How to chip away at abortion

Incremental victories are indeed pro-life victories

George Weigel, the noted papal biographer, senior fellow at the Washington-based Ethics and Public Policy Centre and board member of Americans United for Life, addressed a Campaign Life Coalition clergy luncheon in May in Toronto and offered some sage advice: incremental victories are indeed pro-life victories and their importance should not be discounted.

He offered this truism: “Some progress is better than no progress.” The progress he had in mind encompassed various initiatives, mostly undertaken at the state level (but at the federal level, too) including informed consent and parental notification laws, stricter regulation of abortion facilities and statutes that protect unborn victims of violence and infants who are born alive.

Over the past 15 years in the United States, the number of abortions has sharply decreased (by about 17 per cent). During that time, most states have placed various restrictions and regulations on abortion without actually prohibiting it. Many legislators still have the goal of eventually re-criminalizing abortion, but along the way, there are numerous laws and regulations that will chip away at the abortion regime.

Changing Hearts and Minds by Demonstrating Abortion Licence Not Unlimited

Americans United for Life has published Defending Life 2006: Proven Strategies for a Pro-Life America, a compendium of statutes and case law from all 50 states and the federal system that protect women and unborn babies. The introduction of the volume states “the landmark case” that ostensibly changes the law suddenly, such as Roe v. Wade or, in Canada, R. v. Morgentaler, “often represents not a sudden break with the past, but the culmination of decades of persistent legal work to build precedent through small incremental victories.” The assumption among many U.S. pro-lifers is that change (in a favourable direction) will continue through these incremental steps – changing the hearts and minds of Americans by demonstrating that the abortion licence is not unlimited.

After all, it is quite a jump for voters and politicians to move from the status quo that has abortion legal at any time during pregnancy (and sometimes after birth), for any reason and often at taxpayer expense to the concept that abortion should always be outlawed. AUL unapologetically defends its pro-incremental position, stating that initiatives such as partial-birth abortion bans and born-alive infant protection laws, requiring informed consent, are life-affirming.

Mailee R. Smith, litigation counsel for Americans United for Life, says that incrementalism is necessary to “dampen the blow of abortion on demand” until full legal protection is accorded to the unborn. Such laws protect both women and children.

The Challenge in Canada – What Incremental Steps Make Sense

The fact that a private member’s bill to provide some semblance of justice for unborn victims of criminal violence was recently deemed non-votable in Parliament points to a difficult battle ahead for pro-lifers here. Some may ask that when a common-sense, but not strictly pro-life, piece of legislation such as an unborn victims of violence bill can’t get any traction in Parliament, what hope is there for actual restrictions on abortion? Nobody ever said it would be easy, but from a strictly logical point of view, it will certainly be easier to convince legislators and the public that some abortions are wrong, or that some regulations are necessary, before they will be convinced that all abortions are wrong and therefore, the procedure should be re-criminalized.

And support for incrementalism does not preclude an outright ban; rather, it opens pro-life groups to strategies that will reduce abortion. Putting aside the question of immediate political feasibility and whether the courts would let stand restrictions and regulations on abortion, what incremental steps make sense and which do not?

Aidan Reid, director of the public affairs office of Campaign Life Coalition in Ottawa, told The Interim that it is important “bad things are not enshrined in law.” He provided the example of a gestational approach to limiting abortion as an example of an illicit limit on abortion – a law that states that abortion is permissible up to 20 weeks is not supportable, because it codifies the evil of abortion. It also has the practical problem, as was witnessed in the United Kingdom over the past few decades, that the upper limits become unenforceable as exceptions are made, doctors fudge the estimated age of the fetus and authorities turn a blind eye to abortions committed after the proscribed gestational age of 24 weeks.

CLC has applauded Liberal MP Paul Steckle for introducing a private member’s bill, C-338, “An Act to Amend the Criminal Code (procuring a miscarriage after 20 weeks gestation),” on June 21. However, there are some concerns about the wisdom of advocating such limits on abortion. CLC said in a press release that it encourages MPs “to consider Mr. Steckle’s example by proposing legislation” that would actually restrict abortion.

Mary Ellen Douglas, national organizer of Campaign Life Coalition, told The Interim it is significant that of the hundreds examples of incremental pro-life measures noted in Defending Life 2006, “not one is gestational.” That is because of negative experience in other countries of such an approach and the proven track record of other measures.

