Ask Chris Tollefsen: An Ethics Advice Column

Editor’s note: The reader’s question was edited for clarity. 

A “concerned pro-lifer in Nebraska” writes as follows:

Is it moral for pro-lifers to support government measures that only incrementally reduce access to abortion? Or should they feel morally compelled to support solely comprehensive bans? 

I live in Nebraska, where some pro-lifers have told me they are not going to vote for the upcoming pro-life ballot initiative “Protect Women & Children,” which would place a near-total ban on abortion after twelve weeks in the Nebraska constitution. They say it would be immoral to vote for this measure because it would still allow some abortions. At the same time, there will be a competing pro-abortion initiative on the ballot that would add to the Nebraska constitution a “right” to abortion after “viability” and, in effect, bar state health authorities from regulating health conditions for women at abortion clinics (this would be the implication of the passage “without interference from the state or its political subdivisions” in this proposed measure). 

If enough pro-lifers in Nebraska vote against “Protect Women & Children” or abstain from voting altogether, this could contribute to the pro-abortion measure passing. If, on the other hand, enough pro-lifers vote for “Protect Women and Children,” Nebraska would become the first state to include abortion restrictions in its constitution. 

My thanks for this question, which is of crucial importance for the pro-life movement going forward.

The fall of Roe v. Wade in 2022 marked a high point for pro-lifers in recent years. An extraordinary act of judicial overreach, Roe was unjust both for its almost complete stripping away of legal protections for the unborn, and for its judicial seizure of power. The argument that unborn human beings should be considered persons under the Fourteenth Amendment is, I believe, very strong. Nevertheless, it is better that power to make reasonable decisions be returned to the people than that the federal judiciary continue to make national, highly permissive, and unconstitutional abortion laws for the nation.

But the Dobbs case created political exigencies for which the pro-life movement was apparently unready. Our politicians have been unwilling or unable to explain the pro-life position effectively, and we have been outmaneuvered in ballot referenda, in the media, and in the court of public opinion. And so for now, abortion is a winning issue for Democrats, surely one reason—besides the predictable inconstancy of our former president—for the weakening of the Republican platform on abortion.

So what is to be done? There continues to be an urgent need for pro-lifers to make the argument for the unborn clearly, persuasively, and often. When people say that now is not the time for words but action they are very badly mistaken: the pro-life judicial case was won with arguments, and there is no reason to think that the moral and political case can be made without them.

There is also an abiding need to provide adequate support to expectant mothers, to improve pre- and post-natal medical care, to reduce maternal mortality rates, and to combat misinformation about what laws protecting unborn life do and do not do, especially when that misinformation comes from the mainstream press. Pro-lifers need to show clearly that laws that protect the unborn also can and do protect mothers experiencing medical emergencies, and they need to rebut charges that pro-life laws put pregnant women at risk.

There is also a need to vote wisely. This brings us to our questioner, who references the ongoing tension between incrementalist pro-lifers and maximalists. The former believe that a realistic assessment of what is politically possible should lead pro-lifers to propose and support legislative and ballot measures that give the best possible hope for the protection of the unborn: the best possible hope here and now, with the intention of continuing to work for superior measures of protection in the future.

The maximalist approach, by contrast, favors no concessions to the politically possible and urges instead that only measures that achieve full justice for the unborn should be proposed or voted for. By the maximalist standard, the Nebraska initiative falls short, as it adequately protects unborn human beings only from the second trimester onward. To vote for that measure, by the maximalist account, is to vote for a permissive abortion law, and hence to vote in favor of abortion.

The maximalists are not wrong that the incrementalist Nebraska ballot measure will not, if successful, achieve all that justice requires. Unborn human beings are just as fully human as any reader of this essay, entirely equal to us in their humanity, and thus entitled to all the moral and legal protections that you, the reader, or I, the author, am. Maximalists are not wrong to mourn the radical misguidedness of a culture that refuses to look squarely at these truths, and that casually offers expectant mothers the legal option of killing their unborn child when and if they so choose.

But maximalists are wrong in their opposition to incrementalism. And they’re wrong in a way that threatens the very human beings that pro-life defenders of the unborn uniquely claim to care about. For if a more permissive measure is adopted rather than the less permissive (but still imperfect) measure, that will mean the actual death of many unborn human beings who otherwise would have been protected. Those actual babies’ lives are the cost of the maximalist’s unwillingness to compromise.

Of course, some things should not be compromised: no pro-lifer should be willing to “compromise” on the commitment to the unborn.  “But is that not exactly what incrementalists are doing?” the maximalist might object. “Don’t they themselves ‘sell out’ the unborn children who will not be protected by the still somewhat permissive measure they support? How can the incrementalist say that the costs are disproportionate only on the maximalist side?”

