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Defending Dobbs: Anti-Incrementalism as a Totalitarian Tendency
J. David Franks, Ph.D.
Massachusetts Citizens for Life | 01 September 2022
Analogous to the division between abolitionists and Lincolnian constitutionalists within the anti-slavery movement, pro-life advocates are split between those who oppose and those who pursue an incrementalist strategy. Anti-incrementalist pro-lifers routinely charge those willing to engage in the patient democratic-republican work to put abortion in the course of ultimate extinction with betrayal of humane principles. Indeed, the “personhood” faction makes no secret of their judgment that incrementalist pro-lifers are de facto pro-abortion. Such supercilious certainty does not deign to persuade; it simply asserts, unencumbered by epistemic humility. Thus, it has no democratic effect, except perhaps in some cases rendering the pro-life position so susceptible of caricature as to compromise substantive pro-life gains.
In a commentary piece written for The Daily Wire, “‘Lethal Timidity’: Pro-Life Theologian Calls Out Weak Politicians, Three Errors in Dobbs Opinion,” Father Marcel Guarnizo presents a sophisticated version of the anti-incrementalist position. What he makes clear with his forceful rhetoric is that the anti-incrementalism he so ably champions rejects the reality of the realm of political and legal prudence as an analogical level of being with its own intrinsic and irreducible intelligibilities and exigencies. Guarnizo rather sees, with utter and indubitable clarity, the immutable verities of natural law—and lays them down as trumps against the messiness of temporal factors with which the rest of us have to live, amidst which we have to negotiate.
Aristotle makes a distinction between theoretical and practical science: the former treats of immutable intelligibilities, the latter of the field of human action—which is essentially timebound and contingent. Practical science is the realm of prudence, of politics. This realm does not yield certainties, but rather involves one in a never-ending commerce with one’s fellow actors and their actions. Prudence gains increasing clarity by dialectical engagement with the opinions that fuel those actors—and indeed ourselves—in their, in our, actions. The temporal depends on the eternal at every point, to be sure, but it is not reducible to the eternal: creation spins out the relative autonomy of mutable being. In this world of time and space, truth must be pursued by the embodied person through a constant striving, a never-ending effort to communicate with others in order to expand one’s soul and make it slightly less incapable of the fullness of truth. The truth, serenely itself in eternity, can be found in time only as tesserae of a mosaic still unfinished.
To deny the ambiguities of prudence, the simple fact that there is no single, obvious, necessary path to the common good given the vagaries of time, is to deny the analogy of being: the similarity and dissimilarity between created and uncreated being. It is to leap over the oftentimes-vexing constraints of embodied and temporal existence.
Father Guarnizo exemplifies the anti-incrementalist overleaping of the level of being whose proper science is that of politics in favor of an unmediated, peremptory, and ludicrously self-assured assertion of pure theory. Such rejection of analogy is totalitarian in its tendency, disposing one to dismiss the existential earnestness of viewpoints thought to be opposed to one’s own and to demand obedience to the pure concepts so radiant in one’s mind—no need for humility, docility, or persuasiveness. Rejection of analogy favors a world-destroying utopianism; the univocity of being resounds in the revolutionary’s certitude. And it leads to basic failures in interpreting the meanings and motives of others.
Guarnizo structures his essay, with some repetition, around what he calls “three fundamental errors” within the logic of Dobbs.
First, he notes that some have mistakenly assumed that the right to life of the unborn was vindicated by the decision. Guarnizo is correct that Dobbs does not deliver such a vindication. This he calls the decision’s “first error.”
Yes, it would have been better had the majority noted the scientific fact that human life begins at conception. But a raw assertion of the unborn human’s right to life would have reproduced the mirror-image anti-republican and anti-democratic mistake made in Roe and Casey: vindication of a putatively higher-law principle in a way that short-circuits the federal architecture of the United States. Now, the liberty interest of a mother and the life interest of an unborn child are not equivalent: there is a natural priority to life. That said, there are prudential reasons to recognize that the resolution of the dialectical incommensurability at play in this clash of interests requires patient common deliberation on the requirements of equal human dignity.
To note that the unborn child has an inherent right to life, which is certainly and immutably true, does not settle the matter—like magic, like a silver bullet—in the realm of history because we humans are refractory material. The Constitution does not simply transmit the eternal law: it politically mediates the humane principles of our Declaration, that all humans are created equal, endowed by our Creator with certain inalienable rights. That mediation requires time. We saw this with slavery. That is what Lincoln argued about the tendency of the Constitution to enact the Declaration’s principles over time. Yes, the immutable principles of the Declaration have priority. But they have to be worked out through democratic and republican processes.
We now move to the second “fundamental error” Guarnizo finds in Dobbs: “The Dobbs decision did not affirm that no one may ‘… decide whether others can live or die.’ The contrary was repeatedly affirmed in the majority opinion. In its opening lines the Dobbs decision conferred authority on the states and the people ‘to decide who lives and who dies.’”