So what is permissible? What are effective restrictions on abortion that affirm the value of life, teach the public that abortion is not an inconsequential procedure and limit the evil of abortion by reducing the number of them committed?

Reid said CLC supports incremental legislation that “does not compromise the dignity of the child based on age.” He said it makes no difference whether the child is in his embryonic stages or late in the third trimester, “the law should not discriminate based on age.” He said that permissible restrictions include outlawing certain procedures, protecting survivors of abortion and laws that require abortion-seeking women to notify family members or become informed about the decision they are making.

Reid points to the American example of banning partial-birth abortion as both smart policy and smart politics. He said it criminalizes a particularly abhorrent abortion procedure (which is more infanticide than abortion) and the ban has widespread support. Pro-life groups have been able to reach out to citizens who would never consider themselves pro-life to oppose PBA and indeed, a number of typically pro-abortion politicians have voted to ban this particular procedure. Reid said you build on the qualms people have about killing an almost fully born child and teach them that all abortion is barbaric.

Because the law is a teacher, both the statutes on the books and debates about abortion affect voters. When an issue is before the House of Commons being discussed by politicians – and inevitably the press and the public – Canadians are forced to think about it. A debate on the floor of the House about abortion would disturb the famous “social peace” described by Jean Chretien, by which he meant that in polite society, such topics are not broached.

Many pro-lifers believe that when people are forced to think about the issue in any depth, they find they are more pro-life than pro-abortion. Any restriction on abortion that becomes a political issue would be the wedge for widespread discussion about abortion. And it doesn’t even need to be (originally) successful; American pro-life groups will privately admit that president Bill Clinton’s two vetoes of partial-birth abortion created an atmosphere in which abortion was necessarily and widely discussed.

The medical establishment in Canada is less than forthcoming about whether partial-birth abortions are committed in this country. But there are other procedures that should be proscribed. Douglas, said that Ottawa should prohibit dilation and extraction (D&E) abortions. She said the late-term procedure is particularly gruesome: the abortionist dilates the uterus and proceeds to tear the baby apart before pulling the body parts out. Regulating procedures and other restrictions might have to be implemented provincially, because abortion as a medical procedure falls under their jurisdictions. (Only as a Criminal Code matter should it be dealt with at the federal level.)

One such measure is the requirement that a decision to have an abortion be accompanied by detailed information – the so-called informed consent or women’s right-to-know laws. In the U.S., there are many such state-level requirements that force an abortion provider to give information on fetal development and fetal pain, the health risks associated with abortion, the availability of ultrasound and abortion alternatives.

According to Defending Life 2006, 29 states have some form of informed consent laws in effect. Many states (22) also require waiting periods of 24 hours for women to consider this information carefully and reflect on their decision. Related to the reflection period regulations, some states mandate that minors seeking abortions notify their parents or receive their consent. In all, 35 states have parental involvement laws (all have some form of judicial bypass procedure, as required by the 1992 U.S. Supreme Court Casey decision). A few states have placed strict limits on free-standing abortion facilities, often resulting in many closing down.

As Mailee R. Smith, litigation counsel for AUL notes, in the 1960s and 70s, it was popular for pro-abortionists to call for legal abortion precisely so it could be regulated and women have access to “safe and legal abortions.” But the reality, as Smith notes, is that “substandard conditions (are) found in abortion clinics.” Health department officials in Missouri and Arizona have found violations of health protocols in abortuaries that would result in other health facilities being closed.

Pro-life legislators have worked with consumer protection groups to ensure that proper hygiene and other safety measures are applied to abortion facilities. Any attempt to regulate abortion facilities or the patient-doctor interaction would probably have to be done at the provincial level in Canada.

There are also limits placed on abortion funding in the U.S. The Hyde Amendment, passed by Congress in 1972, prevents federal funding of abortion, except in cases of rape and incest and to protect the life of the mother. Also, 32 states have similar restrictions on abortion funding. Denise Burke, vice president of AUL, calls funding limitations on abortion – whether it be insurance limitations, restricting funding to use to certain facilities or recipients, limiting funding to specific circumstances – a “proven weapon to reduce abortions.” Research by Michael New of the Harvard-MIT Data Centre has found that incremental laws, especially when coupled with limits on abortion funding, are largely responsible for the decrease in the number of abortions in the U.S. in the 1990s.

