This, no doubt, will be a controversial article. In the wake of the passage of HR 36 (The Pain Capable Unborn Child Protection Act) 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, opposed the entirety of the legislation. This 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 any 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 that would be 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.
But the real question is—did this exception make this incremental bill unacceptable? A closer look at the argument shows some serious flaws 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. How then, do these leaders justify their position since there is a glaring inconsistency?
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” (Forming Consciences for a Faithful Citizenship, no. 32).
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. HR 36 accomplishes this task. Except for a few states, at present all unborn children beyond the 20 week gestation mark can be aborted for any reason. This bill, if enacted, would effectively make 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 limit 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” (pg. 6). As part of this 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 that was just recently passed 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” (pg. 77).
Those that 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 outlaw 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” (Evangelium Vitae, no. 73).
As Sean Cardinal O’Malley, the Chairman of the Committee on Pro-Life Activities for the United States Conference of Catholic Bishops recently stated, “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.” Simply put, common sense dictates that the way to abolish abortion is by taking an incremental path.
Joe Kral has been involved in the pro-life movement since he has been in college. His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics. From 1996-2003 he was the Legislative Director for Texas Right to Life. During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life. From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives. In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas. He currently is an adjunct professor of Theology at the University of St. Thomas, teaches FTCM courses for the Archdiocese of Galveston-Houston, and also serves as a voluntary legislative advisor to Texas Alliance for Life. He has been married to his wife, Melissa, since 2004 and attends St. Theresa’s Catholic Church.
