top of page

 Featured Article

St. John Paul II’s Incrementalism in the Dobbs Era 

legal-1143114_1280.jpg

  Bioethics in Law & Culture                                                                                                                           Summer 2023      vol. 6  issue  3

Joe Kral, M.A.

President

Society of St. Sebastian

Author’s Note: This article is based on a presentation given to the 2023 University Faculty for Life Conference by the author.

 

Ana Brennan may have put it best when she stated, “But we cannot overlook the fact that abortion has been poisoning our medical and legal professions, and culture for 50 years. For the past 50 years, abortion has been the go-to “cure” for high-risk pregnancies. Doctors do not know how to practice medicine without abortion.”[1] The truth of the matter is Roe radically changed the culture within the United States. No doubt, after the Dobbs decision was handed down many Americans found themselves jarred with the reality that abortion was no longer constitutionally protected. This seismic cultural shift in law saw the country break into three categories when it came to the subject of legalized abortion: pro-life sanctuary states, abortion sanctuary states, and those in between.

 

Why did this happen? To better understand this question, one must go back to the foundations of both law and culture itself. In many ways, St. John Paul II certainly can help with these fundamental questions. He asserts, “The real purpose of civil law is to guarantee an ordered social coexistence in true justice, so that all may ‘lead a quiet and peaceable life, godly and respectful in every way’ (1 Tim 2:2).”[2] John Paul II is not merely speaking in a vacuum here but rather is speaking from the long and consistent Thomistic tradition regarding the civil law. As St. Thomas states:

 

Consequently, it is evident that the proper effect of law is to lead its subjects to their proper virtue: and since virtue is "that which makes its subject good," it follows that the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect. For if the intention of the lawgiver is fixed on true good, which is the common good regulated according to Divine justice, it follows that the effect of the law is to make men good simply. If, however, the intention of the lawgiver is fixed on that which is not simply good, but useful or pleasurable to himself, or in opposition to Divine justice; then the law does not make men good simply, but in respect to that particular government.[3]

 

When the law is ordered properly true justice prevails and common coexistence may flourish in a proper manner. However, if the law is disordered, society cannot be well-ordered. This means the law’s purpose is not only contrary to the common good, but it is also contrary to the very nature of mankind, which is made in the Imago Dei. In fact, these unjust laws can lead to structures within society that perpetuate vicious behavior. St. John Paul II states,

 

In fact, while the climate of widespread moral uncertainty can in some way be explained by the multiplicity and gravity of today's social problems, and these can sometimes mitigate the subjective responsibility of individuals, it is no less true that we are confronted by an even larger reality, which can be described as a veritable structure of sin. This reality is characterized by the emergence of a culture that denies solidarity and, in many cases, takes the form of a veritable "culture of death". This culture is actively fostered by powerful cultural, economic, and political currents which encourage an idea of society excessively concerned with efficiency. Looking at the situation from this point of view, it is possible to speak in a certain sense of a war of the powerful against the weak: a life that would require greater acceptance, love, and care is considered useless, or held to be an intolerable burden, and is therefore rejected in one way or another. A person who, because of illness, handicap, or more simply, just by existing, compromises the well-being or lifestyle of those who are more favored tends to be looked upon as an enemy to be resisted or eliminated. In this way, a kind of "conspiracy against life" is unleashed. This conspiracy involves not only individuals in their personal, family, or group relationships but goes far beyond, to the point of damaging and distorting, at the international level, relations between peoples and States.[4]

 

