Abortion ruling ‘not relevant’ to Malta
‘No suggestion of a right to abortion’
Malta’s strict anti-abortion laws will not be affected by the recent judgment of Europe’s supreme court relating to abortion in Ireland, according to a Maltese judge who sat on the case.
The European Court of Human Rights last week found that a sick woman’s human rights were breached when she sought an abortion in Ireland but was forced to go to the UK instead.
However, Judge Giovanni Bonello, one of the judges deciding on this case, told The Times the judgment had “no relevance at all” to Malta.
Although Ireland, like Malta, has strict anti-abortion laws, its Constitution allows abortion if the pregnancy puts the woman’s life in danger. It is this exception which the Strasbourg court had to evaluate because the woman claimed she was unable to obtain proper medical advice to terminate her pregnancy.
“The violation consisted in Ireland denying the woman a personal right guaranteed by the Constitution of her own country,” Judge Bonello said.
The case concerned a woman who underwent chemotherapy treatment for cancer. The cancer was in remission when she got pregnant. Before realising she was pregnant, the woman had undergone some tests contraindicated during pregnancy.
She feared the tests would have harmed the foetus and the cancer would reappear if she carried the baby to term.
According to Judge Bonello, the Irish state had not put in place any legal and practical structures through which a woman could actually make use of a legally recognised right to abortion if her life was in danger.
On the contrary, in Malta, he added, the law criminalised all forms of abortion, even those intending to terminate a pregnancy that threatened the life of the mother.
“The Strasbourg court did not have to face this issue and said absolutely nothing about it. Nothing has changed in so far as Malta is concerned,” Judge Bonello said.
Human rights lawyer Therese Comodini Cachia believes the difference in legislation between Malta and Ireland will make it very difficult for either the pro-life movement or those who favour abortion to use this judgment for their cause.
This has not stopped pro-life lobby group Gift of Life renewing its call for the Constitution to be changed to ensure the right to life is protected “from conception” so as to make it very difficult for abortion to ever be made legal at some point in the future.
As expected, the Strasbourg court’s judgment on such a sensitive issue created a media sensation. However, Judge Bonello lamented what he described as a “radical misinterpretation and distortion” of the judgment.
“Nowhere does the judgment suggest that there is a right to abortion, much less that abortion is a fundamental human right,” he said.
The judgment concerned three women, two of whom desired to have an abortion in Ireland for reasons of “well-being” but could not have it performed in the country. The third concerned the sick woman.
Irish law does not allow abortions for reasons of “well-being” and the court dismissed the request of the first two applicants.
Judge Bonello said the court decided the issue of abortion was one which involved “grave moral, ethical and religious considerations” and as a result an international court should not interfere with domestic regulation.
However, Dr Comodini Cachia said the European court’s decision on abortion cases involving women who had to terminate their pregnancy for health reasons did raise pertinent questions about the fate of Maltese women who may find themselves in similar circumstances.
“The message seems to be that even if there is a risk to her life the woman will not be given any assistance or even advice related to termination of pregnancy. Essentially her life is at risk and that is it,” Dr Comodini Cachia said, dreading the prospect of being a doctor who is faced with a situation of having his hands tied by the draconian law.
“While the State is provided with a lot of discretion as to issues of morality and values, yet one may wonder whether that same State would be fulfilling its obligations in respecting the life of the woman and the family life of her partner and other children where there is clear evidence that a pregnancy would jeopardise her life and health,” Dr Comodini Cachia said.
This conundrum has not been resolved by the European court and yet even if a case ever makes it to Strasbourg the outcome is anything but a straightforward decision.
Criminalising women, doctors
In Malta, abortion is a criminal act that punishes the woman and the doctor. There are no legal provisions that permit abortion if the woman’s life is in danger.
The criminal code states that anyone found guilty of inducing a miscarriage or consenting to an abortion faces a prison sentence of between 18 months and three years.
Doctors who perform an abortion or prescribe medicines to cause an abortion face a prison term of between 18 months and four years and perpetual interdiction from the profession.