The Heartbeat Bill and the Threat of Incrementalism

Last week, Governor Jack Dalrymple of North Dakota approved the “fetal heartbeat bill,” considered the most restrictive abortion law in existence in the United States.

According to the New York Times, the new law is part of a larger effort to test the limits of the landmark Supreme Court decision, Roe v. Wade, which permitted abortions until a fetus was viable outside of the womb on the dubious constitutional grounds of protecting privacy. Activists hope to eventually challenge the constitutionality of Roe v. Wade, in the hopes of overturning the ruling. In the mean time, however, the strategy appears to be a slow but steady process of making abortions more difficult to obtain, shortening the window of opportunity for women and attempting to ban all abortions for morally unsettling purposes like gender preference or disease. In other words, incrementalism.

While the large number of anti-abortion bills being considered is heartening, laws like the one passed in North Dakota have some pro-life groups worried that they may be counterproductive. The Times characterized this “‘extreme wing’” of the movement as impatient and aggressive. I believe that’s because they fail to recognize the philosophical threat that incrementalism poses to the movement. The threat originates from the fact that the pro-life argument is an essentially deontological one. While perhaps backed by the moral force of religious teaching or emotional plea, advocates need only appeal to an absolute sanctity of life and assert that murder is an absolute wrong as a breach of a negative duty to others. The classic pro-choice counter response is that a fetus isn’t a life and that it therefore isn’t entitled to legal protection. The strongest response to this objection is to challenge a pro-choice advocate to offer a compelling moral distinction between a baby and a fetus at any stage of pregnancy after conception, whether it be a heartbeat, external viability or sensory nerves, thus revealing the ultimate arbitrariness of such distinctions.

The problem then with incrementalism is that it moves the debate from the deontological realm of absolute rights of person, to a relative, consequentialist calculus of costs and benefits. By appealing to societal unease instead of absolute moral truth, bills like the one passed in North Dakota, while admirable in their aim, misrepresent the pro-life position as a simply more conservative, squeamish or restrictive version of the pro-choice position. Bills that ban abortion on the grounds of gender suggest that abortion is wrong, not because of an unalienable right to life, but because the motive behind the abortion wasn’t sufficiently compelling. Bills that protect a fetus only after a heartbeat, the ability to feel pain or viability has been established, suggest that a heartbeat, sensory nerves or viability are themselves the source of a right to life, and that the definition of life is indeed relative. It follows then that the definition can and must be decided in a legislature or a court, and will depend on the preferences of the dominant party in power.

Ultimately, the strength of the pro-life position rests on an inflexible commitment to the sanctity of life in an absolute sense. Once relativistic arguments are offered, anti-abortion advocates lose much of their moral power. Though incrementalist efforts stand a better chance of succeeding politically, they will remain little else than a short-sighted concession.