the way.”[xii] As part of this partial restoration, the pro-life movement must continue to work to improve already existing pro-life laws. An example of this can be seen in Texas’ HB 3994[xiii] that was passed in 2015 and improved upon its parental consent law by tightening its provisions regarding the judicial bypass. The object, or final end sought, is to finally have the full protection of the unborn under the law. The intention is to limit the evil that exists under the law. In essence, what is being argued here is that the movement must seek to improve the Pain-Capable Unborn Child Protection Act after it becomes law.
One of the provisions to be worked upon in the future is the rape exception. As Dr. Michael New states in Abolition of Reason,
“However, one of the most important reasons why pro-lifers should continue to support incremental pro-life laws is that these laws are effective. Academic research has been published in an impressive range of political science journals, economics journals, and public health journals. These studies have analyzed different types of incremental pro-life laws. They have analyzed data from different states and different time periods. There is a very strong consensus among scholars that incremental pro-life laws have stopped abortions and saved literally thousands of innocent human lives. Overall, for the past 40 years, pro-lifers in the United States have worked tirelessly to protect the unborn. Progress has not come as quickly as we had hoped. However, the declining abortion numbers are clear evidence that progress is in fact, being made. And I have every confidence that if we stay the course, victory will someday be ours.” [xiv]
Those who argued that HR 36 was unacceptable because of the rape exception may not completely understand that they tread close to the position that is known as “abolitionist immediatism”. This position is also known as “absolutism” or “purism” and these immediatists merely seek an abolishment of abortion not by incremental methods, but by having a piece of legislation completely outlawing all abortions. The danger of this methodology is the real-life consequences that it does not save lives in the present. Incremental legislation does and St. John Paul II understood this as he stated, “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.”[xv]
As Sean Cardinal O’Malley, the former Chairman of the Committee on Pro-Life Activities for the United States Conference of Catholic Bishops stated in his January 20, 2015 letter to the House of Representatives, “For all these reasons, the proposed ban on abortions at 20 weeks after fertilization is a place to begin uniting Americans who see themselves as “pro-life” and as “pro-choice.” On behalf of our country and the children whose lives are at stake, I urge you to support the common-sense reform offered by H.R. 36 and to oppose all weakening amendments.”[xvi]
Simply put, common sense dictates that the way to abolish abortion is by taking an incremental path.
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 have not been overturned.
But there is a deeper question to explore here. One needs to explore a little more of what exactly St. John Paul II states in no. 73 of his encyclical,
“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.”[xvii]
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 to make courageous choices in support of life, especially through legislative measures.”[xix]
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 inhuman 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.”[xx]
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…”[xxi]
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.”[xxii]
As it stands now, the reality is that it is not possible to ban all abortions in the US. 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 injustice, but also how to make the evil of abortion illegal. As mentioned above, 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.’”[xxiii]
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 may not be overturned anytime soon. Furthermore, it is possible that the US Supreme Court may only send the abortion issue to the states. If that is the case, some states may still have to deal with the evil harms unleashed by abortion on demand. Secondly, it suggests that they also understand that if Roe and Doe are not overturned 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.”[xxiv]
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, will lead to the re- establishment of a just order in the defense and promotion of the value of life.”[xxv]
Incrementalism is not only justifiable but also a moral imperative. The simple reality is that since it may not be probable that Roe and Doe will be overturned within the year, 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. Even though Judge Brett Kavanaugh has been nominated and may be confirmed, there is no guarantee that Roe will be overturned. Furthermore, even if Roe is overturned and then returns to the states, many states will be facing the reality that their state constitutions have been interpreted as to have a so-called right to abortion. They will have to continue the legislative battle in an incremental way. As such, one cannot simply dismiss incrementalism.
There is an interesting passage within Exodus which states the following, “As God the Almighty, I appeared to Abraham, Isaac, and Jacob, but by my name, LORD, I did not make myself known to them.”[xxvi]
This is a telling passage; God himself worked with man incrementally. Man, had to be lead to God, the Truth. This is even further revealed by the reality that God still did not reveal himself fully to Moses. Christians believe the fullness of Revelation happens in the New Testament. Man, when in a state of dire sin must be gradually led to virtue. It is in this way man also is the Imago Dei. As a lawmaker, man can gradually reveal the truth of the dignity of the unborn gradually to those other men who need to see the light of the truth.
[i] This first part was originally published as “Principles of Action Concerning Civil Law” in Truth and Charity Forum on May 12, 2015. Much of the article remains the same with a few minor adjustments. The article may be viewed here: http://truthandcharityforum.org/principles-of-action-concerning-civil-law/.
[ii] New American Bible, Acts 5:29.
[iii] John Paul II, Evangelium Vitae, no. 70.
[v] John Paul II, Evangelium Vitae, no. 71.
[vi] John Paul II, Evangelium Vitae, no. 73.
[vii] United States Conference of Catholic Bishops, Forming Consciences for a Faithful Citizenship, no. 32.
[viii] Catechism of the Catholic Church, no. 1902.
[xi] This comes from the article entitled “Absolutism v. Incrementalism” which appeared in Truth and Charity Forum on Jun 11, 2015. The article focused on the 2015 version of HR 36 (The Pain-Capable Unborn Child Protection Act) and still uses this bill as an example since many in the pro-life movement had moral problems with the rape exception that was amended to the bill. The article now reflects the very real possibility that Judge Brett Kavanaugh may be confirmed to the U.S. Supreme Court and may have a real impact on reversing Roe. It is noted however, that this potential reversal may not happen within the next year or more depending on what cases are heard. The original article may be viewed here: http://truthandcharityforum.org/absolutism-v-incrementalism/.
[x] Please see “Unjust the Rape Exception” by Joe Kral at Truth and Charity Forum. The article may be viewed here: http://truthandcharityforum.org/unjust-the-rape-exception/.
[xi] United States Conference of Catholic Bishops, Forming Consciences for a Faithful Citizenship, no. 32.
[xii] Stanek, Jill (editor), Abolition of Reason, pg. 6.
[xiii] The bill may be viewed here: https://capitol.texas.gov/tlodocs/84R/billtext/pdf/HB03994F.pdf#navpanes=0.
[xiv] Stanek, Jill (editor), Abolition of Reason, pg. 77.
[xv] John Paul II, Evangelium Vitae, no. 73.
[xvi] The letter may be viewed here: http://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/upload/Letter-to-House-of-Representatives-HR-36-Pain-Capable-Unborn-Child-Protection-Act-2015.pdf.
[xviii] This part was originally published in Truth and Charity Forum as “Incrementalism and the Moral Imperative” on July 21, 2015. It was also used in another article for the Journal of Bioethics in Law & Culture in its Winter 2018 edition which is entitled “Legislative Incrementalism: Regnative Prudence and Three Pro-Life Issues”. This article focuses on the issue of regnative prudence and has also been updated to reflect the possible confirmation of Judge Brett Kavanaugh. The original article may be viewed here: http://truthandcharityforum.org/incrementalism-and-the-moral-imperative/.
[xvii] John Paul II, Evangelium Vitae, no. 73.
[xix] John Paul II, Evangelium Vitae, no. 90.
[xx] Aquinas, Thomas, Summa Theologica, II-II, Q. 50. A.1
[xxi] John Paul II, Evangelium Vitae, no. 90.
[xxiii] United States Conference of Catholic Bishops, Forming Consciences for a Faithful Citizenship, no. 32.
[xxv] John Paul II, Evangelium Vitae, no. 90.
[xxvi] New American Bible, Exodus 6: 3.