Roe v. Wade is clearly in for substantial pruning—possibly even an outright overruling—in the near future. Thus the ball, so to speak, will be in the pro-life court.
As James Davison Hunter’s article in this issue reminds us, Americans do not accept the positions of either the pro-abortion or the anti-abortion activists, but rather they agree with some elements of each. Most Americans agree that what is at stake in abortion is human life, and conclude from this that abortions ought therefore not be performed for less than a serious reason. They are sympathetic to abortion when it comes to the “hard cases,” that is, life of the mother, rape and incest, and serious fetal deformity. They also tend to think it more legitimate to have an abortion early in pregnancy rather than later. In other words, they are generally ambivalent.
One thing, however, seems quite certain: If Americans are given a choice between a pure pro-life position (no exceptions) and a pure pro-choice position, they will certainly choose the latter. In a culture that emphasizes individual liberty as much as ours does, ambivalence on an issue like abortion can easily translate into rhetorical power for a “pro-choice” position—unless, that is, the pro-life movement adopts a flexible political position that accepts the most that prudent action can attain in the present state of American attitudes.
Now it could be said that Americans will not be given a choice between two “pure” positions, because there will always be different shades of opinion represented in the legislatures that consider the issue, and the result will be some sort of compromise. And if the final result of each legislative battle will be compromise, some might argue that the pro-life movement must be as unyielding as possible in its demands in order to improve the outcome of the negotiating process.
The problem with this argument is that the vote in the legislature (especially after the demise of Roe v. Wade) would not be the crucial one. The crucial votes are those cast in elections for the legislators. The key question, then, is how to win enough of such elections to obtain pro-life legislative majorities.
Before Webster, the pro-life movement had one tremendous advantage: it could unite people—at least those who were aware of the real provisions of Roe—against a very extreme status quo. Even people who might favor abortion in a small number of hard cases could be aghast at the almost unlimited right to abortion afforded by Roe. With the cutting back of this decision, however, it will no longer be possible to build a powerful political movement simply on the basis of opposition to it. A larger number of voters will be concerned with the question of what will take its place. The withdrawal of the judiciary from the issue—even if, as is most likely, the withdrawal is only a partial one—inevitably shifts the focus to legislative battles. And the problem this poses for the pro-life movement is that many of the people who are aghast at Roe will be no less so at a pro-life position that is completely unyielding on the other side.
Given a choice between someone running on a Planned Parenthood (or national Democratic party) abortion platform and someone running on a no-exceptions pro-life platform, most citizens will—perhaps even with misgivings—vote for the former. (The term “no-exceptions” here should be understood to include positions that have an exception only for the life of the mother.) On the other hand, given a choice between a “pure” position and a compromise position, most of the same voters would choose the compromise. It is harder to say what voters will do if given a choice between two compromise positions. For example, what if one generally pro-life candidate favored allowing exceptions in the “hard cases” and another generally pro-choice candidate accepted a prohibition of third-trimester abortions and those based on sex selection? The generally pro-life position would have at least a good shot at carrying the day, though one cannot really be sure.
But does it make any sense to talk of a “generally pro-life position”? Does not the very allowance of exceptions undermine the position by forfeiting its grounds in principle? Moreover, would not such a position be seen as a politically disastrous “waffle,” even by those voters who are in the middle themselves? In short, is there such a thing as a morally acceptable political compromise on abortion?
A good way to find the sound affirmative answer to this question is to look at St. Thomas Aquinas’ answer to the problem of “whether it belongs to the human law to repress all vices?” (Note that “vices” here refers not to personal foibles but to clear moral evils. Summa Theologica I–II, Q. 96, Art. 4.) St. Thomas says that laws imposed on men should be in keeping with their condition, for (quoting Isidore) law should be “possible both according to nature, and according to the customs of the country.” This possibility is related to interior habit or disposition, some things being possible for one who has a virtuous habit that are not possible for others. “Human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft, and suchlike.” In one of the responses, Aquinas adds that the danger of imposing on imperfect men precepts that they cannot bear is that “the precepts are despised, and those men, from contempt, break out into evils worse still.”
