I recently came across a review of a book that I had
intended to review myself Colin Harte’s
“Changing Unjust Laws Justly” (Published by the Catholic University of
America Press, June 2005)
Review
This is a profound, significant and disturbing book. It is
profound because it deals with a grave subject, abortion law, in a serious and
comprehensive way; it is significant because it looks at the whole question
from an original angle, that of Christian humanism; and it is disturbing
because the questions it raises inevitably challenge the accepted pro-life
strategic response in the decades since David Steel’s Abortion Act of 1967. But
its perspective is not confined to one country or pressure group; although the
author is specifically concerned with abortion legislation in this country and
recognises that opposition to it has come largely from Christian/Catholic
sources, he rightly points out that his book concerns all countries with
abortion laws and is essentially a philosophical enquiry into the essence of
law itself: if ‘justness’ is an essential property of any law, what makes a law
just or unjust? Thus it can also be recommended to all clear-thinking
non-believers.
What, then, is Harte’s theme? Simply that restrictive
abortion legislation, i.e. legislation that attempts to restrict abortion to
certain time limits and categories in order to save some lives, is
intrinsically unjust. This means that it can never be licit to support it or
vote for it. Such an idea seems preposterous at first sight: surely, the
pro-life argument runs, it is right and therefore necessary to try to mitigate
the effects of abortion law if you cannot repeal it altogether. This was
certainly the thinking behind David Alton’s Abortion (Amendment) Bill of 1987,
which argued for an upper time limit on abortions (18 weeks) while conceding to
the pro-abortion opposition that some categories, for instance disabled
children and those conceived after incest or rape, could be excluded from this
time limit. At the time Ann Widdicombe MP described Alton’s proposed Bill as
‘wise, just, humane and civilised’. In retrospect, such a description seems
extraordinary. As Harte explains in his patient, scholarly and courteous way,
there can be nothing wise, just, humane or civilised in a country’s law which
does not protect the lives of its most vulnerable citizens.
As it happened,
Alton’s Bill was filibustered out of parliamentary time so never became law. It
was replaced in 1990 by the Human Fertilisation and Embryology Act, which made
24 weeks the upper time limit for abortions - except for disabled babies who
could now be aborted up to birth. The creation of a time limit and the legal
(and eugenic) distinction between disabled and non-disabled babies, conceded by
the Alton Bill, was largely responsible for such a disastrous legislative
outcome. Not surprisingly, John Smeaton, the national director of SPUC, is wary
of committing his Society to supporting current calls to restrict abortion,
having learnt a bitter lesson from the aftermath of the Alton Bill.
As Harte argues, restrictive abortion legislation will
always distort the genuine pro-life view; for pro-lifers, with the best of
intentions, end up being tarred by the brush of the anti-natalists e.g. David
Alton stated in Parliament that 18-week foetuses were “not blobs of jelly”; to
the ignorant this implies that before 18 weeks they are. The public at large
could be excused, therefore, for thinking that the pro-life movement found it
acceptable to abort babies under the 18-week limit, as well as those in the
‘hard case’ categories.
Colin Harte took time out from his university studies in
1987-8 in order to campaign in support of David Alton’s Bill for restrictive
abortion legislation. What brought about his change of mind, related with
courage and humility, was meeting Alison Davis, the then coordinator of SPUC’s
Handicap Division (now called No Less Human), who was born with spina bifida, a
detectable abortable condition. For her, the exclusion of the disabled from the
proposed legislation was completely unacceptable, as it was to other pro-life
disabled people. One disabled woman wrote to SPUC at the time, stating “We
could never proceed…until we have grieved over our grave omission.” Later statistics
spell out this “grave omission”: 20% of non-disabled foetuses are aborted,
compared to 90% of disabled foetuses. Restrictive abortion legislation
invariably sends the weakest to the wall.
The book’s subtitle holds the key to Harte’s thinking.
Quoting Matthew 25:45 – “Whatever you did to the least of these my brethren,
you did it to Me” – he makes an eloquent case for solidarity as Christ intends
it; when we exclude “the last and the least” from proposed abortion legislative
reform we thereby exclude Christ himself. Restrictive abortion legislation, he
emphasises, “always excludes from protection some unborn children equally
entitled to protection”. The rationale behind such legislation has, he
observes, a shocking resemblance to the question once posed by Caiaphas in a
kangaroo court in Jerusalem: “Is it not better that one man should die…?”
