Fritsch: Adopting an incremental approach morally licit when faced with eliminating evil

May 23, 2017

Last Thursday, the Texas House of Representatives witnessed the scuttling of more than 120 bills before the 2017 session voting deadlines.

Among the bills kept from a vote were several important pro-life bills, which included efforts to ban (and enforce the existing federal ban) the late-term, partial-birth abortion procedure (HB 200), to require more accurate reporting of abortion complications by medical providers (HB 2962) and to eliminate the wrongful birth legal action (a spur to promotion of eugenic abortion for children with potential disabilities) (HB 434).

It will come as no surprise that individuals who consider themselves “pro-choice” generally oppose such legislation. What is surprising is the criticism of such measures by some who identify as adamantly pro-life.

Such groups are critical because they favor more expansive legislation, including this session’s proposed ban on the most common second-trimester abortion procedure (HB 844) and a ban on all abortions within the State of Texas (HB 948).

These groups have tended to lob vehement criticisms at those pro-life organizations and politicians favoring a more incremental approach and to oppose their measures in the legislature.

Is it prudent to adopt an incremental approach? In examining the question, it helps to examine the legal framework established in 1973 by Roe v. Wade and its progeny. Current federal law prohibits any state from imposing “undue” burdens on abortion access prior to fetal viability (roughly 22 to 24 weeks).

Practically speaking, this means that efforts to outlaw abortion completely prior to viability (cf. HB 844, 948), while laudable in intent, are almost certain to be struck down in the ensuing court challenges; indeed, identical efforts in other states have recently been overturned in the federal courts.
But is there a downside to the passing of such a bill, beyond the fact it is unlikely to be upheld?

Isn’t it better to clearly state our opposition to a grave evil, regardless of the current, unjust nature of the law? So goes the argument which, although understandable, nonetheless ignores the real costs and dangers involved.

Those following this issue will recall Texas’ 2016 defeat in the Supreme Court when HB 2, passed in 2013, was defeated in the Supreme Court.

The basis of the Court’s decision was that HB 2 — a much less restrictive law than some proposed in 2017 — still imposed an unconstitutional burden on abortion.

Not only is there a financial cost to these losses — the State pays not only its own legal fees but (as the losing party) those of the abortion providers as well — but a further cost in political defeat and establishment of a negative legal precedent that can be used to support abortion in future.

What, then, is a faithful Catholic to do? Is the slower and more measured approach morally licit? The answer, as Pope St. John Paul II described in Evangelium Vitae, is yes.

Recognizing the existence of grave moral evil in the modern world, he also understood that there may be no reasonable possibility, at a given time, of eliminating that evil through political means.

In such a situation, a legislator (or a faithful Catholic) may support an incremental approach aimed at reducing the evil to the extent possible — even if not entirely eliminating it; such an approach has the added virtue of prudence.

Using an incremental approach, important gains have been made during this legislative session including, most notably, greater protection of human trafficking victims from coerced abortion. Significantly, the incremental approach has, during the last 20 years, aided in a significant reduction in the number of abortions sought.

At the same time, the events of this legislative session remind us that seeking purely political and legal solutions to social evils are at best half-measures. It is incumbent on us as Catholics not to leave these issues to politicians but to directly address in our own communities the myriad reasons why abortion is ever seen as a legitimate and viable option at all. 

Julie Fritsch is the director of the Archdiocesan Office of Pro-Life Activities.