Whether you were sipping coffee after your favourite coffee shop opened again and scrolling through your feed, or at your desk checking the news, the news of a legislative proposal calling for the decriminalisation of abortion in Malta was most definitely something no one would have expected on a Wednesday afternoon.
The Bill, tabled in the House by Hon. Marlene Farrugia, an independent Member of Parliament, naturally sparked a barrage of reactions, ranging from sanctification to demonisation of the Honourable Member, depending on where commenters stood on the abortion issue.
As feminists, activists, as well as being a lawyer and an aspiring lawyer, we obviously have our own stance on where the country should be headed on this issue. However, the past week has been flooded with opinions, and we believe the Bill that has shocked the nation merits a more detailed legal analysis instead. That is where we will focus our attention in this piece.
Decriminalisation vs. Legalisation: Two peas in the same pod?
A common misconception which seems to be prevalent in the discussion on the proposed bill is that it is essentially legalising abortion. This is incorrect, and the two concepts are entirely different in their application and effect.
Decriminalising an action does not make it legal: it simply states that no criminal sanction (such as a penalty or imprisonment) can be applied. Likewise, any person caught committing the act is not arrested or prosecuted, given, of course, that no consequence is attributed to that action.
Legalisation, on the other hand, not only allows an action, but also regulates how that action can be taken. In the case of abortion, for instance, legalisation would regulate which methods of abortion are permissible, at what stages of the pregnancy, and for which reasons or circumstances.
Therefore, the Bill proposed, as a proposal for decriminalisation, will by no means lead to the opening of abortion clinics in every town and village. Rather, decriminalisation stops short of legalisation by only ensuring that women choosing to terminate their pregnancy, as well as the professionals assisting them, are no longer liable to punishment or considered as criminals, therefore this will not lead to a tainted police conduct.
The Proposed Bill: A Dissection
Honourable Farrugia’s Private Members Bill seeks to amend the provisions pertaining to abortion in the Criminal Code, Chapter 9 of the Laws of Malta. The succinct Bill proposes 5 amendments, which we’ll analyse individually here.
The deletion of Article 241
This provision is the main bone of contention for pro-choice activists, as it criminalises any person who, through any means, seeks to terminate a pregnancy – including the consenting pregnant woman herself. A hefty punishment ranging from eighteen months to a maximum term of three years imprisonment is tied to this act for all parties.
The deletion of this much maligned article is therefore what would effectively decriminalise abortion.
The deletion of Article 242
This article states that where the means used to terminate a pregnancy lead to the death or serious injury of the pregnant woman, the offender, in so causing a miscarriage, is liable to the same punishment applicable to wilful homicide or wilful bodily harm, diminished by one to two degrees.
Consider the context of when this law was written: in the 1800s, back alley abortions were obviously being done, and health and safety was hardly on top of anyone’s agenda. This clause, therefore, sought to protect women from clumsy practitioners and downright harmful procedures.
Today’s scenario couldn’t be any more different: while illegal abortions are obviously still part of women’s life in Malta, with approximately one abortion taking place every day, the means of procuring an abortion, especially in the first trimester, are much safer than they were in the 1800s.
This does not mean, however, that women are free from harm, as they face this procedure alone and unprotected from the law.
Hon. Farrugia’s Bill proposes substituting this clause with a new clause on forced abortion (which is discussed in detail below). While forced abortion is of course abhorrent and needs to remain a criminal act, it is not exactly the same as causing death or injury through abortion.
This, in our view, also reveals the problem with decriminalisation, as opposed to legalisation. A regulated framework would, for instance, still criminalise forced and back alley abortions, but in tandem, would also impose heavy standards by which medical professionals would have to abide by when terminating pregnancies. Removing this clause in this manner, of course, falls short of this crucial element.
The deletion of Article 243
This article criminalises all medical professionals who in any way provide the means or assist women in the termination of their pregnancy, making them liable to up to 4 years imprisonment, as well as the interdiction of practicing their profession.
This deletion, together with the removal of article 241, is necessary to lift the chilling effect currently preventing most practitioners from assisting women in need.
