by Jay Rogers, Personhood FL
Any pro-life law that is enforceable and saves lives is a good law unless it explicitly identifies a class of human beings that we may kill with impunity. Such a law, even when passed in the absence of a Personhood state or national constitutional amendment is deemed to be “Personhood compliant.” We use the standard, “First, do no harm,” to measure the morality of laws that protect the sanctity of human life. This is also known as the doctrine of non-maleficence.
This is the position carved out by the National Personhood Alliance (NPA) a new organization that will network pro-life organizations throughout the United States. NPA will work in a cooperative capacity with Personhood USA, which will continue to promote the “branding” of Personhood and work on initiatives on a national and state level. NPA will be a separate group in which each state will have a “vote on the national Board” and will assist in setting the strategy, protocol and policy of the state Personhood organizations.
Within pro-life circles, there has been a vigorous and growing debate in recent years over the concept of “incrementalism.’’ Essentially, this is the idea that the pro-life cause can be advanced by passing laws that save some lives even while working toward the day when Roe v. Wade can be overturned. All pro-life groups would like to pass a Human Life Amendment to the United States Constitution. However, some are willing to accept momentary gains, even when these laws include the very “exceptions” outlined in Roe v. Wade and Doe v. Bolton – most often rape and incest. This does not mean that these pro-life organizations believe exceptions are morally right. They are willing to accept the lesser of two evils – abortion on demand for any reason through all nine months of pregnancy vs. abortion in limited circumstances.
Personhood strongly opposes compromised incrementalism as ineffective and immoral. Regulating child murder cannot work on a practical level. We also oppose the exceptions on a moral basis. Delineating one class of human being we may kill undermines our pro-life argument and violates the law of noncontradiction.
Unfortunately, “incrementalism” has become a misnomer. The term is sometimes used to describe any pro-life legal strategy short of an outright ban and criminalization of all abortion. In reality, every pro-life strategy is incremental. Sidewalk counseling and the work carried on by CPCs are incremental strategies in that they do not purpose to end all abortion. Christian pro-life ministries ought to call all parents to repent of killing their sons and daughters, but on a practical level, this type of ministry can never be thought of as an immediate end of abortion.
Even the state-wide Personhood amendment initiatives are not an end to abortion in all of the United States. Likewise, a national Human Life Amendment would not end abortion in the whole world. Passing a single Personhood amendment will be the beginning, not the end, of a long war to end abortion. When the first Personhood amendment is passed on the state level, it will ignite a battle that will rage on for many years at all levels of government, state by state, and then finally nationally and world-wide.
As we begin down this road, we ought to delineate levels of incrementalism and define each by giving tangible examples of legal strategies that fit into each category.
1. Compromised incrementalism – Laws regulating abortion that include explicit exceptions, such as rape, fetal anomalies and the mental, familial, financial and emotional health of the mother.
2. Principled incrementalism – Laws that do not ban all abortion, but are designed to incrementally restrict abortion without including explicit exceptions in the language of the law. Examples might include parental notification laws, an ultrasound requirement, and bans on aborting preborn children that have reached the stage of viability.
Explicit vs. implicit?
Before moving on to a discussion of levels 3-6, it can be debated whether all “level 2” laws are Personhood compliant. Some in the Personhood movement see any attempt at regulating abortion incrementally as compromise. For instance, a 20-week ban on abortion, even one without the rape exception, is seen by many Personhood advocates as compromised because it states that a baby can be killed prior to the 20-weeks. While on one hand, that seems to be a compelling argument, on the flip side, it is the “argument from silence” fallacy. If a law or moral commandment is silent in addressing an action or behavior, then it does not follow that it speaks in favor of it. For example, a grand theft auto law might not address the theft of bicycles used in employment. This does not make the grand theft auto law immoral simply because it does not protect bicycle owners to the fullest extent of their rights. We could apply this analogy to almost any legal statute. No single law punishes all crime. Each law makes up a larger legal code. Together with court precedent, these statutes and ordinances on all levels of government make up the system of civil law.
Yet another group takes the position of “immediatism.” They say that nothing short of a law that would put an end to all abortion without exception and also criminalizes abortion as murder is acceptable. The problem with immediatism is that I tends to have no practical sensibility. While we must end abortion by standing for uncompromising principles, those principles must be realized in practice and acted upon. Otherwise, the pro-life advocate is merely engaging in sloganeering and agitation. Immediatism does not propose an actual plan or legal language to end abortion. However, it is a "strawman argument" to say that some pro-life advocates want “incrementalism” merely because the measures they support cannot end all abortion.
A False Dichotomy
“Incrementalism vs. immediatism” is a false dichotomy. No incrementalist prefers a slow end to abortion. Pro-life advocates would prefer an immediate end to child killing. Likewise, no immediatist believes in doing nothing until he can end abortion in one fell swoop. They work to end abortion in any way they can in a manner that they consider morally acceptable. Most immediatists rightly admit that a cultural change is needed prior to legislation.
A 20-week abortion ban with no exceptions is opposed by some pro-life advocates, on the basis that it is a "incremental" strategy, even though it would protect the lives of tens of thousands of viable children who are being slaughtered each year. Another incremental initiative, such as defunding Planned Parenthood, would be supported by most pro-life advocates as a good strategy – even though withholding funds would not end abortion pro-actively.
