Thursday, March 3, 2011

Francis Beckwith Replies to Rebecca Kiessling [Scott]

Frank replies:

Rebecca writes (see comments section): "As a strategic means of ending abortion, unprincipled incrementalism has been a complete failure and got us the ruling in Roe v Wade."

At this point, I am going to have to pull rank on you. You really don't know what you're talking about.

First, Roe v. Wade is not the result of a strategy employed after Roe v. Wade. That is actually impossible, unless you believe in time travel and backwards causation.

Second, both the Human Life Amendment and the Human Life Bill of the early 1980s failed to pass. So, based on your reasoning, non-incrementalism is a complete failure, since each was a non-incremental approach.

The problem is how we judge success and failure. But none of us is ever in the position to make that judgment, since success may require literally centuries to undo the damage of the Enlightenment (which took about 300 years to unravel the moral foundations of Western Civilization). If anything, what we have seen over the past decade or so is a real shift in opinion from prochoice to prolife. And it happened after the partial-birth abortion debate and the Born Alive Infant Protection Act (BAIPA), both of which shifted the focus from "choice" to the nature of the unborn. The prolife movement was not going to have a chance unless it changed the question in the debate, which has been largely owned by the other side.

Think about the same-sex marriage advocates. They first began with decriminalizing homosexual acts, then moved to civil unions, and then once those were in place they raised the question, "So, what's the difference between these couples and different gendered ones?" That question could not have been asked in 1970 without snickers from even liberals. SSM is now a reality in at least five states.

Incrementalism is the only way to go, since it shifts the premises assumed by the wider culture making it nearly impossible to resist the next step. In the prolife case, that is precisely the strategy as well. If a child killed by PBA is protectable, why not the one killed by D&C two months earlier by a method no less brutal though its victim is smaller? Or the BAIPA. If the state must save the child who survives the abortion, why not a minute earlier, or a month earlier?

It's not always about what people explicitly believe. It's sometimes about what they implicitly believe and are eventually forced to concede given the trajectory of their worldview.

Incrementalism for its own sake is indeed counterproductive. But incrementalism for the sake of breaking new ground to push people in the prolife direction when they otherwise would not entertain it is ingenious.


  1. The mind that focuses on earthly reasoning will never understand those things that are of God. Words will never convince you what is right or wrong. God is the author of
    "morality". Man only thinks he is.

  2. Wow. Thanks for making my point, Juda. Sadly, you continue to assume that your view is morally superior without offering any argument to back up your claim. You just cite Scripture out of context. Your inability to argue fairly is precisely why your view lacks credibility. It's a self-righteous claim, not a biblical one. Sad.

  3. Francis, you wrote: "First, Roe v. Wade is not the result of a strategy employed after Roe v. Wade. That is actually impossible, unless you believe in time travel and backwards causation."

    Are you trying to say that exceptions were not written into the law before Roe v Wade? As footnote 54 of the Court points out, every state had various exceptions. This strategy of compromising on principle was in force long before Roe v Wade. So you either err in your assessment of what I wrote or you err in forgetting that these exceptions and this failed strategy existed.

    I agree with you regarding general incrementalism. I support doing what we can to save as many as we can now, in as many jurisdictions as we can -- as long as we do not compromise on the fundamental principle that all human lives are worthy of protection. When we allow for exceptions, we compromise on those principles.

    Again, tell me how many times you know of where pro-life lobbyists and legislators have gone back to try to save the 1% -- where they tried to re-write the statute without the exception. If you supported that legislation, then I believe the impetus is on you to persistently and fervently be seeking to get it passed without the exceptions. Did you do that with the Hyde Amendment? We know which organizations make the efforts in D.C. to have all exceptions removed and which ones don't. In fact, some push it. Some craft the proposed law with exceptions already in there. And how about the continued PAC endorsements of those legislators who are the source of the problem -- how many of them have been pressured to vote 100% or lose their endorsement? We had people like Stupak and Kildee endorsed for way too long. Why did it take Obamacare for them to finally lose their endorsements when they had mediocre voting records for years? There is a systemic problem here which has been ignored for way too long. There is so much more we can do to make sure we get legislators who are 100% pro-life. We CAN change the political climate if we revoke these endorsements and demand a 100% pro-life view in order to obtain and maintain the pro-life PAC endorsements. Do you really disagree on that point?

  4. SK so sorry that you judge my following the bible as if I wrote it myself. Wow! I am just going with THE SUPERIOR. If you don't like what I quote take it up with the author!
    Arguing with you also is also fruitless. You can have the last word on earth. God will ultimately have the last word.

  5. Thanks for making my point about carelessly hurling Scriptures rather than arguing for why your view is the biblical one. I wish you the best.

  6. Drew, I think you are mistaken about that. See Hadley Arkes's post above about premises.

  7. SK, are you referring to something in another posting? Could you supply the link?

  8. Drew, Yes. Here you go:

  9. I'm reposting this here from an earlier thread. Perhaps there was a technical error? In any case, I think this is a pretty measured and civil response.