On the question of abortion, to be sure, this analysis can cut both ways. Those who argue for an uncompromising position could point out that abortion falls precisely into the category declared by St. Thomas to be the area where law should repress vice, that is, the area where harm is done to others—particularly, of course, the crime of murder. Since abortion is a species of murder, it ought to be repressed.
But to take such a position is not the best way to apply St. Thomas’ analysis. For one thing, the general criterion he offers for determining which vices human law may forbid is those vices that the majority of human beings are able to abstain from. The quotation from Isidore above suggests that this possibility is defined not just with respect to human nature in general, but also with respect to the customs of the country. The question of which vices the citizens of a given community are capable of abstaining from is an empirical one.
For another thing, while St. Thomas says that the vices from which a majority can abstain are chiefly those that cause hurt to others, without the prohibition of which human society cannot be maintained, that does not necessarily mean that any action involving serious harm to others should automatically be repressed. For example, it may not always be possible to enforce laws against prostitution (II–II, Q. 10, Art. 11), though men’s transactions with prostitutes clearly harm wives and children. That acts harming others need not automatically be repressed is especially clear if one gives due weight to the qualification “without the prohibition of which human society cannot be maintained.”
Moreover, the reference to murder need not be interpreted as applying to every act that is murder. If we are talking about laws without which human society cannot be maintained, then the reference seems to mean that we cannot forego murder laws in general . But there can be laws against murder in general without prohibiting every single form of murder. Even if it is true that inconsistency on this point “tends” to undermine society, it is nonetheless also true that many human societies based on great injustice have been able to maintain themselves for a long time.
This does not mean, of course, that the law should repress only those vices without the prohibition of which human society could not be maintained. The criterion here is that the law should repress those vices which men of imperfect virtue are by nature and by the customs of their country capable of abstaining from. Again, the question here is an empirical one.
Another criterion to be considered is that of the greater evils that can occur if a particular evil is not tolerated. For one, there is the consequence that the law will be despised and that those who cannot bear the law will, from contempt, break out into worse evils still. It is not hard to see that the inability of society to enforce a law may lead to disrespect for law. While the example is by now overdone, the case of Prohibition in the U.S. illustrates the danger very vividly. It seems most likely that an abortion law with no exceptions would be widely disobeyed. What might be the greater evils to follow from this? One would be the development of a thriving black market in abortions—one that would take all comers (rather than limiting abortions to particular cases), thus resulting in more deaths. An effect more difficult to predict and evaluate would be the effect on the body politic as a result of the disruption, including hatred and violence, that might accompany an abortion law that greatly exceeded what the customs of our country would accept. Finally, perhaps the most obvious “greater evil” of a no-exceptions abortion law would be simply that it would never pass; the law would then allow many abortions that might as a result of compromise have been prevented.
Applying St. Thomas’ analysis, thus interpreted, one can argue that abortion in general should fall in the category of vices that ought to be repressed (the customs of our country are not so corrupt as to require abortion on demand), but one can also argue that the law would be prudent to withhold criminal punishment from certain forms of abortion (since the customs of our community clearly do make a total proscription of abortion impossible).
At this point, it seems useful to make some distinctions about the term “compromise.” It is important to understand that the advocacy of political compromise does not involve compromise on the moral issue of abortion itself. Morally speaking, it is never acceptable directly to take the life of an innocent person, which the unborn child always is. (“Directly” means that, in some cases, it may be possible to permit the death of the unborn child as an unintended but unavoidable side effect of another action that is morally good, e.g., the case of removing a cancerous uterus.) “Legitimate” compromise on abortion, then, should always be understood to mean political compromise, that is, compromise about when the law should punish abortion as a criminal act.
