History has shown that when an injustice is codified into civil law, rarely is it overturned with one piece of legislation. Rather, it tends to be a laborious process in which the injustice must be dismantled piece by piece. In modern times, the civil injustice of abortion is being taken apart by incrementally passing legislation that limits its various evils. This methodology has proven to be the prudential path to take since it has been obvious for some time that the complete reversals of Roe v. Wade and Doe v. Bolton is not going to happen soon.
But there is a deeper question to explore here. In his encyclical, Evangelium Vitae, St. John Paul II states that, “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” (no. 73). While it is obvious that St. John Paul II states that a legislator “could licitly support” those initiatives aimed at limiting the harm done by the Roe and Doe decisions, the greater question is should the legislator support such legislation if the evil law cannot be completely abrogated?
It would seem that St. John Paul II surely does not mean that the legislator could oppose such incremental legislation if the evil law cannot be completely overturned. But what does he say about the need for passing such policies? To answer these questions just posed one must look further in the encyclical itself. St. John Paul II goes on to mention, “If charity is to be realistic and effective, it demands that the Gospel of life be implemented also by means of certain forms of social activity and commitment in the political field, as a way of defending and promoting the value of life in our ever more complex and pluralistic societies…This task is the particular responsibility of civil leaders. Called to serve the people and the common good, they have a duty [emphasis mine] to make courageous choices in support of life, especially through legislative measures” (no. 90).
It is not as if the great John Paul II is speaking in a vacuum; rather his thoughts on the matter have a strong grounding in Thomistic theology. The Great Doctor of the Church also wrote on the matter of a legislator and his duties as he remarks, “As stated above (47, 8,10), it belongs to prudence to govern and command, so that wherever in human acts we find a special kind of governance and command, there must be a special kind of prudence. Now it is evident that there is a special and perfect kind of governance in one who has to govern not only himself but also the perfect community of a city or kingdom; because a government is the more perfect according as it is more universal, extends to more matters, and attains a higher end” (Summa Theologica, II-II, Q. 50. A.1).
Prudence, then, plays a special role for legislators. This virtue helps them determine which path to take to better ensure the common good. For Aquinas, the legislator has to exercise a different type of prudence than that of the common citizen. This special kind of prudence can be termed as “regnative prudence” and it is the ability to understand that legislators must conform their prudence to act in recognition that they are supposed to have care for the community in mind when legislating. This is why St. John Paul II states that “they (legislators) have a duty to make courageous choices in support of life…” (Evangelium Vitae, no. 90). Since these leaders have the duty to make society a more just place they must act prudently. As he goes on to mention, “But no one (legislator) can ever renounce this responsibility (regnative prudence), especially when he or she has a legislative or decision-making mandate, which calls that person to answer to God, to his or her own conscience and to the whole of society for choices which may be contrary to the common good” (Ibid).
As it stands now, the reality is that it is not possible to ban all abortions in the US at present. As a result, legislators need to think about how they can prudently not only go about saving unborn human life and restoring justice where there has been injustice, but also how to make illegal the evil of abortion. As mentioned in a previous article, the US Bishops have endorsed the incremental approach in their document Forming Consciences for a Faithful Citizenship when they stated, “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’” (no. 32).
But what do the Bishops mean by the “art of the possible”? It would seem, given their approach to helping restore a Culture of Life, that, firstly the Bishops recognize that the evils of Roe and Doe are not going to be overturned anytime soon. Secondly, it suggests that they also understand that the full restoration of life is going to be done incrementally as they state, “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” (Ibid). It is obvious that the Bishops recognize the prudence of incremental legislation in a situation where an evil law cannot be completely overturned since incremental legislation is deemed “acceptable”. But what is meant by this term “acceptable”? The Bishops are not stating that incrementalism is just merely one of many acceptable political approaches trying to topple the so-called abortion right. But rather the term “acceptable” is being used to indicate that it is 1) morally permissible and 2) the moral approach to take in light of the situation here in the United States. This pattern of thought mirrors what St. John Paul II refers to when he writes , “At the same time, certain that moral truth cannot fail to make its presence deeply felt in every conscience, the Church encourages political leaders, starting with those who are Christians, not to give in, but to make those choices which, taking into account what is realistically attainable [emphasis mine], will lead to the re- establishment of a just order in the defense and promotion of the value of life” (Evangelium Vitae, no. 90).
Incrementalism is not only justifiable, but also a moral imperative. The simple reality is that since it is far from probable that Roe and Doe will be overturned any time soon, something must be done in order to limit the scope of their evil aspects and at the same time save and protect as many lives as possible. Incrementalism is proving to do just that.