    Why is every incremental legal strategist argument prefaced with "until we can"?

    Friends, I believe you have misrepresented our position. It is certainly not "save them all or save none at all." In fact, many of our good "absolutist" friends spend an enormous amount of energy in an attempt to save children "one at a time" through CPCs, sidewalk counseling, educational projects, campus outreaches, graphic displays, pro-life youth groups, in the fields of science and medicine, from the pulpit, etc., etc.

    Our position is more accurately represented as: "We CAN save them all now!"

    There is a legal strategy, currently employed by a large segment of our movement, that is working towards this goal through personhood initiatives, bills and amendments.

    There are moral objections to incremental measures--where moral reasons for opposing personhood simply do not exist. There are only "practical" objections, legal and strategic. This is why it seems to you and those in your camp that the "absolutists" are always on the "attack"--accusing incrementalists of "throwing some babies under the bus." When presented with a forum, such as this, incrementalists can get pretty nasty themselves--accusing the "absolutists" of "throwing those babies" we can save now "under the bus." When boiled down, it's basically the same accusation. This kind of talk is as unfortunate as those "attacks" you claim are made against incrementalists.

    So, I believe what we have here is a debate regarding the practicality of the solution to reach our shared end goal. And, I, with all my heart, believe you and your camp when you say that you do indeed share our goal of recognizing the rights of the preborn and protecting every human person, born or preborn. I have a great deal of respect for you and Mrs. Johnson. We simply have a disagreement, and we will both fight passionately to persuade our friends.

  10. I go back to my original question--why the preface? Because practically, the incrementalists do not foresee an end to abortion and other important life issues anytime in the immediate future. Personhood advocates do.

    We believe that the personhood strategy will achieve victory. We believe that supporting incrementalist laws for the past 40 years has achieved little in the way of actual results or moving the culture. Instead, we see these laws as a detriment--giving cover to and paving the way for the more moderate personal and political positions. We believe that supporting only those politicians that are 100% pro-life, no exceptions, will achieve the goal.

    Some of us believe in creating a legal train wreck--forcing the courts to consider the humanity, dignity, and full human rights of the preborn. Some of us believe in the 10th Amendment, state's rights, and our founding father's federalist intentions. Some of us believe we don't need the courts at all--just as Dred Scott was never overturned--we can do it with other co-equal branches of government. Some of us believe state personhood movements will give rise to similar legislation on the federal level (like the PBA ban did even after it was ruled unconstitutional).

    We have seen the successes. We believe that it is much more practical to unite under a principle that every human being is a person, created by God with the natural right to life, and to work towards this, than to fight these endless battles on exceptions, rape, incest, life of the mother, regulations, viability, pain, heartbeats, sentience, chemical, medical, and surgical abortion, hormonal birth control, RU-486, Plan B, euthanasia, infanticide, assisted suicide, end of life care, embryonic stem cell research, etc., etc. We believe personhood changes the argument from one concerned with banning an institutionalized medical procedure to a message of recognizing the positive human rights of an entire segment of the population. This is a language everyone can understand. We believe the evidence exists that this strategy is changing the culture.

    These are but a few of the practical reasons for supporting personhood over incrementalism. When you talk about the "political realities" we face, we hear pessimism. Some interpret this as "a lack of faith." I'm truly sorry if this offends you, but we're not in the business of avoiding offense. We're involved in a strategy to put ourselves out of business altogether.

  11. Keith,

    Comments are moderated here, so sometimes there can be a delay in posting them. We have also taken the liberty of not posting the most vile comments that have come on this topic. I just read that we have blood on our hands because of our point of view, among other not as tasteful things. I appreciate all that have contributed to this discussion in a reasonable, productive way.

  12. Ok, Rich. Did the 2nd half of my comment go through correctly?

  13. Rebecca is indeed correct that prior to Roe v. Wade some states--such as Georgia--allowed abortions in certain circumstances, e.g., rape, incest, life of the mother, severe fetal deformity. But it was Texas' statute under dispute, which was a very strong law. It allowed for no abortions except for in cases that the life of the mother is in danger. That's pretty absolutist to me. Nevertheless, J. Blackmun claimed that that exception as well as the lesser prison sentences for participating in an abortion were enough to prove that Texas did not really think the unborn were 14th amendment persons.

    But the fact that Justice Blackmun says this in a footnote does not mean that if all laws were more absolutist than Texas' that Roe v. Wade would not have ruled all limitations on abortion as unconstitutional. It's difficult to believe that 3 votes would have been swayed based on that small detail.

    In fact, I address Blackmun's footnote in a long footnote of my own in chapter 3 of my 2007 book Defending Life (Cambridge University) as well as in an earlier version of that chapter that appeared in the Liberty University Journal of Law, which you can find here: (see footnote 46 on pages 50 and 51)

    This is what I write on the exception issue:

    "Given the sui generis nature of pregnancy, the life of the mother exception is perfectly consistent with, and incorporates the principle that grounds, the common law notion of justified homicide for self-defense. Because a continued pregnancy that imperils a woman’s life will likely result in the death of both mother and child, the law, by permitting this exception,
    allowed physicians and patients the freedom to make a medical judgment that would result in at least one life being saved. Thus, if Justice Blackmun had chosen to exercise his imagination, the apparent inconsistency he thought he had found in the Texas law would have disappeared...."

