PBP411H: Objections to Gestational Incrementalism

In Canada, every major pro-life organization supports incrementalism¹⁾. However, several organizations vociferously oppose gestational limits as an incremental measure.

maybe an American example

Guidance comes from Catholic moral theology, namely, Evangelium Vitae 73.2:

Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection. […]

In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to “take part in a propaganda campaign in favour of such a law, or vote for it”.

Opponents of gestational limits argue that gestational limits are an intrinsically evil form of incrementalism, and cannot be supported in good conscience.

Yet also EV73.3, very next paragraph:

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 favouring 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.

So, are gestational limits intrinsically evil? Are they an unjust means to achieving a just ends of restricting abortion?

On the side against gestational limits, Colin Harte writes an entire book on this, Changing Unjust Laws Justly, and Canadian pro-lifer Geoff Cauchi has written extensively on this as well within the Canadian pro-life movement. Cauchi argues:

• Gestational limits are intrinsically unjust, and thus can never be supported in good conscience
• He calls EV 73.2 the “No Exceptions Statement” and EV 73.3 the “Politician's Rule”²⁾
• Key to this view is that Canada has no law on abortion, therefore to create a law that allows for abortion based on age or circumstances of conception would be intrinsically evil, and that this is radically different than if Canada did have an abortion law already and a proposal was to restrict it or limit it further
  • This is viewed as bargaining away the rights of some children for others³⁾, “buying the votes” with the lives of children
• strongest objection (that I've never heard anyone make): how can we fight age=based discrimination with age-based discrimination? It'd be like gradually abolishing slavery through racist incremental steps, like starting by emancipating the lighter-skinned slaves, then moving to darker-skinned slaves
• Self-identified as “principled incrementalism” (as opposed to a “do nothing” or “magic wand” approach)
  • We can propose incremental measures that are not intrinsically unjust, ie. that do not discriminate against pre-born children, e.g. defunding abortion, parental consent/notification, etc.
• This is a distinctly Catholic objection, based on interpretations of Catholic moral teaching, yet it is a minority view among Catholics: the major consensus of Catholic moral theologians, or Bishops such as Archbishop Miller of Vancouver or Cardinal Collins, is that a gestational limit is not an intrinsically unjust measure that can never be supported, but could be a just way of restricting the evil of abortion as an incremental measure
• In Summary:
  • Since Canada has no abortion law, promoting a law that restricts only some abortions (for example, making abortions after 12 weeks illegal), would mean that we are legalizing and condoning all of the abortions that are not banned (e.g. those happening before 12 weeks)
  • Jan 2014 Interim: We find politically motivated compromise that creates arbitrary demarcations to protect some human lives but not others to be abhorrent, adding the insult of age discrimination to the injury of death by abortion. Protecting pre-born human life requires political action, not political compromise.
• The UK is a big question, where gestational limits were viewed by the pro-life movement as a mistake
  • The plural of anecdote is not data, and the empirical questions matter: would any given gestational limit actually save lives (or would there be an educational value to the law)? But the empirical objection is different from the principled objection. Any incremental measure should be subject to an empirical analysis

https://weneedalaw.ca/initiatives/international-standards-abortion-law/

What are the problems with this view in opposition to gestational limits? WNAL Direction Matters⁴⁾

• What is not illegal is legal
• We already have a gestational limit: birth (Section 223 of the Criminal Code on when “a child becomes a human being”)
• New restrictions do not make abortion legal, it's already legal
• In a country with no restrictions or laws pertaining to abortion, regulating abortion is a critical step towards making it illegal
• Theory of Change: Direction Matters
  • From pre-1969 to present, we've gone in the wrong direction from illegal abortion, to regulated abortion, to decriminalized abortion
  • In order to protect pre-born human rights and make abortion illegal, we have to reverse the legal process, to go from decriminalized to regulated to illegal
• How is gestational incrementalism different from other forms of incremental laws?
• Does defunding abortion discriminate against children based on the economic status of their parents, and save poor babies but condemn rich babies?
• Would parental consent laws discriminate against children based on the beliefs of their grandparents, saving the babies of pro-life grandparents but condemning the babies of pro-choice grandparents?
• could an anti-gestationalist justifiably argue against attempts to legalize infanticide, e.g. in the US? Do laws to protect born-alive abortion survivors discriminate against the pre-born?
  • Problem of anti-GL position: Canada already has a gestational limit i.e. birth, pro-GL side is simply trying to make the “protected” category bigger.
• Is there an issue of scandal? Would supporting gestational limits send a message to the public that the pro-life movement is okay with abortion before the limit?
• Mark Penninga responds to Marie-Claire Bissonnette who raises this point: https://arpacanada.ca/news/2019/03/05/even-in-a-world-with-chemical-abortion-canada-still-needs-an-abortion-law/

Let’s assume for a moment that the author’s arguments are correct, and no support should be given for anything other than a full ban on abortion. Let’s follow this logic for a moment. If a bill that banned abortions after 10 weeks, 6 weeks, or even 2 weeks was introduced, they would have to oppose those as well. And if our society were to become so disturbed by the gruesome reality of surgical abortion that it was prepared to ban the practice altogether, these same people wouldn’t be able to support that either because chemical abortions would still be legal. As Marie-Claire boldly asserts, any law banning only some abortions would strengthen “the legal status quo by bestowing upon it a perceived but false level of modesty and reasonableness.”

But in reality, such a law would drastically change the status quo, saving many lives, and so be well worth supporting!

With her logic, what kind of abortion law could she, and those who agree with her, support? Marie-Claire gives two examples of strategies she says we should all be able to support: defunding abortion and protecting conscience rights of health care providers. But, as worthy as these goals may be, they don’t actually address the practice of abortion itself. They aren’t abortion laws.