However, one needs to be careful here. St. John Paul II is not only speaking of law here but a whole cultural milieu. The law can certainly influence culture. Since the purpose of law is to make good citizens, it is meant to create certain behaviors and habits within the citizenry. Those behaviors and habits then can have an influence on the culture. Moral outlook can also have a cultural effect as well, even before any law is changed to reflect that particular moral outlook. For example, one can see just how the Sexual Revolution of the 1960s influenced no-fault divorce laws. As the decades continued, some states began to legalize same-sex marriage or civil unions. On the other hand, one can also see that same-sex marriage did not begin to see widespread approval until after the US Supreme Court ruled that same-sex marriage was a constitutional right.[5] In fact, according to Gallup, in 1996 only 27% of Americans supported same-sex marriage. In 2021, well after the historic decision, 70% support same-sex marriage.[6] A couple of things can be inferred from this phenomenon: 1) Major increases in support of same-sex marriage began to rise when the states began to legalize same-sex marriage in the late 1990s and early 2000s and 2) it continued to rise after the US Supreme Court decision. In many ways, Benjamin Watson, in his book, The New Fight for Life, stated this phenomenon best, “Simply put, people become more accepting of what has been codified into law.”[7] The culture helped change the law in the first place and then after it became law the culture accepted it even more.

 

What does this mean when it came to the Roe v. Wade decision? What did the society do? This phenomenon was certainly different. Not every state moved to accept legalized abortion on demand for any reason. Several states accepted the unjust decision and moved to further entrench abortion within state law. These states went on to fund abortion with state funds, passed laws that may allow non-physicians to practice abortion, such as nurses, passed buffer zone laws, and stifled the development of pro-life pregnancy centers. In essence, these states were clearly sending the message that abortion is a “good” that ought to be practiced. Whereas in many other states, the exact opposite was happening. These states went on to pass parental involvement laws, informed consent laws, unborn victims of violence laws, passed laws to prohibit state funds from being used to pay for abortions, etc. The message in these state laws was clear as well, abortion is not nearly as good as some may think it is. Both of these maneuvers by states helped influence their respective cultures. It also helps explain why the states have divided the way they have after the fall of Roe.

 

In particular, one can see exactly what St. John Paul II meant by “structure of sin”. In the case of abortion, which he describes as an intrinsic evil,[8] the mere fact that the state creates certain structures to allow the immoral practice to continue and thrive is morally problematic. Problematic insofar as it disrupts proper human flourishing, particularly of the innocent child being killed by abortion, and disrupts human relationships, particularly between parent and child. Civil law becomes warped and contrary to the very idea of law. It becomes as Aquinas states, “Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”[9]

 

It is quite a different situation in the states that fought back against the Roe decision. Instead of creating structures that enabled the immoral practice, they tried to limit the various harms that were unleashed because of the decision. Much of this began to happen because it did not seem likely that a Human Life Amendment was going to pass anytime soon. As a result, a moral question began to arise – was it moral to pass legislation that only prohibited certain harms caused by legalized abortion on demand? Was passing pro-life laws which limited abortion, but did not outlaw it, a form of illicit cooperation?

 

In 1995, St. John Paul II answered this particular question,

 

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. Such cases are not infrequent. It is a fact that while in some parts of the world, there continue to be campaigns to introduce laws favoring abortion, often supported by powerful international organizations, in other nations-particularly those which have already experienced the bitter fruits of such permissive legislation-there are growing signs of a rethinking in this matter. 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.[10]

 

Basically, the following can be broken down into three elements: 1) An evil law must (or will soon) exist, 2) the aim of the proposed legislation must be to limit the harm of the unjust law, and 3) must help sway public opinion away from the general acceptance of the unjust law. It is in this fashion that pro-life incremental laws are not in illicit cooperation. One may ask how specifically?

 

To do this, one must go back to the moral act itself. St. John Paul comes from the Thomistic moral tradition and as such the moral act can be divided into three elements itself: the object, the intention, and the circumstances. In this situation, the object of the act is to make an unjust law more in conformity with justice. The intention is to limit the harm of the existing (or soon-to-be-existing) law. Finally, the circumstances surrounding the act are this: the existing evil law (or one soon to go into effect) simply cannot be completely abrogated and this unjust law has created various harms to society. It is important to note that when Roe was decided it simply did not usher in one injustice, but many. For example, it created a harm in spousal relationships, a harm in parent-child relationships, a harm in doctor-patient relationships, and so on.

