On a collision course with technology

In the debate about the proposed constitutional entrenchment of the law against abortion, it is generally assumed that, even if the principle of entrenchment might be dubious, the anti-abortion strategy behind the principle is logical. I believe this assumption is deeply mistaken.

It would take another column to explain why I find nothing wrong in principle with entrenching the anti-abortion law in the Constitution. It is neither anti-democratic nor "fundamentalist". The real questions, in my view, have to do with whether this constitutional measure makes a difference to a public strategy to safeguard human life before birth. In one plausible scenario, the difference it makes could be negative.

It is difficult to see any practical positive difference that it might make in the medium-term future. It is highly improbable that the composition of the 2008-2013 Parliament will include a majority of MPs open to the case of overturning the anti-abortion laws.

It is a bit more probable that over this period there will be a more vocal minority in civil society insisting on some amendment to the anti-abortion law - say, to permit it in the case of rape or diagnosis of severe disability in the unborn child. But before the general election of 2008, no mainstream political party will even appear to give such a minority the time of day. Any public discussion that arises between 2008-2013 can be dealt with by Parliament during that legislature.

If there is anything likely to fuel public discussion during that period, it will be developments in biotechnology.

Right now, just when human life begins is not clear. The evidence is controversial. Since it is not clear, and given the high stakes involved, it is prudent to assume that human life begins at conception and to take the necessary protective legal measures. However, technological developments in our capacity to monitor life could clarify the issue in the medium-term future - with implications of the greatest significance for the difficult cases that the abortion controversy raises: rape and serious disability.

Should we come to have good reason to believe that human life begins after conception (say, no less than two weeks after), it would be morally licit for a rape victim to swallow a "morning-after pill" in case she has conceived. Nor is it far-fetched that with certain other technological developments, it might be possible to diagnose, at a very early stage, severe disability and to treat it. Since this would involve getting rid of a cell with the potential to develop, on its own, into a human being, such treatment would not be licit under our current prudent assumptions.

How is this relevant to the proposal to entrench the current abortion law into the Constitution? Broadly, if the proposal is adopted, the Constitution will be on a possible collision course with technological development.

If technological developments throw new light on when human life begins, suggesting strongly that it begins some time after conception, then we would find an ambiguity entrenched in the Constitution. The law forbids "abortion" without defining it. We could have a situation where reasonable people, all committed against abortion, find themselves disagreeing with each other as to what constitutes abortion.

The constitutional entrenchment would make it difficult to modify the law, even to define "abortion" in the most conservative manner. So the entrenchment, far from sending a clear message, would be institutionalising ambiguity.

A parallel with what happened to the neutrality and non-alignment provisions in the Constitution comes to mind. When the proposal was discussed in 1987, Eddie Fenech Adami argued that the proposed constitutional provision was on a collision course with history. Within a few years he was proved right and what we have been left with is an anachronistic form of words that ill-serves the Maltese state's commitment to peace.

Similarly, the proposed entrenchment ill-serves the commitment that all innocent human life, even human life in the womb, should be protected.

For technological developments might make it possible to deal morally with the cases of rape and serious disability without making any concessions on abortion. This is of the utmost importance, since in southern Europe (that is, a region that bears a strong cultural and political resemblance to Malta) abortion laws were often introduced by making allowances in cases of rape and serious disability. Such laws were introduced by popular consent. But once the principle of abortion was accepted in certain cases, it could then be extended.

Yet, the future might offer the possibility to deal with such cases, while keeping the popular consensus shored up against the principle of abortion. However, the proposed entrenchment makes such a strategy more difficult by considerably increasing the majority needed to modify the law in the light of technological development.

The entrenchment proposal was approved by a Cabinet made up of essentially decent men and women. They approved the proposal even though they could see the flak coming, some of it from their moderate Catholic base. They could predict that the government and their political party would be accused of being anti-democratic, diversionary and fundamentalist. From the point of view of partisan strategy, they could see it was not advisable. But they interpreted the issue as one of principle and they could not see how they could be against it.

Well, I have tried to show why they should be against it. The issue is not one of principle. It is one of public strategy because it makes no positive difference in practice, while possibly making things worse. Ministers, think again.

ranierfsadni@europe.com