To answer this objection, we need to first see that the incrementalist does not intend the loss or lack of legal protection for the unborn that the ballot measure will bring about if approved. The incrementalist is thus unlike a “moderate”—and quite misguided—“pro-choicer” who thinks that killing a human being is only wrong after a certain gestational date: the first trimester, viability, passage through the birth canal. The moderate is unprincipled, for there is no non-arbitrary point after a new human being comes into existence to which one could point and say, with good reason, “These human beings deserve moral and legal protection but those do not.”

The moderate, thinking abortion is valuable at whatever time the unborn is not owed protection, thus votes for this or that permissive law precisely in order to bring about the permissions. But this is not true of genuinely pro-life but incrementalist voters. Such voters—whether legislators considering a proposed statutory measure, or citizens considering a proposed constitutional amendment or other ballot initiative—vote precisely for the restrictions on abortion, and for the legal protections they afford. They recognize that not every needed protection will be achieved, but they certainly do not intend that imperfection as a means or an end.

It is a maxim of a reasonable agent that he or she never does evil in order that good may come of it. So it would indeed be wrong to vote for a permissive law in order to achieve some great good, even a great good for the unborn. But again, that is not what the upright incrementalist does: he or she votes to protect the unborn by restricting abortion in the more or less only way that is currently possible.

Does the incrementalist then accept as a side effect the law’s imperfections, and the deaths of the unborn that will come about in consequence of those imperfections? While this is a harder question, I think the answer is negative. What is voluntarily accepted is what we are in some way answerable for even though not directly chosen: were we to choose otherwise, those side effects would not occur. So our choices have some bearing on whether those effects will or will not take place, even though we do not intend them.

If, for example, I choose to take medicine for my cold that will also make me drowsy, then the drowsiness is a voluntarily accepted side effect of my choice. I don’t choose the drowsiness, but still, if I were to choose otherwise, I could avoid it. Thus, although it is a side effect, it is one that I am answerable for: because it is a (somewhat) negative consequence that I could avoid, I must have good enough reason to voluntarily accept it in choosing to treat my cold.

But the legal permission of abortion that is common to the pro-choice and the incrementalist legislation—that abortion is permitted through the first trimester—will be enacted regardless of what the incrementalist does. No vote of hers can stop that from happening (here and now). So there is no real sense in which the incrementalist pro-life voter is answerable for that injustice to the unborn, since she or he has no control over whether that legal provision will be realized.

There might, of course, be other side effects of voting in favor of the imperfect law: it is a possible side effect of voting for the incrementalist legislation that others will question your pro-life commitment. But one could avoid that side effect by proclaiming his reasons for voting this way and identifying his future pro-life intentions. I will return to this point shortly.

Now, what of the maximalist? What is the maximalist voter answerable for? I grant that it would be unjust to suggest that the maximalist intends the death of those children who will be aborted if the most permissive legislation passes as a result of the maximalist’s refusal to support less permissive legislation. The maximalist is not choosing the permissive law in refusing to vote for the incrementalist law.

But the maximalist surely does accept the risk that the incrementalist law will fail and that, as a result, those unborn children who would have been protected past the first trimester will now be at risk of abortion and sometimes aborted. On the account I have given here, the maximalist is answerable for accepting that risk and should have a very good reason for accepting it. What is the reason for accepting that risk, and is it a good one?

The maximalist’s reason is that she mistakenly believes that to vote for the incrementalist law would be to vote for abortion. But that is an error, as I have shown. It cannot be a good reason to accept the risk to unborn children that she does accept. To abstain from voting, and run the risk that the more permissive legislative measure will prevail is thus unjust to those children the maximalist refuses to help save.

There is one more issue to address. As I noted above, the incrementalist is, or should be, alert to the genuinely possible side effects of supporting the imperfect law, such as failure of witness and scandal. To act justly, she should seek to minimize those effects.

How so? By doing the following: the incrementalist must resolve to continue to work for fuller (and eventually complete) legal protection for the unborn; she must make publicly clear why she is voting as she is to prevent the scandal of leading others to think that partial protection is all that justice requires; and she should never become resigned to accepting only what is possible here and now, rationalizing the “best that we can do now” as the most that we should aspire to.

If those conditions are met, then it seems to me that the answer to “concerned pro-lifer in Nebraska” is plain: for one thinking clearly about the issue, the incrementalist approach is not only permissible, but obligatory, a matter of justice to those unborn human beings who can, but otherwise will not, be saved.

Submit your own ethical questions to Chris or read a few of his previously published ethics advice columns here and here.