The deletion of Article 243A
This article criminalises negligence – the notion of culpa at law – which leads to abortion. The removal of this article is puzzling to say the least, given that even pro-choice advocates argue for ensuring that negligence leading to the unintended loss of a pregnancy is subject to sanctions.
The danger of this proposed amendment lies in its rationale, given at the very end of the Bill: “Article 243A is covered by existing Article 225 and Article 226 of the Criminal Code”. This raises a huge red flag.
The articles the Bill claims to already cover culpable miscarriage relate to involuntary homicide and involuntary bodily harm. One crucial element distinguishes these articles from the article which is being deleted by this Bill: while the former relate to harm committed to humans – born, living, humans – the latter relates to harm committed to a foetus or embryo. Some might argue that they are one and the same, and yet, even a law written in 1856 differentiates between the two.
The effect of this one simple rationale could potentially be disastrous for women’s rights in Malta. If a foetus or embryo and a living person are to be deemed one and the same, where should we draw the line at the rights the former enjoy?
The substitution of Article 242 with a new clause on forced abortion
A new clause prohibiting forced abortion is being proposed, however, it is numbered as article 251G, an article currently criminalising forced marriages. Is the Bill proposing the removal of this important clause? We hope this is an oversight from the drafter’s end.
The criminalisation of forced abortions is of course welcomed and necessary. However, the wording of this clause requires some polishing. For instance, forced abortions, as proposed, are limited to ‘non-medical reasons’. Would that allow a legal loophole for forced abortions to occur with the excuse that they were medically necessary? We argue that forced abortions should be criminalised, irrespective of the context. This article however includes ‘informed consent’ which, while it needs to be defined further, is imperative in determining negligence.
Appraisals and Room for Improvement
Brushing up a centuries old law is commendable in itself. However, as is the case with any proposal that seeks to serve as a first legislative step, it merits appraisals as well as constructive critique.
The Bill is a breath of fresh air, and its intentions are applauded. It is clear that whatever the reason women might require for an abortion, they should not live in fear of prosecution, to the point of avoiding seeking medical assistance when complications arise. This Bill lifts that fear, and would undoubtedly assist women – as the law should, after all, do.
However, it requires heavy amending, and leaves some aspects unaddressed. For instance, the English version of the law currently uses the term ‘miscarriage’ rather than abortion or termination of pregnancy, without defining it. On the other hand, the Maltese version of the law (Criminal Code, Chapter 9 of the Laws of Malta) makes reference to ‘abort’ in the aforementioned provisions.
Why are definitions important? Definitions give legal bounds and certainty as to who the law is referring to, who it aims to protect, and what it criminalises. Their absence, even in the Bill, could lead to lengthy proceedings, and even lengthier court decisions.
The Bill alone, even if it is successfully implemented, is not enough. Decriminalisation is a positive and imperative step, however, it leaves many questions unanswered. Will, for instance, assistance to terminate pregnancies be available? Will there be different sanctions relating to the specific gestational periods in one’s pregnancy? Where would pregnant women go to obtain an abortion? Who can pregnant persons considering an abortion talk to?
Over and above legal reform, we argue that the following are equally crucial:
An overhaul of our National Sexual Health Strategy, ensuring it is no longer oblivious to the reality that people have a healthy sex life, and that abortive procedures exist, and as a result, an appropriate unbiased approach needs to be taken. At present, the National Sexual Health Policy has not been amended since 2010 and is in dire need of review, reflection and amending.
National Post-Abortion Counselling or adequate family planning services should also be considered to help women in an environment that is stigma free and any such staff employed in these services should be provided adequate training to ensure that the delivery for necessary care is satisfied for any such person making use of these services. Part and parcel with this, comes the need to speak in an environment in which the patient feels comfortable and free from stigma.
As feminists, we cannot but applaud Hon. Farrugia’s bold move towards the decriminalisation of abortion in Malta. As lawyers, both qualified and aspiring, it has to be said that the Bill leaves much to be desired. Should the Bill go through Committee Stage, several important amendments and consultation must be made for it to truly reflect its own spirit, and reach its intended goals. Should it not make it through, we hope the next legislative attempt at reform is more cohesive. It is clear however, that just like abortions themselves, abortion reform is now here to stay.