 

It is also important to note that if a law is to help restore these disabled relationships, then man is to properly reflect the Imago Dei. People also need to realize that part of that imaging is being in proper relationship with others. Just as God is Triune and thus, social, humankind too is social. As such, man in order to properly reflect the Divine must act accordingly. St. John Paul II speaks about man and his relationship to others in many areas of Evangelium Vitae, but two sections very much stand out. Particularly, Chapter 1 of the encyclical where the late pope speaks about Cain’s murder of Abel and how this event touches on the very notion of freedom. What is so telling is the fact that John Paul II makes a clear distinction between autonomy and freedom, “This view of freedom leads to a serious distortion of life in society. If the promotion of the self is understood in terms of absolute autonomy, people inevitably reach the point of rejecting one another. Everyone else is considered an enemy from whom one has to defend oneself. Thus, society becomes a mass of individuals placed side by side, but without any mutual bonds.”[11] Here, it is quite clear that this notion of freedom as autonomy harms relationships. Why? Simply, it pits one person against the other. When one person’s interest collides with that of another the other simply becomes an obstacle to either be overcome or destroyed.

 

This is certainly not the vision of St. John Paul II. Rather, his vision is much more relational. In answering the age-old question “Am I my brother’s keeper?” the late pope states, “Yes, every man is his ‘brother's keeper’ because God entrusts us to one another. It is also in view of this entrusting that God gives everyone freedom, a freedom which possesses an inherently relational dimension.”[12] Freedom is directed outward toward the good of others and self. Whereas, autonomy is inherently inward. A recent article detailing how some individuals reflect the disordered notion of freedom as inherently inward, “The ritual includes multiple chants to be said before, during and after performing in a drag show, concluding with the individual reciting the words “I am my own Master … I am my own God … I hail Myself.”[13] Eerily, these words mimic the very notion that the Serpent proposes to Eve in the Garden, “But the snake said to the woman: ‘You certainly will not die! God knows well that when you eat of it your eyes will be opened and you will be like gods, who know good and evil.’”[14] The very notion of contradicting the Divine Law is the essence of autonomy, not freedom. Sin breaks relationships and thwarts human nature, whereas virtue helps with actual human flourishing. In the aforementioned quote, the “drag queen” who recites the ritual words only thinks of self. Again, Genesis helps with this understanding of inward selfish thinking, “The woman saw that the tree was good for food, pleasing to the eyes, and desirable for gaining wisdom. So, she took some of the fruit and ate it.”[15] Notice how Eve only thinks inwardly. This is a selfish act, knowing that 1) it is in direct contradiction of what God’s commandment is with respect to the tree and 2) desires to have a forbidden status (to be a god) and to have forbidden knowledge (experiential knowledge of evil). It is only after her inward disordered desires are fulfilled by eating the fruit does she “share” it, “and she also gave some to her husband, who was with her, and he ate it.”[16] This is not sharing in the sense that this is being selflessly done but rather selfishly done. Eve desires Adam to be like her for what she has done. This is not an act of the will selflessly willing the good of the other, but an act of the will that seeks to corrupt the other. It is in these acts that one can see that man is not acting in the Imago Dei, but something radically different. The sin and the scandal of causing others to sin is merely the idea of “I know longer desire for the other to be like God, I desire the other to put me first.”

 

This goes to the very notion of what St. John Paul II had to say when he mentions that this warped understanding of self (autonomy) leads to the rejection of the other. If the other cannot conform to the corruption, they then become an obstacle either to be avoided or, in the case of the unborn, annihilated. Man, as a social animal, thereby harms proper relationships when this is done. Justice, that which is due to the other, becomes warped. It is no longer about the other, but merely the fulfillment of what one thinks is due to himself.  