Political compromise itself can be subdivided into at least two basic types. The first is what may be called “tactical compromise.” This involves fighting in the legislature to obtain a prohibition of all directly procured abortion, using all one’s resources possible to obtain this end, but when the final vote arrives, accepting something less than that complete prohibition because nothing more is possible at the moment. For example, Henry Hyde has provided admirable pro-life leadership in congressional battles over the years, working to prohibit any funding of abortion; but on some occasions he has been compelled by political realities to cast a final vote for bills that have allowed funding in some cases, e.g., cases of rape and incest. This kind of political compromise is very limited, for the vote in favor of such a law is occasioned only by immediate political necessity and it simply leads right into the next political battle to achieve complete prohibition.
The second, perhaps more debatable, kind of compromise (the one I want to advocate) may be called “strategic compromise.” A prudent strategic political compromise on the abortion issue would start with a reminder of what we all agree on: the political battle is merely one front in a larger war; the ultimate goal is not merely to obtain laws that will forbid women to have abortions, but to form a polity that recognizes the sacredness of human life and whose citizens reject abortion as a violation of that principle. The “cultural” battle is not separate from the “political” battle—there is an intimate connection between the two—but there is a difference. At least part of that difference has to do with the nature and limits of law.
A strategic compromise on abortion would pursue the full moral principle at the level of the cultural or educational battle, while at the political level accepting “for the time being” laws that do not prohibit all abortion, or at least explicitly withhold criminal punishment for some of them, i.e., abortion “in the hard cases.” “For the time being” means until public opinion can be brought around to the view that all abortion is wrong. Such compromise therefore goes well beyond the kind of tactical compromise that is forced, say, on a legislator in a given political vote, since strategic compromise amounts to a kind of temporary political “truce” on the exceptions.
This truce is limited to the political battlefield—it does not apply to the cultural one. In some ways, this might be likened to U.S. policy in the Cold War, in which the country adopted a strategy of containment, accepting for the time being the immoral conquests of the evil empire and looking forward to some day in the future when the Soviet Union would either mellow or collapse (largely through defeat in the “war of ideas”). And—to spell out one of the less than fully palatable implications of this strategy—just as the containment policy led the United States to avoid using tactical opportunities to make inroads into the Soviet Empire, for example, as in the case of the Hungarian Revolution of 1956, so the pro-life movement might not for the time being automatically press for the most protective law that short-term political circumstances made possible.
For example, it is easy to imagine a situation in which a series of political “accidents” might give strong pro-lifers a majority in the legislature of a particular state in which at the same time public opinion would not support the prohibition of abortion without exceptions in the hard cases. In such a case, political prudence might suggest that a no-exceptions bill not be pushed for in the legislature, even if the votes were there.
A parallel instance of the latter argument is provided by the current situation faced by Catholics in Poland. In view of the power and prestige of the Church there, derived both from history and from the Church’s leadership in the resistance to Communism, it is tempting for Catholics to push for laws that embody moral principles as fully as possible. But an effort of that kind—even if successful in the short run—seems likely to produce a substantial backlash against the Church, with a substantial forfeiting of the Church’s influence in politics and in society (along with the eventual repeal of the laws).
Closer to home is the current example of New Jersey. The New Jersey legislature has a Republican majority that is largely “accidental,” a popular reaction to unpopular tax policies of a Democratic governor. Should pro-life legislators press to obtain the maximum pro-life legislation that could be passed in this session? Or should a pro-life legislative strategist consider, not just what could be obtained by a vote of the current legislature, but also whether this legislation could be maintained and whether it might, due to a backlash, lead to something far worse?
