Law & the Courts

Pro-Life Incrementalism, Continued

Pro-life marchers rally at the Supreme Court during the 46th annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters )
Our moral obligation is to combat abortion insistently, but also as effectively and intelligently as we know how.

Among ourselves, pro-lifers have been debating the right way forward for decades. In the first years after Roe v. Wade, pro-life activism was largely directed toward pushing for a constitutional amendment to prohibit abortion. Starting in the mid 1990s, the movement devoted more of its time and attention to enacting restrictions on abortion that fell short of a complete prohibition. In part this was because the Supreme Court, in Planned Parenthood v. Casey (1992), had cracked open the door to such restrictions. In part it was because the fight for an amendment created an insoluble chicken–egg dilemma: The culture would have to change immensely for it to be ratified, but the law as it stood made it hard to envision, let alone foster, any such change.

By pursuing modest restrictions while also making the case for full protections for unborn children, pro-lifers over the past generation seem to have made some significant progress: enacting many laws against abortion, both at the state and federal level; contributing, via these laws, to a gradual, albeit painfully slow, reduction in abortion rates; and creating a Supreme Court majority that may be open to withdrawing from abortion policy.

In a recent column for Bloomberg Opinion, I restated the case for pro-life incrementalism. At all points in time, pro-lifers should aim, I argued, to enact the maximum feasible legal protection for unborn children that is sustainable over time. That might mean prohibiting abortion after the 20th week of pregnancy, and then extending that prohibition to the 19th week, and so on: codifying protections that commanded a public consensus while seeking to move that consensus in the direction of moral truth.

In making the many judgment calls required to pursue this strategy, two kinds of error are possible. One is overshooting and causing a backlash that sets back the goal of full legal protection for unborn children, by inducing the courts to create more abortion-right precedents, or making it easier for the abortion lobby to recruit ambivalent voters to its side. Another is undershooting, and thereby declining to offer protections that are, in fact, achievable.

Earlier this week I tweeted a link to that column, and in the midst of pro-life legislative action in Alabama, Georgia, and elsewhere, it stirred some discussion. Quite a few critics raised points that deserve at least brief responses. Perhaps interestingly, almost none of the critics argued that political circumstances had changed in a way that had made a formerly sensible incrementalist strategy outdated; almost all of them rejected incrementalism on principle.

Some critics said that incrementalism had not achieved anything for pro-lifers and so it is time to go for broke. I’ve given my answer to that above. But I’d also note that if the contrary strategy works at all, it will be because of past incrementalist achievements. If the Alabama law leads to five justices’ voting to end the Roe regime, for example, every one of those justices will have been appointed by a president who campaigned saying he favored rape and incest exceptions to abortion bans.

Another set of criticisms held that other social and political movements — most frequently cited were the movements for gay rights and for the abolition of slavery — have prevailed without adopting incrementalist tactics. I disagree with this reading of history. The gay-rights movement didn’t start by demanding same-sex marriage, for example; first it tackled laws criminalizing homosexuality.

But incrementalism doesn’t have to be a universally correct strategy, for all political movements at all times, to be the right one for the pro-life movement today. Among the circumstances we confront are these: We have a radically unjust legal regime on abortion which can in principle be made less unjust by degrees; many millions of Americans are ambivalent — for example, favoring legal abortion in the case of rape while opposing it in the second and third trimesters; those on the other side of the debate are, partly as a result, demonstrably more eager to discuss abortions after rape than abortions late in pregnancy; many politicians allied to the pro-life movement are not especially adept at navigating the politics of the issue; and while our sense of where the Supreme Court justices are is imprecise, we have reason to think that one or more of them have misgivings both about Roe and about overruling it. These circumstances all argue in favor of incrementalism.

Finally, many critics suggested, often using forceful rhetoric, that an incrementalist strategy does not fit the moral urgency of the cause. The evil of abortion must be combated insistently, they say — and I agree. But our moral obligation is to combat it as effectively and intelligently as we know how. It is not to pass a law that gets struck down in court rapidly while alienating Americans in the middle of the debate. When I tweeted out my column, I said that the pro-life opponents of incrementalism were moved by a “righteous impatience” into “strategic error.” It drew the tart response that while we are being patient, millions of babies will die. If impatience were enough to save them, the point would be dispositive.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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