 

This is the crux of the argument. Ultimately, relationships must reflect goodness. When an evil law seeks to habituate its citizens to improper relationships and an improper sense of justice, it must be corrected. This is exactly what happens with legalized abortion on demand. It is in this way that pro-life incremental laws seek to restore full justice and relationship. It is in this light that one can see the genius of the incremental approach. So, for example, one can look at pro-life parental consent laws. As mentioned above, when Roe became the law of the land it ushered forth many injustices. One of which was that it allowed minor girls to receive an abortion without their parents ever knowing about it. This, of course, is a gross violation of the principle of subsidiarity. Laws ought to be enacted that protect and help the family unit, but Roe simply did not do this. Parental consent laws seek to restore a parent’s rightful place when making medical decisions for a minor child. The object of the act in passing such a law is to help restore justice where there has been an injustice, in this case, the injustice was that parents were left out of their minor daughter’s decision to get a dangerous invasive procedure. The intention is to limit the harm that has been created. The harm was that minor girls were getting secret abortions without parental involvement. Obviously, the circumstance was that the evil of Roe had left open the opportunity for minor girls to get secret abortions. It is in this sense that pro-life incremental legislation is not illicit cooperation. In no way is the legislator trying to cooperate with the evil of legalized abortion on demand, but rather, as has been shown using the moral act, the lawmaker is trying to stop the very abuses that have come about because of it.

 

While it is much clearer how the legislator can help limit the harm of an existing law, what about cases in which the law does not yet exist, or in cases where the law might have to change each year? One good example is the federal Hyde Amendment which is passed each year. Originally written, it prohibited federal public funds from being used to pay for abortions except to save the mother’s life. But over time, it has been rewritten to also include rape and incest exceptions. So, if it is originally written to exclude the rape and incest exceptions, but is now being presented in legislative form to include the exceptions, is the legislator wrong to vote for it? Again, one must look at the circumstances of the act. Here, in this particular case, the law must be renewed each year. Without the passage of the law, it becomes legal to pay for all abortions. So, each year the law expires. As a result, the legislator is left with a dilemma, pass this amended version or allow for public funds to pay for all abortions since the law will no longer prohibit it. It is clear that the amended version that does contain the exceptions does limit the harm. The fact will remain that a vast majority of public funds will not be used to pay for abortion on demand for any reason. There may also be another circumstance as to why this amended version of the Hyde Amendment may have to pass. It may be the only version that can pass. Again, this goes to what St. John Paul II had mentioned regarding, “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.”[17] Here, in all honesty, the situation is that even the Hyde Amendment with the three exceptions is far more restrictive than the law which will come into effect if it is not passed.

 

This, of course, leads to situations in which a law may pass that completely abrogates a pro-life abortion ban or other pro-life law. This has been seen in the Dobbs Era where some states have repealed what pro-life laws they have. In these particular cases, the legislator may try to limit the harms of the proposed legislation.

 

Ultimately, what pro-life incremental legislation looks to do is help restore justice. The US Bishops Conference summarizes it best in their document Faithful Citizenship, “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.”[18] Again, the notion of justice, that which is due to the other, helps restore proper relationship among the citizenry. The autonomy that John Paul II speaks of is selfish and inward. The freedom that he speaks of is outward and directed toward the good of the other and society. This idea of justice becomes selfless.

 

So, what has been seen since the fall of Roe? In order to begin to answer this question it is important to establish that what has been witnessed is the states are falling into one of three categories: 1) pro-life sanctuary states, 2) incremental states, and 3) abortion sanctuary states.[19] For purposes of this article, it is also important to note those states which qualify as a “pro-life sanctuary state” are those that have enacted either an Abortion Ban or Fetal Heartbeat Act. Those states that qualify as “incremental” are those in which incremental legislation is still trying to be passed. Finally, “abortion sanctuary states” are those which enacted laws that allow abortion on demand for any reason up until birth.

 

Pro-Life sanctuary states already have effectively banned abortion or at least abolished the abortion industry within their borders. This is not to say these particular states are finished in passing pro-life legislation. However, it is to say these states recognize the need to protect the unborn child under the law. They are also beginning to take extra steps to help encourage the pregnant mother not to go out-of-state to obtain an abortion. Passing such initiatives are what is called pro-life safety net legislation. These are the types of legislation that grant more money to pro-life pregnancy centers, more Medicaid funding for pregnant mothers, tax credits for unborn children, and even passing legislation that would require biological fathers to pay child support for their unborn child. These are measures that encourage the mother to keep her child.