Reid says that abortion funding could be tackled at both the provincial and federal levels. While funding of medical procedures under the Canada Health Act leaves which procedures are covered up to the provinces, Ottawa, under the Chretien and Martin regimes, blackmailed the provinces by cutting back transfer payments to New Brunswick and Nova Scotia because neither province fully funded abortions in both public and private facilities.

Reid said the Harper government should stop the “harassment” of the provinces and end pressure to fund abortions. He added that abortion should be defunded, because there is no evidence it is ever medically necessary, abortion is not medicine and the procedure is not mentioned in the Canada Health Act. He said, “Abortion advocates call it a choice, so therefore, it is not a medical necessity, but a lifestyle decision.”

Another federal initiative that would be beneficial is a Born Alive Infant Protection Act, which would make it a crime to kill a baby after it is born, including those infants who survive an abortion. In 1999, Alberta Report magazine discovered that Calgary’s Foothills hospital had left 40 late-term babies to die in 1998 after they were born alive, perhaps because of a skittishness over impinging on abortion “rights.” But Reid says such a law is necessary “as a house-cleaning measure to respect the current law.”

The law states that once an unborn baby passes through the birth canal and the umbilical cord is cut, it is a human being as defined by Canadian law; it should, therefore, be accorded legal protection. Reid described those who would oppose a born-alive infant protection law as supporters of infanticide and he thinks most Canadians would come to the same conclusion.

Incrementalism vs. compromise

The vast majority of Canadians oppose the abortion status quo, but that group is split between pro-lifers and those who want to keep abortion legal, yet would like to see it curbed. Many such “soft pro-choice” supporters would be horrified to see pro-abortion leaders defending clearly barbaric practices such as leaving born infants to die in hospitals. Public opposition to the killing of already-born babies, or the brutal methods used in some abortions such as D&E, could bring great pressure upon our elected officials to change the law, if the party leaders would allow a truly free debate and vote.

Where there are no restrictions on abortion, it should be obvious that some restrictions on abortion would be better than none. That is, something of a good thing is better than nothing. The question is how to do that.

Clarke D. Forsythe is the director of the AUL Project in Law and Bioethics. In Defending Life 2006, he writes about the objections typically raised to incrementalism. He makes several important points. First, reducing the evil is necessary when eliminating the evil is not possible. (Neoconservative commentator Irving Kristol often says that the perfect can be the enemy of the good and one could reasonably question the morality of forsaking reducing abortions in favour of holding out for an outright prohibition.) Forsythe says “prudential” politics requires taking “account of limitations in a world of constraints and strives to achieve the greatest measure of justice possible under the possible circumstances.” In other words, incrementalism is realistic, abiding the human limits that we encounter. It is not an, but the necessary first steps.

Etymologically speaking, incrementalism derives from the Latin “to increase.” Incremental limits on abortion – legitimate ones, at least – increase the restrictions on abortions and therefore, the ease with which women can procure them. There are two important litmus tests on incrementalism. The pro-life measure being proposed should not have the effect of severely hindering future politicians from acting to further restrict abortion or ultimately achieving the more perfect goal of prohibiting abortion if political conditions change. And secondly, it should not compromise core principles, i.e. the recognition that all human life is sacred from the moment of conception. Ronald Reagan used to say that he would compromise on tactics but never on principles. Incrementalism abides this wisdom.

Mary Ellen Douglas defines incrementalism as moving towards a larger goal without admitting that abortion is ever morally permissible, whereas compromise essentially accepts the legitimacy of some abortions and thus sacrifices some unborn babies. While it appears to be a semantic game, it is quite practical. Douglas says that the law must foreseeably restrict abortions, that is, it cannot be so loophole-ridden as to be ineffective.

Reid says CLC will never compromise on its core beliefs and that it will “fight for life, tooth and nail, for every person.” But, he said, “if we can pass laws that stop some women from getting abortions, that is progress.” However, incrementalism, if pursued as a strategy (that is, as a means) and not an end in itself, is necessary. Every measure that reduces abortion that does not compromise the dignity of a human being is a step forward; it is an increase in the protection accorded to unborn babies. And that, in the absence of complete protection, is a worthy goal.