Francis Phillips reviews Changing Unjust Laws Justly
by Colin Harte

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Changing Unjust Laws Justly: Pro-Life Solidarity with ‘The Last and Least’, by Colin Harte, (Catholic University of America Press, June 2005)

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.

© 2005 Francis Phillips

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