The acid test for whether a law is morally acceptable from the sanctity of life position is whether such a law could stand a legal challenge under a constitutional amendment defending the Personhood of all human beings from biological beginnings to natural death. A 20-week ban on abortion with no exceptions would not need to be repealed under Personhood. Under an amendment that would protect all human beings, it would be redundant to have a law specifically citing a 20-weeks ban, but it would not need to be repealed. However, a 20-week ban that explicitly includes exceptions for rape and incest would need to be repealed or amended to exclude that exception under a Personhood amendment.
The position of Personhood USA and the National Personhood Alliance is that any pro-life law that is enforceable and saves lives is a good law unless it explicitly identifies a class of human beings that we may kill with impunity. Personhood opposes explicit exceptions in pro-life laws. We do not make it our goal to pass a slew of incremental bills until the time we may overturn Roe. However, we view “level 2” and higher as being “Personhood compliant” and do not actively oppose those bills.
In the words of NPA director, Daniel Becker:
We consider any bill which protects innocent human life, but does not explicitly mention a class of human life you can kill, as being “Personhood compliant.” This is the same functional definition that Personhood USA’s Board adopted in 2012. I fully agree with [some who say] that these bills are not the best vehicle to advance our agenda for legislative action. Our plan is to foster and promote a library of bills (similar to Americans United for Life) that promotes personhood and focuses public opinion specifically on the underlying issue of Personhood, i.e., a constitutional Personhood amendment or ballot initiative should always be our stated and primary objective. Another example is promoting an adoption bill that would define the pre-born as a "child (Person) not property." That said, we will support any measure that saves lives without compromise or exception. We reject any argument based solely on implication and personal interpretation. Our evaluation of the supportability of legislation should be based on objective explicate wording and effective legal intent.
Another way to state the doctrine of non-maleficence is that, “given an existing problem, it may be better not to do something, or even to do nothing, than to risk causing more harm than good.” Allowing for some compromise on “exceptions” may end up doing more harm than good in the long term. This strategy will reinforce the perception that the pro-life movement is willing to compromise on the same arguments that were the basis for Roe v. Wade, which brought abortion on demand in all 50 states.
As we now examine levels 3, 4 and 5, we should keep in mind that, although not morally compromised, it also may be a waste of time to spend resources on incremental initiatives that draw away from our emphasis on promoting Personhood through education, legislation and ballot initiatives. By settling for what is “good,” but not on the “best” strategy, we might end up doing more harm than good in the long term.
3. Personhood compliant laws that when enforced might reduce the numbers of abortions, but would specifically neither regulate abortion nor include exceptions. Two examples of this type of law are the defunding of Planned Parenthood and using state statutes regulating outpatient clinics (based on patient health concerns) to close non-compliant abortion centers.
4. Personhood compliant laws that do not deal with abortion, but define an preborn child as a Person. Some examples would be laws that extend the definition of homicide to include preborn persons, adoption laws that extend legal Personhood to preborn babies, or tort laws that allow courts to include preborn children as plaintiffs in injury cases.
5. An outright ban on all abortions without exceptions. Certainly, no sanctity of human life advocate would oppose a law banning all abortion. Note that if an abortion ban does not include a ban on human destruction during certain procedures in fertility treatment, various forms of abortifacient drug prescriptions, cloning, destructive human stem cell research, end of life issues, etc. -- then this is an incremental law in that it does not protect all human life. Most would agree that such a law is morally correct since the law does not explicitly condone these anti-life practices.
One then has to ask how an outright ban on abortion that cannot be extended to all sanctity of life issues is any different than a 20-week ban with no exceptions. Does it logically follow that a 20-week ban on all abortion with no exceptions then implicitly allows the killing of the preborn prior to 20-weeks gestation?
National Personhood Alliance’s principle applies here, “We reject any argument based solely on implication and personal interpretation. Our evaluation of the supportability of legislation should be based on objective explicate wording and effective legal intent.”
In simple terms, any law that ends with “and then you can kill the baby” is an immoral law. Of course, no pro-life law states this literally. However, if the law states any exception explicitly, then it ought to be evaluated as having an immoral intent to do harm.
6. Personhood – A constitutional amendment that would protect all human life by recognizing legal Personhood from biological beginnings to natural death. The Personhood strategy is to recognize the sanctity of all human life based on the evident truth that each of us is an image bearer of God. The God given right to life of every human being at any stage of development shall be recognized and protected. This is the principle goal of Personhood USA, the National Personhood Alliance and the Personhood state affiliates. We ought to focus as much as possible on this one objective.
Personhood is incremental. It is not an immediate strategy. We recognize that prior to passing state and national constitutional amendments, we have a massive work of education to do. The petition process itself is the beginning of the educational outreach and helps to garner volunteers for Personhood campaigns. We also recognize that there will still be disagreement in some cases on how to properly categorize pro-life laws and even to determine from a biblically principled perspective what is a “good” law versus a “bad” law. To judge correctly will require the “wisdom of Solomon.”
Therefore, we agree with the words of Proverbs 4:7-9,
“Wisdom is the principal thing;
Therefore get wisdom.
And in all your getting, get understanding.
Exalt her, and she will promote you;
She will bring you honor, when you embrace her.
She will place on your head an ornament of grace;
A crown of glory she will deliver to you.”