 

In addition to pro-life safety net legislation, there are several other facets of pro-life public policy in these states. For example, the most obvious is clarifying language that helps the medical community to better understand what is meant by the “life of the mother exceptions”. For over a year some in the medical community complained that they were not sure if this included ectopic pregnancies. As a result, several states passed clarifying language to make the law more precise. However, another type of legislation seems to have come into existence in the Dobbs Era as well. This is legislation that would prohibit the trafficking of a minor girl across state lines in order to obtain a secret abortion. Interestingly, this bill, which passed in Idaho,[20] is a modification of the federal bill, the Child Custody Protection Act, which has a history spanning roughly 25 years.[21] In many ways, it can be seen as incremental legislation since many states that fall into the “incremental” category may also wish to pass it. Again, one is able to see just how this bill easily passes the principle of incrementalism. The current evil is that the law allows individuals to transport minors across state lines to obtain an abortion without their parents ever knowing. Clearly, this particular law helps limit that harm, at least within that particular state. Furthermore, it helps guide public opinion from the acceptance of legal abortion. Again, how would such a law specifically do this? Law as the great teacher, in this case, helps: 1) inform the populace that parents are primarily responsible for the medical care of their minor children and 2) helps inform the populace that abortion is not nearly as safe of a procedure as the abortion industry tries to make it. It certainly helps with the reality that justice is restored since, as just stated, parents are the ones who have the primary responsibility to care for their minor children. In essence, one can say that this radical idea of autonomy as mentioned above and as practiced with abortion seems to have a tendency to violate the principle of subsidiarity.

 

The fact is, the proper practice of subsidiarity relies on the proper idea of freedom and relationship. The state has the moral obligation to uphold the family, not to tear it down, “In order to fulfill its vocation as the "sanctuary of life", as the cell of a society which loves and welcomes life, the family urgently needs to be helped and supported. Communities and States must guarantee all the support, including economic support, that families need in order to meet their problems in a truly human way. “[22] Abortion strikes at the very heart of the family, “Where life is involved, the service of charity must be profoundly consistent. It cannot tolerate bias and discrimination, for human life is sacred and inviolable at every stage and in every situation; it is an indivisible good. We need then to "show care" for all life and for the life of everyone. Indeed, at an even deeper level, we need to go to the very roots of life and love.”[23] If life is a good, then to intentionally take an innocent life is contrary to that good. This is why it is so important for those states that are still trying to battle abortion incrementally continue with their efforts. So, in addition to passing laws that prohibit the trafficking of minors for secret abortions, it is also highly likely that these states may try to pass ultrasound requirements prior to an abortion, gestational limit bans, parental involvement bills, etc. Again, each of these bills, in their own particular ways, helps limit the various harms of legalized abortion on demand.

 

One particular piece of pro-life legislation is beginning to see much more movement and that is the Sanctuary City for the Unborn proposals. This type of legislation is passed at the local level and is being seen in all three types of states. The pre-Dobbs form of the law included a provision in what is called a private enforcement mechanism. Now the new form relies upon the US Comstock Act which prohibits both devices and drugs that cause abortion to be sent through the US Mail service.[24] Simply put, the US Congress has never repealed this section of the law, it was only rendered inapplicable while Roe was in effect. Now that Roe has been overturned the law is back in effect. What this means is that in a state where abortion is legal a local community can effectively ban abortion within that community. How? By having the local community enforce the federal Comstock law. Equipment cannot be shipped nor abortion pills mailed within that community. Furthermore, if the state challenges the law, it has to argue 1) why the locality cannot enforce the federal law within its own community and 2) how the state law somehow trumps the federal law. In essence, they must argue the opposite of federalism.

But the intriguing bit about Sanctuary City for the Unborn Ordinances is the fact they can be passed anywhere. They have been passed in pro-life sanctuary states where they help bolster the state law within their communities. There are initiatives to pass them in incremental states and in abortion sanctuary states.

