Abortion law: as clear as mud | Gilbert Gravino

I have followed the correspondence on the Times of Malta (dating back to November 2021) tackling the implications of Maltese law on abortion, with contributions from Judge Giovanni Bonello, Dr Alfred Sant, Prof Isabel Stabile and Dr Chris Barbara.

Bonello is an authority on human rights law, and I would not even contemplate the idea of having a better or near understanding of the law. I will however question some of his claims on abortion as I am eager to learn more about its legal perspective.

I am a medical doctor by profession and in my experience with Doctors for Choice – which also operates the Family Planning Advisory Service - I have become well-grounded on this subject. Bonello’s contributions have certainly been thought provoking. To me it seems promising that finally a man of his stature, and other influential political figures like Alfred Sant, are publicly engaging in a discussion on the subject.

Bonello’s main argument is that Article 241 of the criminal code (criminalises all procedures to secure any abortion) should not be applied in total isolation, and when applied in the context of Article 223 (exempts causing “bodily harm” or “homicide” from being considered a criminal offence when “imposed by actual necessity either in lawful self-defence or in the lawful defence of another person”) it keeps “therapeutic abortion” outside the purview of the former article.

He also emphasises that each provision of the criminal code must be applied in light of the universal principles governing criminal law, such as the principle of double-effect. That one must look at the entirety of a law to correctly understand what the meaning and application of its provisions should be is indisputable.

However, I have several concerns with the rest of his argument:

The first has already been addressed by Sant who argued that (1) Article 241 does not mention bodily harm or homicide, (2) it is not clear how self-defence comes into a situation of therapeutic abortion, and (3) there is no definition of self-defence in the criminal code itself. To this Bonello replied: “That Sant or others disagree and find weakness in the ‘self-defence’ reasoning is entirely acceptable”. Does this lack of clarification imply that this side of his argument holds no water?

My other concern is the certainty with which Bonello dichotomises “criminal abortion” and “therapeutic abortion”. To my knowledge, therapeutic abortion is another term which is not defined in the criminal code. In medical terms, this implies a medical indication to terminate due to a threat to the woman’s health posed by the pregnancy or the risk of incurable malady in the foetus. In the view of many medical doctors and leading international medical authorities it is therapeutic to perform an abortion in those who wish to have an abortion on the grounds of (1) mental health problems or suicidal thoughts, (2) preterm premature rupture of membranes of a non-viable foetus with signs and symptoms of infection even if the woman is not yet severely septic, and (3) fatal foetal anomalies.

The first two scenarios both concern a woman who risks losing her life, albeit not imminently, or suffer grievous harm. These practical and not that uncommon scenarios are just some examples where medical doctors in Malta would not terminate the pregnancy on the woman’s request despite the therapeutic nature of such procedures. If we were to apply this definition and regard “therapeutic abortion” permissible by law as claimed by Bonello, it would mean that doctors in Malta could perform such abortions without repercussions. No doctor practising in Malta (openly) performs such abortions because the law is not clear, and they risk prison and losing their license. I suspect this to be the main reason why these waters have not yet been tested in court.

In the context of abortion for extreme cases (when a woman’s death is imminent), Bonello refers to the principle of double-effect. This principle originated in Catholic philosophy. It is applied in the context of Maltese law which considers Catholic teaching as the normative value but is not explicitly incorporated in the law. As Bonello states, the principle would allow abortion if harm to the foetus is foreseen but “indirect” and “unintended”.

Once again, the criminal code does not make it clear what is to be understood by these terms, and which interventions are deemed direct or indirect. This makes the applications of this principle in medical practice unclear and unsafe. This is confounded by medical professionals lacking formal guidance on how to apply this principle in practice – an issue previously raised by Bioethics Professor Pierre Mallia. When it comes to intent, can we therefore also apply this to a pregnant woman who is suicidal or has intra-uterine infection, implying that termination of such a pregnancy is currently allowed by law (since the intention is to save the woman)?

The lack of a clear definition of therapeutic abortion in the law allows for an even broader interpretation, in that any abortion performed with the consent of the woman involved may be regarded as therapeutic since it has a positive impact on her wellbeing. This is evidenced by robust studies, adopted by internationally leading medical bodies to sustain their stance that abortion access is essential.

If the current law is deemed clear, then this can only be in that it explicitly prohibits all forms of abortion without exception. The suggestion that a “therapeutic” form is somehow clearly exempt remains as clear as mud, since no convincing argument proposed effectively mitigates Article 241. Bonello wrote that the justification which legitimates therapeutic termination of pregnancies “has always been certain for everyone else [other than Stabile and Barbara] who has had to deal with abortion and its control.” This is not true for many who do deal with abortion, including the women going through a difficult pregnancy, healthcare professionals working in Malta, and members of Bonello’s own profession.

Stabile and Barbara are not the only ones bearing uncertainties on Maltese abortion law. In fact, I wonder whether Bonello himself is certain about his stance. On TVM programme ‘L-Erbgħa fost il- Ġimgħa’ he made a very clear statement which goes against the conviction in his letters: “Maltese law on abortion…completely prohibits any form of abortion. Even in case of danger…of death or grievous bodily harm to the woman…it is still prohibited.”

This contradiction does not reflect well on his claim that no one in the last 500 years has ever been uncertain on Malta’s abortion law.

Gilbert Gravino is a medical doctor and member of Doctors for Choice