Moreover, the turn from incrementalism is troubling. What is a pro-life legislator to do when offered a legal option that is more just than abortion on demand but less just than much sharper restrictions? Join with pro-choice politicians in voting against the better statute?
As Denny Burk points out, the very statute at issue in Dobbs—the case that just might strike down Roe—represented an incrementalist approach. It only bans abortion after 15 weeks, leaving the vast majority of abortions lawful.
It is true that excessive incrementalism can be imprudent. I’ve written in favor of passing heartbeat bills, for example, precisely because it was necessary to pass laws that were inconsistent with Roe to challenge Roe. It was time to end the incrementalist approach to challenging Roe. The law in Dobbs itself represented a bold version of incrementalism because even though it didn’t ban most abortions, it still plainly contradicted precedent.
But if I’m sitting in a purple state legislature, and my realistic choice is between passing, say, a 20-week abortion ban and no meaningful regulation at all, I’m voting for the 20-week ban. In those circumstances, legislative incrementalism isn’t a surrender. It’s an act of practical wisdom that recognizes that some advance is better than no advance at all.