Both tactical and strategic compromise are based on prudential considerations. Since part of the prudential norm is that exceptions be tolerated only as much as and for as long as they need to be tolerated, there is a natural tendency to look at things from a short-term perspective (“do we have the votes now?”). That might well be a mistake, especially in a democracy, where elections occur regularly and are often affected by accidental factors. Our prudential evaluation of circumstances affecting how closely we can bring our law into line with the moral law (and in this case, the moral ideal is clearly the political one as well) ought to consider the ways in which short-term “successes” built on accidental factors might lead to disaster.
The legitimacy of this position turns on an important assumption, namely, that a disputed question of moral philosophy can be resolved in its favor. One of the foundation principles of morality is that evil may never be done (directly intended) to obtain good, though evil may sometimes be “tolerated” as a side effect in order to obtain a greater good. Some pro-life moral philosophers are concerned that when strategic political compromise counsels that we sometimes not pursue the full protection of the innocent for which we have the votes right now , that is directly willing an evil (the injustice of failing to protect some unborn)—not as an end in itself, of course, but as a means to protect other unborn children. Those of us who advocate such strategic compromise are convinced that proper moral analysis will show that it does not directly will an evil, but merely tolerates it as a side effect. Part of my purpose here is to stimulate the necessary discussion of this important question.
In considering what pro-life strategy should be, it is necessary to keep in mind that ultimately the resolution of this issue must be accomplished at the national level. Simply returning the issue to the states cannot be a long-term solution. For one thing, some of the states that are likely to maintain strong pro-abortion laws, such as New York and California, account for a large percentage of the abortions in the country. For another, state anti-abortion laws will increase the price and the difficulty of an abortion by exactly the price and difficulty of a bus trip to a pro-abortion state. The increased cost and inconvenience may reduce the number of abortions, but hardly significantly. In the long run, then, the resolution of the abortion issue must be achieved by a Human Life Bill in Congress (pursuant to its power to enforce Fourteenth Amendment “equal protection of the laws”) or, more fundamentally, by a Human Life Amendment.
It is, however, also necessary to point out that a national resolution is not imminent, to say the least. The national Democratic party is firmly controlled by pro-choicers, and the Congress is firmly controlled by Democrats. In the near future, then, the pro-life movement must continue its incremental strategy, focusing primarily on overturning Roe v. Wade, so as to make abortion restrictions legal at the state level, and then on obtaining whatever protections are possible state by state. These efforts will typically start with the areas that have the strongest support in public opinion, using whatever victories are achieved to educate and to build political momentum for future and broader legislation. Given the considerable variations in public opinion among the different states, the legislation it will be possible and prudent to pursue in one or another will vary substantially.
A more difficult question is whether, since the national battle must remain the ultimate focus, state battles ought to take into consideration the possible effect of state laws on national public opinion. And if highly protective state laws (e.g., those that would allow exceptions only for the life of the mother) would provide ammunition for the national pro-choice movement, then prudence might suggest second thoughts about them. (This too raises the disputed question of moral philosophy noted earlier.)
It could be, and indeed is, objected that the policy of strategic compromise would be both morally and politically disastrous. This objection must be taken seriously. How can avowedly “pro-life” candidates, whose position is based on the contention that abortion is taking the life of an innocent human being, compromise on the hard cases, without appearing to be, and being, unprincipled? Besides, voters may disagree with public figures who hold fast to principle but they positively despise those who compromise their principles merely to win political power. Look at the electoral fate of such “wafflers” on this issue as the candidates for governor in New Jersey and Virginia in 1990.
Nevertheless, a strategic compromise that forbids abortion in general but withholds criminal punishment of abortion in the hard cases is compatible both with principle and with electoral necessities.
An example of such a compromise law would be the Utah abortion statute, as amended in 1991. This law would limit abortions to those “necessary to save the pregnant woman’s life” or “to prevent grave damage” to her health or “to prevent the birth of a child that would be born with grave defects”—all of these to be determined “in the professional judgment of the pregnant woman’s attending physician”—and to cases where the pregnancy is a result of a previously reported act of rape or incest, and within twenty weeks of conception.