Those last internal quotation marks are, shall we say, misleading. It is, of course, not a quote from the decision. And, in fact, the majority opinion does not confer authority over life and death to the states. That Roman legal concept, vitae necisque potestas (power of life and death, or life and killing), has no explicit place in our laws. It is bizarre and tendentious phrasing on Guarnizo’s part. Unlike capital punishment, which is in fact an operation of the state in which it exercises a power to kill, abortion is not an act committed by the state. It is a private, not a public, act of killing. What states are now debating, after Dobbs, is whether they will disallow that private act of killing, at least in certain circumstances. The obvious must be said here: Dobbs is a great pro-life victory. It enables pro-lifers to bear loving witness and to make a case in each state to bring home the responsibility we all owe to the most vulnerable human life.
Guarnizo then reframes this second error: his claim is that Dobbs affirms the existence of an abortion right. But every use of the term “abortion right” in the majority decision is merely putative. Certainly, the whole point of the Dobbs decision is to deny the existence of a constitutional right to an abortion? Guarnizo’s misconstruction is hard to fathom—except on the hypothesis of ideological pressure operating on his system of thought. What ideology? The rejection of the analogical integrity of constitutional, legislative, and judicial prudence.
Finally, we come to the last of the fundamental errors Guarnizo finds in Dobbs. It is unclear how this differs from the previous “error” in substance: “The third error now percolating into the ranks of the pro-life movement is the Court’s statement that the states can regulate the right to life.”
“The Court’s statement”? The Court makes no such statement. Indeed, Guarnizo should have remembered his own “first fundamental error” in Dobbs: in its decision, the Court does not affirm a right to life of the unborn; a fortiori, it does not affirm a regulation of such a right. Guarnizo seems guilty of logical incompetence—or sophistry.
Also, Guarnizo places “regulating the right to life” in quotes. As noted, the Supreme Court does not use such a phrase. Who does? Guarnizo has not only somehow heard the Supreme Court use the phrase somewhere; he has heard pro-lifers use it: “To hear pro-lifers speak of the right to life as the ability of the states to install ‘common-sense regulations’ on the right is an absurdity.” But literally, no pro-lifer speaks this way. Again, Guarnizo’s failure to recognize the integrity of the mutable realm of time and space in which the good must be pursued through prudence and political compromise renders him incapable of understanding other ways of being-in-time. He simply cannot see how a sincere pro-lifer could be pursuing truly pro-life ends through politically effective means.
Guarnizo concludes by citing Solzhenitsyn and Havel, in a gesture redolent with irony. Yes, “live not by lies.” But the big lie is the delusion that we possess the truth so purely, without admixture of error, such that we may pontificate in matters of prudence: judging and never judged. There is no tyrant who has not thought himself the one voice of being itself. What saves the anti-incrementalists from being totalitarians is their very political fecklessness. But the powerless deserve more than the posturings of the pure; they require the patient exertions of the prudent, toiling away in history, new Lincolns maintaining the tensions necessary for love to claim us and claim all more radically. Towards the end of “The Power of the Powerless,” Havel writes: “A new experience of being, a renewed rootedness in the universe, a newly grasped sense of ‘higher responsibility,’ a new-found inner relationship to other people and to the human community—these factors clearly indicate the direction in which we must go.”
 Along these lines, the Kansas referendum is perhaps a cautionary tale. See, for example, https://www.newsweek.com/pro-life-groups-blame-kansas-amendment-loss-abortion-industry-campaign-1733055.
 Marcel Guarnizo, “‘Lethal Timidity’: Pro-Life Theologian Calls Out Weak Politicians, Three Errors in Dobbs Opinion,” The Daily Wire: https://www.dailywire.com/news/the-pro-life-movement-in-america-must-recover-its-intellectual-foundation.
 The Dobbs decision opens: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. For the first 185 years after the adoption of the Constitution, each State was permitted to address the issue in accordance with the views of its citizens.” Certainly we may, and do, quibble that the first of these positions is not a mere “belief.” But that is not the point. These are all serious, and not unreasonable, positions. We pro-lifers know the first to be true, but those who do not know it to be true…do not know it to be true. Democratic coexistence requires being able to note that simple fact, and to work from there. There is no pope of a democratic republic. Pro-lifers do not speak with inherent and overwhelming credibility. We have to earn our credibility by the fervor of our love and our openness to ongoing conversion. If we have seen something of the truth, let us become humble enough to be worthy of serving that truth as agents of love, of radical hospitality, responsibility, and reconciliation.
 For one thing, it seems as if Guarnizo is referring not to the “opening lines” of the decision, but rather to the presentation of the holding in the syllabus: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
 See “Right of Death and Power over Life,” Part 5 of Volume 1 of Michel Foucault’s The History of Sexuality, trans. Robert Hurley (New York: Vintage Books, 1978), for a brilliant account of the transition from the pre-modern exercise of the power to kill to the modern state exercise of power over the life of populations.
 Guarnizo: “And yet again, promptly forgetting that there is no such thing as an abortion right, they falsely affirmed, ‘…the people of the various states may evaluate those interests differently. In some states, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized…’”
 See Dobbs, Opinion of the Court, pp. 5, 9-11, 26, 27, 30-32, 36, 37, 46, 47, 55, 56, 65.
 Václav Havel, “The Power of the Powerless,” ch. 2 of Living in Truth, ed. Jan Vladislav (Boston: Faber and Faber, 1986), p. 118.