    Now, the penalty issue:

    "First, if Blackmun is correct that Texas’ laws are inconsistent with its claim that the unborn is a Fourteenth Amendment person, it does not prove that the unborn are not human persons or that abortion is not a great moral evil. It simply proves that Texas was unwilling to “bite the bullet” and consistently apply its position. The unborn may still be a Fourteenth Amendment person, even if the laws of Texas do not adequately reflect that. Texas’ inconsistency, if there really is one, proves nothing, for if the unborn is a Fourteenth Amendment person, then Texas’ laws violate the unborn’s equal protection; but if the unborn is not a Fourteenth Amendment person, then Texas’ laws violate the pregnant woman’s fundamental liberty. How a statute treats the unborn’s assailants has no bearing on what the unborn in fact is."

    "Second, the Roe Court did not take into consideration the possible reasons why Texas’ statutes and those of other states granted women immunity or light sentences and specified penalties for abortionists not as severe in comparison to penalties for non-abortion homicides. These reasons were thought by legislators to justify penalties they
    believed had the best chance of limiting the most abortion-homicides as possible. Thus, Texas’ penalties as well as those of other states were consistent with affirming the unborn as a Fourteenth Amendment person."

    Rebecca, it was not "incrementalism" that gave us Roe v. Wade. It was bad legal reasoning in a culture that wanted abortion to be legal and virtually unrestricted.

  14. I was in such a rush earlier I completely forgot the Texas statute was a life of the mother only exception, The Georgia statutes were the ones that included health of the mother, severe fetal abnormality, and rape. As well as a scheme composed of procedural requirements to get proper approval to perform the abortion.

    Thanks for the reminder.

  15. SK,

    i read the link and i'm not sure how it applies to my any of my posts. i did mention that incremental approaches might save some babies. Was that it? i believe the PBA ban, alone, couldn't save a single baby because it left open other butcher techniques. However, the debate over the PBA ban focused attention on the primary victim of abortion, so it was a worthy discussion on it's own. That discussion may have helped some couples recognize the humanity of their unborn children and thus avoid killing them.

  16. Hi everyone.

    It seems to me the debate is not being framed correctly. Personhood advocates are often fond of saying they don't support laws that end with, "And then you can kill the baby." This is a rhetorical feint as no law ever written in American literally ends with such language.

    What they mean is that they believe these laws give approval to abortion under certain circumstances. But nothing could be further from the truth.

    What must be remembered is that the one-two punch of Roe and Doe said that you can ALWAYS and for ANY REASON kill the baby until it's out of the womb. Since the highest court in our land has ruled that, no lower law or legislature can give a woman more right to an abortion or approve it more.

    Put another way, the abortion license is as big as it could possibly be. State laws can't make it any bigger. The only thing state and local laws can do is limit the abortion license, and they do that quite effectively, all the while making the public more and more conscious of the humanity of the child in the womb.

    So, far from ending with, "And then you can kill the baby," incremental measures really end with "And then you CAN'T kill the baby." If you're a minor and your parents don't know about it, you can't kill the baby. If you don't wait three days, you can't kill the baby. If you won't look at the ultrasound, you can't kill the baby.

    The default position under Roe is you can kill the baby. Incremental measure say, under certain circumstances you can't kill the baby even if Roe says you can. Hopefully, such laws will continue to close the abortion license little by little until such time as it can be done away with altogether.

    With the debate framed that way, there's not only nothing wrong with incremental measures, there's also nothing incompatible between personhood and incrementalism. There's no reason supporters of incremental measures and supporters of personhood amendments can't work side by side. Heck, there's no reason the same person couldn't support both.

    One final note, when personhood advocates throw incrementalists under the bus for being less-than-truly-pro-life, just remember who you're throwing under that bus. You're throwing my boss, Joe Scheidler, Fr. Frank, Troy Newman, Lila Rose, Monica Miller, Bryan Kemper and a host of others who have dedicated their lives to saving unborn babies from abortion under that bus too. Are you sure you want to do that?

    Yours Sincerely,

    Matt Yonke
    Pro-life Action League

  17. Doe v. Bolton was about the Georgia statute, which I think did allow exceptions for rape, severe fetal deformity, and the possibility of severe or fatal injury to the mother.

    This doesn't mean incrementalism caused the decisions, of course. Activist judges with political motives did. Incrementalism is a strategy, not a view.

    Whether it's good depends entirely on whether it's a strategy for a good result and whether it's a good means of getting there. Pointing out that it was used for a bad result and that it effectively got there tells you nothing about whether it's a good strategy for the opposite view, which depends on whether it would be effective to get there.


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