Ideally, this law would be reformulated so that instead of “authorizing” abortion for the exceptional circumstances, it would prohibit abortion in general, explicitly withholding criminal sanctions in the exceptional cases. (It may also be that leaving decisions to the judgment of doctors would have the practical effect of preventing effective enforcement of the law.)
The above concerns aside, why is a law like this a morally acceptable political compromise? To begin with, the strategic compromise position is in no way based on the contention that abortion, very much including the hard cases, is morally legitimate. Its advocates must emphasize that their overall position continues to be that abortion is always wrong because it involves the direct killing of an innocent person. Moreover, they should indicate that they intend to pursue the long-term goal of persuading society that abortion is always wrong, thereby establishing the conditions of a law that fully respects the moral principle of the sanctity of innocent human life. The classic model here is Abraham Lincoln, who was able to favor a compromise solution on slavery “for the time being” while making very clear his full commitment to the principle that slavery is wrong.
What then is the basis for such a compromise? It is based on the limits of politics and of coercive law. The fact that something is contrary to the moral law does not automatically mean that it ought to be forbidden by civil law. When a society is deeply divided on a moral issue, it is not always possible or prudent to try to settle the matter fully by the coercive power of law.
A large majority of Americans think that as a general rule innocent human life should not be destroyed. There may even be a majority who believe that human life, in some sense, begins at conception. This by itself would seem to provide a sufficient basis for a law generally prohibiting abortion. Unfortunately, however, there are many Americans who believe (1) that the value of unborn human life, important as it is, does not always override other serious values, and (2) that there are different levels of importance to life at various stages of pregnancy. Until we can persuade such people that it is a mistake to “balance” human life against those other values, it would be imprudent to embody in the criminal law an absolute ban on abortion.
The difference with the “hard cases” is precisely that they involve genuine difficulties that make it much harder for most ordinary people to live out the implications of respect for life. Abortion in the case of a threat to the life of the mother is the best example, since it is possible that one of the very highest prices will be exacted from the mother, father, and the rest of the family for adherence to the moral law. Rape and incest, serious health problems for the mother (those that may inflict substantial and irreparable physical harm), and grave fetal deformities (those which, again, are serious and irreparable) also constitute extremely difficult circumstances under which to bear a child.
It is no answer to such problems, politically speaking, that they occur in only a few cases and therefore are not relevant to the abortion debate. Not surprisingly, public opinion would refuse to accept that, and would argue instead that precisely if it is “only” a few cases, then exceptions for them ought to be permitted.
One does not want to exaggerate the difficulties of pregnant women in these situations, as is often done; still, it is desirable to avoid a certain kind of obliviousness to human suffering that adherence to principle can sometimes lead to. And it is imperative that those who represent the pro-life movement make clear their compassion for those who suffer, even while refusing to concede that sympathy for the suffering can justify the commission of morally evil acts. (Equally important must be the denial that abortion, on the whole, alleviates suffering; rather, it must be firmly maintained that abortion deals only with symptoms, serving as an excuse not to deal with the real, underlying causes of suffering.)
None of these circumstances changes the basic moral issue, since such considerations do not justify doing a moral evil. They do, however, have an impact on the moral burdens that human beings of “imperfect virtue”—“ordinary people”—are able to bear. This would be true, I would guess, in most times and places. It is especially true of our contemporary culture, in which many of the “customs of the community”—affluence, materialism, sensuality, utilitarian morality—tend to undermine people’s fortitude in dealing with moral choices that involve pain or discomfort. This may be a strong argument for using issues like abortion to educate people to a deeper sense of the priority of “the good” over “the pleasant,” but in our national circumstances it would not be prudent to try to accomplish this education through the coercive power of the criminal law.
