Saint of the Day for May 23: St. Gregory VII (c. 1025 – May 25, 1085)May 23, 2019
Are New Pro-Life Laws Riddled with Loopholes? by John ZmirakMay 23, 2019
By Philip Jeffery, First Things, May 23, 2019
A crop of center-right commentators offered the pro-life movement some strategy tips last week. Responding to apparent pro-life victories in Alabama, Georgia, Missouri, and elsewhere, Jonathan Last, Rachael Larimore, and Ramesh Ponnuru argued that the new anti-abortion laws represent strategic missteps. The new legislation sharply curtailing the abortion regime is not only unproductive, they say, but devastatingly counter-productive.
The argument goes like this. The Supreme Court under Justice Roberts (at least, as currently constituted) will certainly not want to touch the issue of abortion. Thus the laws are bound to be overturned in lower courts and the Supreme Court will simply refuse to hear any further appeals, which means the laws will never be put into effect. Meanwhile, their existence will rally pro-abortion activism and win new donations for Planned Parenthood. In short, the relatively unimportant legal battle will go nowhere, and the all-important cultural battle will be lost. Better to keep taking small steps toward gradually reducing abortions.
Some may dismiss pro-life dissenters from the Alabama law as desperately trying to earn bona fides from pro-choice opinion-makers. That may be true, but I’m more interested in the fact that arguments for an incrementalist strategy largely come from so-called “moderate” conservative voices—conservatives who now advocate incrementalism for everything except democracy promotion abroad.
I find myself wondering—having not forgotten Bulwark writer Molly Jong-Fast’s escapades at CPAC—whether the pro-life commentators now calling the Alabama bill “gross” and arguing for an incrementalist strategydo so because they consider abortion an absolute evil (and genuinely see a better way to combat it), or do so because they consider incrementalism an absolute good. Those arguing for incrementalism are right to point out that we don’t live in an ideal world and must make pragmatic calculations about how to move the pro-life cause forward. But we must escape the defeatist mentality that animates incrementalism. We are not going to make progress if we do not take bold steps forward.
I agree with the incrementalists that Planned Parenthood will likely see a boost in donations. I am skeptical, however, that the Alabama law will “drive pro-choice fundraising for a decade,” as Last puts it. Pro-abortion organizations have never needed pro-life legislators or laypeople to help them drum up support. New York’s infamous abortion law needed no great pro-life victory as catalyst. Hulu’s The Handmaid’s Tale has done more for Planned Parenthood than any state law could—not just as a spur for donations, but as a framing device for the entire debate. The only way pro-lifers can reduce the zealotry of abortion advocacy is to give up.
In truth, the Alabama law is far more likely to increase pro-life fundraising—a topic I haven’t seen critics discuss. Judging by the email newsletters I receive from pro-life organizations, there are two ways to fundraise for the unborn: winning legal or political victories and pointing out the intensity of vocal pro-choice opposition. The Alabama law, for the time being, delivers both. It is up to pro-life activists and organizations to take advantage of the opportunity.
The law is always a teacher. As Maggie Gallagher and Frank Cannon have argued, politics is not always downstream from culture. How many conversations about such issues, from school prayer to same-sex marriage, have been pre-empted by appeal to “settled law”? One reason opinion polling on abortion has remained stable despite apparent pro-life victories and much-vaunted advances in embryology is precisely that the laws are what they are. The constriction of political debate has in turn limited the cultural debate. Pro-abortion laws help make for a pro-abortion populace. By the same token, pro-life laws could be helpful in the battle for public opinion.
Pro-life critics of the Alabama law make a mistake common among conservatives of all kinds: They confuse political strategy with cultural strategy. Even while assuming a sharp boundary between the political fight against abortion and the cultural one, they propose an incrementalist strategy in the law as the way to victory in both battles.
I have come to see this as a convenient self-delusion. Appeals to “hearts and minds” often amount to little more than excuses for political passivity—especially with regard to abortion. Our cultural institutions are dominated by pro-choice partisans. In our context, therefore, prioritizing “culture” without defining an aggressive political and legislative strategy is likely to make the fight harder, not easier.
Accustomed to seeing the world in terms of a sharp dichotomy between artificial, government-imposed order and spontaneous order constructed by individuals, conservatives too easily condemn government action while championing civil society, markets, culture, and personal choice as the proper spheres of their activity. This, too, leads to political passivity. We see this tendency in every hopeful declaration that the spontaneous advance of technology will make abortion numbers dwindle, or that advances in knowledge of embryology will make our case for us. Such expressions of confidence disguise an unwillingness to translate political power into legislation that advances the cause of life.
Incrementalism is a losing cultural strategy. The left did not gain the cultural upper hand by incrementalism. The sexual revolution that gave us the current abortion regime did not come about by baby steps. Cultural battles are won with bold claims and striking images. The left has been winning the culture, especially on issues of abortion, sex, and gender, by offering materially comfortable middle- and upper-class Americans the chance to imitate Martin Luther King Jr., Rosa Parks, and Malcolm X. Abortion thus becomes a great and noble cause. This strategy works because many Americans, especially young men, feel that their lives are unmoored, banal, and hemmed-in by forces beyond their control. They have an itch for moral heroism.
The pro-life movement needs to take a clear stand. Vigorous action and bold law-making does not mean giving up on caring about mothers and children alike. And no organization understands this as well as Planned Parenthood itself. Planned Parenthood has managed to convince millions that it “cares no matter what”—even as its supporters march in the streets, rage on the Internet, and pressure legislatures in New York, Virginia, and elsewhere to do their bidding. How much better could the pro-life movement be at playing that game, by providing actual care and actual results in statehouses?
Proponents of incrementalism assume too easily that it is the only option in a struggle for hearts and minds. They propose a contrast of temperament—the “calm,” “nice” pro-lifers who take things slowly against the obnoxious pro-choicers who want extremist laws. But what is the point of remaining nice and calm if your opponents convince everyone that your calmness is akin to Eichmann’s in Jerusalem?
We need to face reality. No matter what we do, pro-abortion activists will call us Nazis and moral criminals. It is senseless to cede the role of moral crusader to pro-choicers. The important contrast is not one of temperament, but of morals. We should defend the Alabama law because it clarifies the moral stakes. It insists that the question at hand is not about week-cutoffs, exceptions, and the marginal cases that dominate debate, but about whether abortion ends an innocent life. That is where our political strategy needs to start, not end.
Philip Jeffery is a Public Interest Fellow working as a writer and editor in Washington, D.C.
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