A modern law for a contemporary issue

From a local perspective, it would perhaps be unwise to read too much into the results of the Irish referendum last weekend: in which almost 70% voted to repeal a Constitutional ban on abortion.

To begin with, the situation in Ireland may superficially resemble that of Malta; but there are a number of significant differences. The legal landscape is one such difference: Ireland’s abortion legislation was – and, technically, still is, until the result of the referendum is enacted – underpinned by a Constitutional amendment introduced in 1983, which prohibited abortion in all cases, except where there was a risk to the mother’s life.

This differs from Malta’s landscape on two counts. Unlike Ireland, Malta’s abortion legislation makes no specific allowances in any case whatsoever. Instead, we rely on the application of the so-called ‘Thomist’ principle: whereby the act of terminating a pregnancy, in such cases, is viewed as the undesired consequence of the primary objective, which was to save a woman’s life.

This may well absolve local consciences – and, in practice, it seems to raise no objections, even among the most vociferous anti-abortion campaigners... but as this newspaper recently reported, medical practitioners are themselves uncomfortable with the lack of a proper legal framework regulating this thorny grey area.

Nor can it escape attention that, following the Irish referendum, Malta is the only EU member state to apply a total abortion ban in all cases. Nils Muiznieks, commissioner for human rights at the Council of Europe, had already called attention to this anomaly last January: when he pointed out that Malta’s policy on abortion made it ‘stick out’ among other European countries.

It is not so much the pro-life stance that makes us unusual – other EU countries such as Poland and Austria have similar approaches. It is the extremism of a total blanket ban; and also the seeming reluctance to even debate the issue, which prompted Muiznieks to add: “I think it’s disturbing, that in a developed democracy, you cannot have a democratic debate on a policy that affects the human rights of so many women.... especially when your policy really sticks out, in the broader context.”

The secnd difference is that – unlike Ireland, where a referendum was the only legal means to overturn the ban – there is, de facto, no legal impediment to a government enacting a mandate to alter or amend Malta’s abortion legislation in any way. Despite recent political efforts to entrench a similar Constitutional ban, only a simple majority is required to make amendments to this law. And as this newspaper has variously argued, a reform is urgently needed.

Regrettably, the only aspect ever really discussed concerns the question of whether or not to legalise abortion in Malta. But without even entering the merits of that question, one could easily argue that the law needs to be upgraded in other areas: especially, so that the ongoing practice of ‘aborting to save a mother’s life’ is enshrined into the law (regardless whether any other aspect of the legislation is amended). A country should not have to rely on the chosen work practices of its medical profession in such matters; and doctors should not have to experience the dilemma caused by lack of proper regulation.

Indirectly, the lack of a Constitutional barrier also means that Malta’s insistence on a total abortion ban is a reflection of popular will: a view that is strongly enforced by all polls and surveys. This, naturally, constitutes another significant difference from Ireland, where the issue was decided by a landslide majority.

From this perspective, there are implications for those who welcomed the Irish referendum result, as earnestly as others who were dismayed by it. It would be misplaced to assume that the winds of change blowing through Ireland signify any immediate (or future) change to the local status quo. Our own surveys suggest an insurmountable majority opposed to legalised abortion in this country, and this is unlikely to change.

In fact, the Women’s Rights Federation stopped short of demanding ‘abortion on demand’ in their recent proposals for a legislative amendment. Instead, the NGO limited its proposals to ‘safe access to abortion’ in four cases: threat to the mother’s life; rape; incest; and in cases where the foetus suffers a terminal condition.

There may be resistance to some aspects of that proposal; but clearly not to all. Another consideration that arises from these proposals is that our blanket ban translates into serious health risks for the women concerned. Anyone with money and connections can easily circumvent Malta’s abortion laws. It is only those in poverty, or with social problems, that are forced underground. And while the numbers are too small to ever reach critical mass – as they did in Ireland – the dangers such women are exposed to are still very real. It makes no sense to doggedly insist on ignoring this issue, even if (unlike Ireland) it only affects a tiny – yet vulnerable – minority.

Ultimately, there is still room for a healthy debate on abortion: but it needs to centre less on dogmatic terms... and more on the fact that 21st century issues need to be addressed by 21st century laws.