Putting this argument in a somewhat milder, more rhetorical form (it would probably not be advisable for candidates in elections to tell people that most of them fall in the category of “those of imperfect virtue”) one can say that human law, especially the criminal law, does not ordinarily demand “heroism” of people. (I say “ordinarily,” of course, because in some situations the law must require heroism. For example, a person could not obtain the return of a kidnapped wife by agreeing to the kidnapper’s demand that he kill another innocent person. In principle, that heroism is what the ideal law would require with respect to abortion in the hard cases as well. But something short of the ideal may be necessary in the circumstances of a given polity.)
The pro-life movement can, and ought to, exhort people to respond heroically to difficult moral circumstances. One way in which many pro-lifers do in fact exhort is by setting an example themselves: helping people in those circumstances, with much self-sacrifice. But to demand heroism through the criminal law is likely to breed widespread resentment, disrespect for the law, and illegal action (both public civil disobedience and surreptitious evasion of the law). It is also likely to lead to a political backlash that results in repeal of the law, that discredits those who supported it, and that makes for legislation far worse than the moderate measure that might have been secured in the first place.
Nor would strategic compromise have to appear to be a “waffling” position. Of course, if not articulated and defended properly, it might come across that way. But the “wafflers” who went down to defeat in New Jersey and Virginia in 1990 were not men who had clearly and forcefully enunciated the kind of strategic compromise described here; they seemed rather to be trying to duck the issue or push it to the side.
The greatest virtue of strategic compromise is that it will save many lives that might otherwise have been lost. If a policy of strategic compromise succeeds, it will eliminate a large percentage of our current abortions, numbered these days in the millions.
How many abortions there would be under such a dispensation is hard to say. It would depend partly on the care with which the policy is drafted, so as to prevent exceptions from becoming large loopholes. (One presumes that at least some in the medical profession will try to help pregnant women to evade the law.) It also will depend on strong pro-life efforts to back effective enforcement efforts.
This justification based on the limits of law would not be readily available for another possible kind of compromise, which I think the pro-life movement ought to avoid, with one (unfortunately massive) exception. In general, pro-lifers ought to avoid drawing lines on the basis of the stage of pregnancy. That would undercut the principle of respect for human life far more than making exceptions in the hard cases by permitting abortions for something other than “serious reasons,” permitting it indeed for any reason, however trivial. Obviously, it is lamentable that the law should embody a principle that fails to respect human life (against direct taking) for any “reason.” But at least requiring a “serious reason” preserves some fuller sense of the principle. Such a law would, in addition, be much less likely to reduce substantially the number of abortions that would occur (the “greater evil” that toleration of the lesser evil attempts to avoid). Planned Parenthood and its allies would simply have to work harder to catch pregnant women earlier in pregnancy—which is in any case when most abortions already occur.
The one, unfortunately necessary, exception to avoiding stage-of-pregnancy lines is one at the beginning of pregnancy, i.e., the case of abortifacient “contraceptives.” The tendency of many ordinary citizens to say, “If it looks like a baby, it must be a baby”—which helps to provide the pro-life movement with much of its support—also has the effect of depriving the pro-life movement of support when “it” doesn’t look like a baby, that is, the time immediately after conception (and at least through implantation). That factor, plus the deep attachment of American culture to contraception, means that an effort to prohibit abortifacient contraceptives would be hopeless. It would clearly discredit the pro-life movement with many people.
Unfortunately, the battle is likely to shift to that front. One can see that in Laurence Tribe’s exaltation of the principle of “privacy in the home,” even as he expresses some misgivings about Roe v. Wade . The misgivings do not lead him to oppose Roe—he supports it by adding an equal protection argument—but his enthusiasm for the decision is decidedly muted. It seems plausible to speculate that he is hoping the abortion issue can be resolved by the advent of the “abortion pill” that can be taken in the privacy of one’s home. (Not, by the way, RU-486. A pill that requires a woman to deliver a dead baby is not likely to be the abortion movement’s “magic bullet.” Neater, less messy pills that are variants of today’s abortifacient contr