In an important
chapter on the nature of jurisprudence, phrases such as ‘imperfect law’,
‘compromise legislation’, ‘lesser evil’, are carefully examined and rejected.
Laws are either ‘just’ or ‘unjust’ and if a law fails to respect the right to
life of every individual it is intrinsically an unjust law. Harte quotes
Aquinas on law: “An ordinance of reason for the common good”. When dealing with
law, the “common good” differs from the limited good of individual action (such
as rescuing some but not all from a sinking ship) because it concerns “the good
of each and all within the state”. We would never endorse laws for the “common
good” that advocate killing ‘some’ Jews or ‘some’ black people; the very
suggestion is abhorrent. Yet seemingly in good conscience we tolerate the
killing of some unborn children – despite the fact that the protection of each
human life “is a fundamental requirement of any system of human law”. The
essence of law is its justness. According to Aquinas laws are unjust when
contrary to divine and human good. It is hard to argue that restrictive
abortion legislation does not fall into this category.
One of the book’s many strengths is its extensive quotations
from the thinking of John Paul II in his key pro-life encyclical, Evangelium
Vitae (1995). The Pope argues that a law tolerating abortion violates the
natural law; therefore it is not valid as law. Thus to support any measure that
makes a distinction between different categories of the unborn is to collude in
something that is fatally flawed. Even if the consequence might be that some
lives are saved it is an unchanging moral axiom that we cannot do evil that
good may come.
Harte argues persuasively that pro-life supporters often
misinterpret the relevant sentence in Evangelium Vitae: “An elected
official…could licitly support proposals aimed at limiting the harm done…by
such a law”. This does not mean, as people commonly think, supporting laws
limiting or restricting abortion; it refers to proposals such as not funding
abortions with public money or granting medical personnel the right not to
perform abortions. Such secondary legislation can licitly be supported by
pro-lifers because it is not intrinsically unjust i.e. it does not make a
distinction between categories of the unborn. It is this latter legal stance
which undermines that respect for the “right to life of every human being…even
if he is the last and least gifted” (John Paul II, speaking on the 5th
anniversary of Evangelium Vitae.) The former Cardinal Ratzinger is also cited:
“Can compromises be made when it is a matter of choosing good and evil?”
This review lacks the space to do more than highlight the
main arguments of such a vital contribution to pro-life literature. It should
be read by everyone who is sympathetic to the pro-life cause, Christian or
otherwise. In an area often fraught with high emotion, it should be added that
the book is not written in emotive language, or intended as an attack on the
pro-life movement in the UK which, the author emphasises, does much good work
in other ways to promote “the civilisation of love”. It is not polemical or
intended to convert. It is judicious, charitable, meticulously researched and
carefully argued, packed with erudite footnotes, references, appendices and an
extensive bibliography. Its author simply wants people to consider his
argument. Not to do so would be – to use his parlance - an injustice. I would
further comment that in the 36 years since David Steel’s 1967 Abortion Act,
despite extensive and prolonged pro-life efforts there has been no success
whatever in changing the law. Indeed, the 1990 Act made a situation already
dire significantly worse. Can it be that the pro-life movement has been
fighting the wrong campaign, losing sight of the moral law in its desire for
partial ‘success’? It takes courage and humility to change a position long
adhered to; but the author, whose preface was written on the feast of the
Annunciation, once unthinkingly accepted a viewpoint he now believes to be
deeply flawed.
Like Alison Davis cited above, I also have a personal stake
in this most critical debate: I have a daughter with Down’s Syndrome (as with
spina bifida, it is a detectable abortable condition) who was born in 1990, the
same year that an Act of
Parliament allowed babies like her to be aborted up to birth. For her
dear sake I too am pledged to solidarity with the ‘last and the least’. To paraphrase
the seventeenth century poet John Donne, surely the father of the solidarity
movement: “Any unborn child’s death diminishes me for I am involved in
mankind.” Christ, as Colin Harte points out, would not abandon one sheep for
the sake of the other ninety-nine. Neither should we.
Francis Phillips
According to the BLOG POST
For a limited period Changing Unjust Laws Justly can also be
obtained at the discounted rate of £39 from Alison Davis, 35 Stileham Bank,
Milborne, Blandford Forum, Dorset DT11 0LE. Email: alison.davis2@btinternet.com