 

In many respects, Maria Gallagher may have said it best when she opined that in the Dobbs Era, the pro-life movement has begun “Phase Two” of its work.[25] It will be in this phase that the pro-life legislative battle will continue, not just in the federal and state legislatures, but in city councils as well. While Roe has been overturned, the legislative front is still ripe. While in pro-life sanctuary states, the effort will begin to focus more primarily on pro-life safety net legislation, we will also see the pro-life movement in abortion sanctuary states try to accomplish the same while at the same time filing incremental bills in the hopes that they will gain support. Incremental states will likely continue to pass laws that clearly take the incremental approach. There will be wins and losses in each of these states. But the fact remains that a Culture of Life has not been completely accomplished within the United States. A woman who lives in Texas, where abortion is illegal (except in the case where her life is threatened), may travel to New York State, where abortion on demand for any reason is legal, to obtain an abortion. This ability still needs to be corrected. And it will be the reason why the pro-life movement will spend much time at all levels of government to ensure that public funds will not be used for abortion travel.

 

The reality is that legalized abortion has created a whole cornucopia of problems and harms. The practice became so ingrained in some states, they are refusing to change this cultural problem. As long as one locality has legal abortion, other localities will have to look for ways to encourage women not to go and get an abortion there. It is in this sense that pro-life incrementalism will always be a moral option. Lawmakers will have to look for new and inventive ways to limit the harm and pro-life incrementalism will help provide that path, even in the Dobbs Era.

 

________________

[1] Brennan, Ana, “Referendums on Life,” Sebastian’s Point, November 21, 2022, https://www.societyofstsebastian.org/referendums-on-life-brennan, retrieved on June 13, 2023.

[2] John Paul II, Evangelium Vitae, No. 71.

[3] Aquinas, Thomas, Summa Theologica, I-II, Q. 92, A. 1.

[4] John Paul II, Evangelium Vitae, no. 12.

[5] Obergefell v. Hodges, 576 US 644.

[6] McCarthy, Justin, “Record High 70% in US Support Same-Sex Marriage”, Gallup, June 8, 2021.

[7] Watson, Benjamin, The New Fight for Life, Tyndale Momentum, 2023. (See Author’s Note, page 4).

[8] John Paul II, Evangelium Vitae, no. 57.

[9] Aquinas, Thomas, Summa Theologica, I-II, Q. 95, A. 2.

[10] John Paul II, Evangelium Vitae, no. 73.

[11] John Paul II, Evangelium Vitae, no. 20.

[12] John Paul II, Evangelium Vitae, no. 19.

[13] Anderson, Kate, “I Am My Own God: Satanic Temple Makes Drag Shows a Ritual”, Daily Caller, June 28, 2023.

[14] Genesis 3: 4-5, Revised New American Bible.

[15] Genesis 3: 6, New American Bible.

[16] Ibid.

[17] John Paul II, Evangelium Vitae, no. 73

[18] United States Conference of Catholic Bishops, Forming Consciences for a Faithful Citizenship, no. 32.

[19] Please see New York Times, “Tracking the States Where Abortion Is Banned”, Updated July 17, 2023. Retrieved on July 19, 2023, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.

[20] See Idaho HB 242. The bill was signed into law by Governor Brad Little on April 5, 2023. It took effect on May 5, 2023.

[21] See S.1645 - 105th Congress (1997-1998): Child Custody Protection Act | Congress.gov | Library of Congress. For the 2021 version see Text - S.16 - 117th Congress (2021-2022): Child Custody Protection Act of 2021 | Congress.gov | Library of Congress.

[22] John Paul II, Evangelium Vitae, no. 94.

[23] John Paul II, Evangelium Vitae, no. 87.

[24] See 18 US Code Section 1461.

[25] Gallagher, Maria, “The Dobbs Supreme Court Decision: Empowering Pregnant Women and Protecting Preborn Children,” NRL News Today, July 21, 2023.

bottom of page