A Radical Proposal: Incrementalism at the Federal Level

Introduction

This will be a really straightforward blog post, with no structural subtleties involved.

I want to begin with a proposal for a particular pro-life amendment to the Constitution of the United States. Having done so in this introduction, I will then outline in summary form the advantages of this approach. I will then touch on a key distinction to help us understand the fact that there is more than one way to terminate a pregnancy. And in the final section, I will try to answer possible objections to this approach, or at least suggest the direction of the answer.

That said, I am leaving the comments open for responsible discussion and pushback, so please remember to behave.

So then, here would be the language of the proposed amendment:

And yes, I do recognize that this is the mother of all incrementalist proposals. More on that in the discussion that follows. Much more, in fact.

Arguments in Favor

So that we know what we are talking about, let us define viability as the gestational age at which better than fifty percent of the children survive. A generation ago, viability was around 27 weeks, and now it is down to 21-22 weeks. It is not a fixed age, in other words.

The first argument in favor of this is that it grants the fact that most Americans do not understand what the abortion debate is even about. From the moment of conception on, every child is a child, and to draw an arbitrary line, prior to which line you can kill the baby and after which you cannot, is an approach which is logically and theologically incoherent. Granting that incoherence, it remains a practical political fact that an overwhelming majority of Americans are opposed to the abortion of a viable fetus, and they are not equally opposed to the abortion of a zygote. This means that a strong majority of Americans are on the pro-abort side with regard to the first five weeks of pregnancy, and on the pro-life side in the last five weeks of pregnancy. Makes no sense, but there it is.

But what that means is that the issue, framed in this way, would be yet one more 80/20 issue. It would put the progressive left defending what most Americans consider to be indefensible. Again. They would be maneuvered into defending one more issue, in a long series of issues, where they were out of touch with pretty much everybody. They would be pushed into defending abortions where the ultra sound could show the world a kid with a ball cap, dimple, and skateboard.

Incidentally, this helps explain the reason for the disconnect just mentioned. Americans are opposed to the abortion of children who look like children—that is something that depends on natural revelation, something they can see with their eyes. Opposition to the abortion of early term children has to depend on something more than the evidence of your eyes—that is to say, special revelation, and a logical train of reasoning. But what this proposal does is take that disconnect as a political reality, and just works with it.

A constitutional amendment that was not incoherent, meaning that it said that it would protect the lives of all the unborn, from the moment of conception on, would have the advantage of logical rigor. It would be in line with the whole counsel of God as laid out in Scripture. It would be right. But it would have the disadvantage of being an 80/20 issue in the other direction. It would have the additional disadvantage of never making into law, which is a significant disadvantage if your intent was to have the law do anybody any good.

Another advantage is that it would be awfully difficult for ostensibly pro-life politicians to withhold their support. It really would be a “put up or shut up” moment for them. The pressure would be on the lame pro-lifers to co-sponsor the thing. They have easily shied away from other measures as being “too extreme,” or “not realistic,” but they could not use that excuse any more. Not on this one. To vote against something like this would be to abandon any pretense of being pro-life in any sense of the word which, given their districts, many of them could not do.

Another advantage is that it would reduce the size of the field within which the abolitionists are wanting to fight. It would shrink the size of their battlefield. They need not sponsor this amendment themselves, or throw their resources into fighting in support of it. All they would need to do is continue their efforts at the state level. If any of them made the mistake of fighting against this measure, it would reveal how easy it is to grandstand against someone for “killing a bill that would protect children.” Just as Dobbs was a decision that they could not support, and yet which helped them strategically, so with this.

Termination is Not the Same Thing as Abortion

I mentioned a key distinction at the top, and here it is:

If such a measure were to be enacted, what could be done for those pregnant women who, for whatever reason, were past that point of viability? Would it be illegal for them to terminate their pregnancies? Well, it would be illegal for them to kill the child, but it would not be illegal to terminate the pregnancy. Remember that the child is viable, so work with me here.

Envision a large hospital complex, modeled along the lines of St. Jude’s, and funded the same way. This hospital would be dedicated simply and solely to neonatal care, and would be built and funded by pro-life philanthropists. Let’s call it St. Nicholas . . . a place where these children are given the gift of all their future Christmases. It should be a teaching hospital, near a university, and also near an accessible airport hub. Some of the women would come there to deliver their babies, while other preemies would be flown in after delivery.

