Even with abortion, the future is not what it used to be

The people who endorse the proposed constitutional amendment say that unless immediate steps are taken what happened in other countries from the late 1960s to the early 1980s will happen here: an anti-abortion law will be overturned by a simple majority. The problem with this scenario is that it takes the political risk now to be the same political risk that was present over 20 years ago. But it is not. With the advance of science and technology, the politics of abortion have changed.

It would not be the first time they have changed because of such technological advances. It was partly the state of science that saw the rise of a certain strict anti-abortion view in the mid-19th century - a view that decisively rejected an earlier mediaeval view that placed the onset of individual human life in mid-pregnancy, at the point of "quickening". In the early 21st century the situation has changed again, with science and technology pulling in two different directions at once.

On the one hand, the sophistication of antenatal care enables us to monitor the life of the foetus closely. Some studies suggest that at a certain stage it can smile. The viability of the foetus outside the womb is being pushed back to earlier stages of pregnancy. Such developments are enough to make reasonable people, even those who are "pro-choice", doubt the morality of late-term abortions. In the US, for example, it is not just the rise of George W. Bush and his fundamentalist friends that is raising the pressure for laws that protect human life in the womb at some stage. Science and technology are also changing the context - making the US Supreme Court's 1973 majority ruling on abortion seem increasingly outdated (Justice Harry Blackmun, the writer of that opinion, did not hide that he was guided by the science of the time).

On the other hand, abortion in the earliest stages is becoming easier technologically. Socially, there is a pressure for it, too: higher rates of teenage sexual activity, less safe cities, more precarious economic circumstances, more expensive childcare and education and earlier and more accurate diagnosis of severe disability in the unborn. Such factors go hand in hand with traditional values that also stimulate the push for abortion: the stigma of rape and disability and the code that places the responsibility for children mainly on the mother's shoulders.

However, even in this setting, the rapid radical advances in knowledge make a considerable difference to abortion politics. Before we get a groundswell for the anti-abortion law to be overturned we are more likely to see technological advances that prompt us to reconsider our views about when individual human life begins. It need not happen but the possibility is not remote. There is a good chance that such advances might bring us to see that certain interventions within the first 24 hours of pregnancy are not abortive even though that is what we now consider them to be.

The social consequences of such a development would be very significant. If a morning-after pill were allowed it would considerably weaken the case for the principle of abortion to be allowed in certain difficult cases.

So, in a few years, we could find ourselves in a situation where many reasonable people, committed against abortion, will believe that a pregnant woman could, in some cases, terminate her pregnancy without committing an abortion (that is, without killing an individual human being). Yet, if the proposed constitutional amendment passes, we might have a Constitution that is ambiguous on this point.

The Maltese text would forbid a "pregnant woman" from having an "abortion". So some people would focus on the word "abortion" and say that technology now shows that certain interventions are lawful; but it surely is predictable that others would focus on the word "pregnant" and say no sort of human life, even if it is not yet individual, can be deliberately terminated. And it is unlikely that either side will be able to clarify the meaning of the Constitution by re-wording it, because it will be so difficult for either to muster a two-thirds majority.

The Deputy Prime Minister has an answer to the issue of ambiguity. In his opinion piece in this newspaper yesterday, Tonio Borg effectively acknowledged that some ambiguity might arise (although it is not quite the same ambiguity I have identified): "It will be up to the courts to decide when a pregnancy starts".

So the resolution of ambiguity will be kicked from Parliament to the courts. This means two things. First, a matter calling for political (as distinct from legal) competence - the recognition of rights of the unborn - will be given to authorities that do not have that competence. Second, we are faced with a scenario in which different judges might give different rulings.

Against this kind of scenario, the consequence will be that, in the battle for hearts and minds, the case against abortion will be weakened. Because of the social factors I outlined earlier the pressure to allow the termination of pregnancy in cases of rape and serious disability will grow - but in a manner that allows the principle of abortion to be, first, accepted and, then, extended to other cases. The abortions might not happen in Malta but more Maltese will endorse the principle.

The pro-entrenchment activists will probably see such a development as confirmation of what they predicted and fought against. In fact, they would have helped bring it about.

ranierfsadni@europe.com