Malta Abortion Bill suspended?

Malta is the only EU member State which does not allow abortion. When a pregnancy causes a serious and actual risk to the life of the mother, the Maltese courts allow the termination of pregnancy as an indirect effect of trying to save the life of the mother.

By Tonio Borg

Malta is the only EU member State which does not allow abortion. Abortion is still included as a criminal offence in the Maltese Criminal Code. When a pregnancy causes a serious and actual risk to the life of the mother, the Maltese courts have allowed the termination of pregnancy as an indirect effect of trying to save the life of the mother.

Last year an incident arose whereby an American couple by the name of Prudente was not allowed by Maltese medical practitioners at the State hospital to abort their unborn child when certain health complications developed.  The couple flew to Spain where an abortion was performed. In litigation in Court instituted later by the Prudentes, it transpired that Mrs.  Prudente was never in danger of losing her life. As a result of this incident the Maltese Labour left-wing Government vowed to “clarify” the legal position by expressly legislating on such matter rather than leaving the matter in the hands of the Courts. However, when the Bill was published, it transpired that it was being proposed that a termination of pregnancy would be allowed not only when the life of the mother was at risk, but also where her health was prejudiced as result of the pregnancy. This meant that mental health for instance could be used as a pretext to terminate a pregnancy.

The pro-life lobby united to oppose the Bill. A massive protest was held in the streets of Valletta on 4th December 2022. Around 20,000 people, including Malta’s  Catholic Bishops,  attended the event, It was addressed by a number of pro- life female activists  from Life Network, a federation  of pro- life NGO’s. It was also addressed by former  Socialist President of Malta  Marie Louise  Coleiro who stated that the Bill if passed would introduce  abortion in Malta for the first   time, something which went against  her socialist belief of caring for the most vulnerable  in  society.

Opposition to the Bill came from all quarters;  from the Nationalist (Christian Democratic) party in Opposition  a member of the European  People’s Party, but also from the President of the Republic of Malta, George  Vella, a medical doctor by profession and a former Deputy leader of the Labour Party now in Government. He called for amendments to the Bill to prevent a situation where abortion would be stealthily introduced. Eighty University academics signed a position paper whereby they stated that while they had no objection to the law expressly recognising the duty to save a mother’s life even if that meant indirectly causing a termination of a pregnancy, they were against such termination occurring on the basis of vague reference to the  “health” of the mother. Most abortions in Europe, in fact take place on the basis of issues relating to mental health caused by a pregnancy.

In spite of this opposition which was also  supported by the Catholic Church leadership in Malta , the Bill was passed through the so-called second reading in Parliament. The second reading is a stage where the principles and scope  of the Bill are debated. All government MPs voted in favour. All opposition MP’s voted against. The next stage is the Committee stage where the proposed clauses  of the Bills are examined in detail  and where amendments can be proposed either by Government or by the Opposition.

In spite of the Government’ s stand that the Bill needed to  be passed urgently   and that Government  would continue with the debate once the Christmas  recess was over, the Bill has been stalled . No debate has taken place since the beginning of the year. The Government is conveniently arguing that it is consulting NGO’s though it is not clear  who is being  consulted because  the  main pro-life lobby itself  has not been consulted at all!

It would appear that in face of stiff opposition and an indication in opinion polls that the majority of Maltese are against abortion except to save the life of the mother when this in real danger, Government has taken a step backwards. It has not withdrawn the Bill; but its former pronouncements in favour of the Bill and that the wording of the Bill does not introduce abortion are not being heard any more. A poll issued on 25 March 2023 indicated that 58% of people would not vote for a political party that proposed abortion. Only 29% agreed with government’s proposal. 55% disagreed. This could have led the Government to shelve the proposal for the time being. However, the Bill still is on the parliamentary agenda, but its debate has been postponed,  perhaps indefinitely.

Another option would be for Government to introduce amendments in the Committee stage whereby “health” would be excluded as a reason for termination of a pregnancy, and limit the termination of pregnancy only when the mother’s  life is at risk. This would effectively change nothing since the Maltese legal position through case law already covers this eventuality. In fact since the Maltese Criminal Code was enacted in mid -19th century, no mother or member  of the medical profession has ever been arraigned in court for indirectly terminating  a pregnancy as a result of trying to save the mother’s  life.

The last possible option would be for the Government to stubbornly go ahead with the Bill. This is unlikely. The President of Malta  who is also head of state    and can only be removed by a resolution supported by two-thirds of all the members of the Legislature,  has already publicly stated that he would not sign a Bill allowing abortion and has appealed for common sense to prevail. This   option is therefore unlikely to succeed as it could lead to a constitutional crisis with the Head of State blocking legislation. It is true that the Maltese Constitution, based on English Common law provides  that the President is bound  to sign a Bill approved by Parliament without undue delay, but it is doubtful  whether this constitutional norm can be enforced  in a court of law  if the President refuses to sign a Bil.  Having been imported from British traditions and conventions , this norm is probably  only a convention and not law.

The way this incident and episode has evolved in Malta goes to show that where enough pressure is exerted and where the pro- life lobby is united, results ensue. The battle is not yet over and the Bill may re-emerge in the future, but unity,  energy and synergy between all pro-life forces in Malta, have till now stopped Government in its tracks;  the Bill has not yet been approved, and there is a high possibility  that it will never be.

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