This is how Bill 28 may be watered down
Updated: Dec 18, 2022
Parliament is currently debating Bill 28 of the Fourteenth Legislature, which would introduce a new clause in the Criminal Code that adds an exception to Malta's total ban on abortion. The new clause, as it currently stands, states:
243B. No offence under article 241(2) or article 243 shall be committed when the termination of a pregnancy results from a medical intervention aimed at protecting the health of a pregnant woman suffering from a medical complication which may put her life at risk or her health in grave jeopardy."
Since Bill 28 was announced, the government has come under significant pressure from anti-choice organisations, the Church, and opposition parties to water down the bill and reduce the protections it offers to pregnant women in our country. The most contested part of the Bill is the protection it gives to pregnant women when their "health is in grave jeopardy." Here we explore some of the ways the government may water down the bill to appease some sections of the anti-choice population, and explain why watering down the bill will put women at risk.
Removing the phrase "her health in grave jeopardy" or rewording it so that it increases the level of risk women have to face before a termination of pregnancy is allowed
Since this phrase is the most contentious part of the bill, the government may opt to rephrase it or remove it entirely. This will inevitably increase the risk to women with complications in pregnancy, and will most likely lead to a repeat of cases like that of Andrea Prudente and Marion Mifsud Mora.
One needs to remember that is criminal law. As soon as someone, in this case a doctor and the pregnant woman, fall foul of this legislation they face prison terms and the doctor also faces a revocation of their licence. This means that this law will be interpreted cautiously by doctors and no doctor will act unless they are certain the criteria set out in the law are met.
If this law is made stricter than is currently proposed, this will mean doctors will wait for women to develop more risk and complications before taking action. This will also mean pregnant women in our country will face a higher risk of losing their lives. Instead of focussing on whether the law could be "abused" if the wording is kept as it is, the focus should shift onto how women would be negatively affected if the wording is made any stricter. "Grave risk to health" is already a very high level of risk, and increasing the level of risk further will have disastrous consequences.
Requiring more than one doctor to approve the termination of pregnancy
The government could opt to require more than one doctor to approve the termination of pregnancy. This would be an unnecessary burden on doctors that would increase the risk to pregnant women facing complications.
When a pregnancy is going wrong, it is often a race against time. As the case of Savita Halappanavar in Ireland showed, once infection sets in and the point of no return is crossed, the woman will die. Once a doctor has made the decision that a dangerous pregnancy needs to be terminated, this needs to happen as soon as possible. Adding the legal burden to find another doctor to rubberstamp the decision only introduces delays and increases the risk to women. It does not make sense to require doctors who are Consultants or have completed their training to consult with colleagues when their decision has been made. The doctor best placed to make a decision in such cases is that doctor providing direct clinical care to the patient.
Requiring additional doctors is also likely to increase the burden of proof required, and will lead to women having to face more risk before a decision to approve the termination of pregnancy is made. This is likely to lead to more cases like that of Andrea's and Marion's, and potentially also loss of life.
The government may opt for even less flexibility and require the approval of a fixed board of specialists. Apart from the shortcomings mentioned already, this would have disastrous consequences for those women who require urgent care out of hours or whenever any board member is not available. It also gives the anti-choice the opportunity to appoint their chosen people to such boards which would likely result in women being denied terminations that are legal. A more in-depth analysis on this topic can be found in this article: Conference of Doom: How red tape can cost a woman her life.
Setting a gestational limit in the law
This is a law that protects women's lives and saves their health from grave risk. This is not a law that regulates on demand abortions. The terminations that this law allows are all necessary and there should not be a gestational limit beyond which this law does not apply. It is immoral to let a woman die simply because she has passed a certain number of weeks in her pregnancy.
There have been suggestions that the law may include a cut-off of "viability" or 24 weeks, which is the point in pregnancy when the fetus is usually considered viable. The thinking behind these suggestions is that doctors should aim to deliver a viable fetus and not terminate it.
One needs to remember that this law only allows terminations when a woman's life or health are at risk, not when the fetus is abnormal. These would be wanted pregnancies, because women with unwated pregnancies would have terminated the pregnancy illegally by using pills at home early in their pregnancy.
It is standard clinical practice that in situations where the pregnancy is wanted and the woman is facing a risk, an attempt is made to deliver the fetus if it is viable. This clinical practice does not need to be codified in law because doing so will introduce more uncertainty and confusion. For example, if a pregnant woman experiences a life-threatening complication at just over 24 weeks gestation and her doctor delivers the pregnancy but the fetus sadly dies due to prematurity, the doctor may not be protected by the new law if it only applies up to 24 weeks of pregnancy.
Calling a referendum
The government may bow to pressure and ask the electorate's approval for this law in a referendum. This would infinge the rights of women in our country. This is a law that protects the lives and health of women, and the right to life is a fundamental human right. An important principle of democracy is that human rights are not subject to mob rule.
The Prime Minister himself stated in Parliament that the law as it stands infringes the right to life of women in our country as protected by the Maltese constitution and the European Convention on Human Rights. When one identifies such a serious shortcoming in ordinary law, it must be rectified as soon as possible, and one does not need a mandate or parliamentary approval to do so.