Some of the mothers would very likely opt to keep the baby, once they had delivered the child. But St. Nicholas would also have an adoption agency attached to the hospital, and parents looking to adopt would form a line, or a waiting pool, which would likely be very large. This would put the lie to the charge that pro-lifers only care about the children before they are born.

As a non-profit institution, it would be possible to have donors underwrite the costs of flying the mothers there, and paying for all expenses. In order to remain in her home town to have an abortion of a viable child, the mother would have to say she would rather pay out good money of her own, and that she wanted the child to die. But here is a clear alternative . . . she could terminate the pregnancy in a way that would enable the child to live.

Objections Against

Of course, the immediate objection will be that this is not an abolitionist measure, but rather is just another form of compromised incrementalism at the federal level. The reply to this grants fully that it is in fact incrementalism, but denies hotly that it is any way compromised. For the issues involved in that debate, I would refer you to this book.

Smashmouth Incrementalism

Over the years, I have written a good bit on what I call smashmouth incrementalism. The subject concerns what needs to be the ultimate goal of all consistent pro-life activism, which is the eradication of all human abortion. It needs to be acknowledged that more than a few pro-life activists and functionaries have apparently lost their way, thus provoking the reaction of an “all or nothing” abo…

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Nothing in this proposal would preclude more consistent pro life legislation from being introduced and advanced at the state or federal level. Such legislation should be pursued and pressed. But in the meantime, this amendment would stop the killing of all children in this category, and would do so in every state. At a place where most Americans believe the bloodshed should stop, the bloodshed would stop.

A more reasonable objection is this. This would be an elective procedure, with the mother volunteering to have a preemie. Everyone would have to know that there are greater risks involved, and one of the risks is that the baby might die. If a woman came to St. Nicolas at 25 weeks, she and the doctors would all know that it would be smoother and better and safer if she got a lot closer to her due date. That is quite true, and some women would no doubt be willing to wait a few more weeks. But we have to remember that we are not comparing this to a normal pregnancy. Doing this is more risky, to both mother and child, than a normal delivery would be. True. But it is not more risky than an abortion would be, and that is what this actually is. So this proposal is not being put forward as a means of fighting normal childbirth. This whole enterprise is intended as a replacement for the abortion of viable children. Abortion is not risky for such children, but rather deadly.

It would be the kind of elective procedure that insurance companies would certainly decline to cover. But as mentioned above, the idea would be to have the whole thing funded by philanthropy—with both large donors and small.

Another argument that the abolitionists could raise is the idea that if such an amendment were passed, a lot of Americans would think we had “solved the problem,” and everybody would go back to sleep. It would no longer be honest to show posters of children dismembered at 30 weeks, as that would no longer be happening. Abortion would still be happening, but the ugliest forms of it would now be against the law. This is an argument that appears to have some force, as it seems quite possible that some wind would be taken out of the pro-life cause. “Why can’t we be satisfied with this victory?” Like I said, this argument looks like it has some force, but please keep in mind that this is not the only initiative. Perhaps we have some other proposals queued up behind. In the meantime, do we really want to fight to keep the ugliest forms of abortion around in order to make it easier to fight abortion? Then we would simply be a pro-life variation of the SPLC, funding racism so that they can have examples of racism to help them raise money to fight racism.

Last objection. In that the red line here is “scientifically-determined,” there will need to be some mechanism for deciding who the scientists are, what statistics are to be used, and so on. As that is a line that can move, there needs to be a broad medical consensus on what viability actually is, and some legal mechanism for setting it. My suspicion is that this is the part of the amendment that the pro-aborts would attack as too cloudy and undefined. And we should remember that “viability” is a tool that the pro-aborts also try to use—there is a measure on the ballot here in Idaho (Prop 1, which every Christian here needs to vote against with fire in their eyes), which is using viability to undo our pro-life gains and expand abortion access. So that needs to be defined by addressing who defines it.

Call to Action

I would call upon our friends in the House and in the Senate to take a look at this, review the wording, agree upon the exact wording, and introduce it as a proposed constitutional amendment in both chambers. It would require 2/3 majority in both House and Senate, and the ensuing debate would be most revealing.