Philosopher Baruch Spinoza once wrote that: 'Those who govern the state or hold the reins of power always strive to cloak with a show of legality whatever wrong they commit, persuading the people that this action was right and proper; and this they can easily achieve when the interpretation of the law is entirely in their hands. For this undoubtedly affords them the greatest latitude in doing whatever they want and whatever their appetite suggests, whereas they are largely deprived of this freedom if the right to interpret the laws is vested in somebody else, and likewise if the true interpretation of the laws is so obvious that it is not open to doubt'. How correct he was.

When Spinoza wrote this passage he did not have the Maltese government in mind. But it is apt for our situation. When government proposed the Bill to amend the Criminal Code to decriminalize abortion, the Prime Minister kept on stating that this would not be the case. He (wrongly) continued to deny that government's bill to amend the Criminal Code would allow abortion in Malta. However, he has now contradicted himself and confirmed that he was interpreting the bill wrongly. That he was incorrect is confirmed by the amendments that government will be proposing to the half-baked abortion bill that was totally an exercise in bad drafting.

Now that the government wants to enact the decriminalization of abortion bill before the House of Representatives' summer recess, it is building up pressure in favour of its abortion decriminalisation bill, amongst others, through its own appointed National Commission for the Promotion of Equality. The latter, instead of treating the pregnant mother and the unborn child as equal persons, has decided to discriminate between the two, not in favour of the most vulnerable, innocent, and unprotected, but in favour of the pregnant mother's health that logically needs lesser protection than the former, more so that mental health can be treated whilst termination of life cannot. This act of insane discrimination - that violates the right to life of an innocent person - unjustifiably tilts the inequality balance in favour of the mother even in those cases where the mother's health does not pose a risk to her life. The same Commission, which is supposed to be the champion of human rights and equality protection, through its public pronouncement favouring discrimination against the most vulnerable persons in society, has no qualm with supporting the perpetration of an infamous and huge injustice. Justice is all about equality and non-discrimination but not for the Equality Commission. Yet the latter refuses to understand what equality is really all about by favouring injustice, disproportionality, discriminatory treatment and denial of the most fundamental of human rights. In this respect, it mimics the government instead of acting as a proper equality commission.

What also worries me about the government's bill, and the changes it will propose thereto, is the element of deceit: we are being government-fed not with the truth or half-truths but with absurd falsities. Government wants to pass its bill and amendments thereto as though they are not introducing abortion by stealth when, a reading of the bill clearly indicates so; the same applies to the amendments thereto once government had declared that it will stick to the decriminalization of abortion for health reasons. Government needs to be honest with us, the people, and speak the whole truth. At least the Equality Commission was honest in this respect even if its argumentation is paradoxically discriminatory, unjust, unequal, and in breach of human rights, not to say of its own statutory mission statement. The whole truth, whether one likes it or not, is clearly written down in the bill and the amendments soon to be. Government is taking us for a ride when it says that its bill and proposed amendments do not introduce abortion into Malta and that the provisions against abortion in the Criminal Code will be retained. But what government is shying away from stating is that the exception to the rule is so wide, so broad, so overwhelming, to make the impossible possible: it even makes it possible, to quote what one man said around two thousand years ago, for a camel to go through the eye of a needle.

When the bill is enacted into law, the result is that Malta will - through a very wide exception in the Criminal Code - allow abortion not only in life threatening situations to a pregnant woman, but to every imaginable and conceivable situation that can somehow or another be justified under the mental state of health criterion of the pregnant woman through which, even on the simplest and flimsiest of grounds, unborn baby killing will be allowed with impunity. Hence, abortion will be allowed not, for instance, in case of one exception - say the case of rape as in some foreign jurisdictions - but in all possible scenarios that can lead to a mental depression. Now allowing rape as an exception is already problematic, for a wrong (such as rape) combined with another wrong (willful and malicious killing of an innocent, defenceless and vulnerable person) will never produce a right - two wrongs do not make a right.

Were government in good faith, were it the case that government does not really and truly want to introduce abortion in Malta, government, as it has been repeatedly advised, would have restricted its amendment to the Criminal Code to life threatening situations of the pregnant woman. Nothing more, nothing less. By not doing so, it demonstrates clearly and unequivocally that government is not interested in protecting vulnerable unprotected human beings in the process of being born, but will instead start permitting unborn babies to be aborted with impunity.

Justice is based on equality. It is properly this that government's changes to its own abortion law totally ignore by promoting inequality between persons. Law's purpose is to remove inequalities, not to create them as government and its equality (sic!) commission are proposing. Once law is universal and general, and once all individuals - whether born or yet to be born - are endowed with personality, all individuals enjoy equal rights. When personality is not recognized as an attribute of an individual - and this happened and continues to happen to date - this personality will bring to naught human capacity. For instance, in the past, slaves had no rights; women did not have the right to vote; in Rome of 2,000 years ago, all adults within one family were subject to the authority of the oldest living ascendant. Today, there are still inequalities in societies where personality is barely or limitedly recognized as with prostitutes, trafficked persons, exploited workers, child soldiers, women who are not paid the same wage as that of a man for the same job, migrant workers who are paid less than Maltese workers for the same job, etc.

These individuals are unequal, deprived of human dignity in various forms, objectified, or have a 'reduced' personality either through the operation of the law, by practice, or through abuse of the law. When a child in utero who enjoys personality - for s/he is not an animal, plant, or an inanimate object - is aborted, that person, that unborn child, is not only deprived of his/her fundamental right to life but also of his/her personhood and dignity. An abortion law, therefore, dehumanizes that person, robs him/her of human dignity and depersonalizes him/her by treating the unborn child in the same way. For instance, Adolf Hitler treated Jews and persons with a disability - through human-made law - as depersonalized living objects not as human beings that enjoy dignity. In the Third Reich those laws were constitutional but undignifying.

Two points that have to be distinguished under the currently obtaining law are the administration of abortion to save a pregnant mother's life and the inducement of abortion to save her health. The former does not constitute a criminal act in so far as it is a necessary consequence to save a pregnant mother's life, but the latter is. The Criminal Code correctly get its priorities right when it punishes the miscarriage of any woman with child. But the miscarriage - the term used in the Criminal Code for abortion - must occur through the intervention of any person that can include a surgeon. Thus, a miscarriage in the proper sense of the word that takes place naturally - by operation of nature - is not considered by the Criminal Code to constitute a crime. But if the miscarriage is induced, that is, procured by any person, including the pregnant mother herself, or through a surgical intervention, or through the administration of drugs by whosoever administered or procured, that constitutes an induced abortion.

However, there is one case, as stated above, where it is legal to induce abortion without falling foul of the criminal law. This is where the life of the mother is in manifest danger. Applying the general principles of law that I have enunciated in a previous contribution, the doctrine of necessity would normally favour the termination of life of the unborn child to save the mother's life. Here one has to balance the life of the mother with the life of the unborn child - one is thus balancing like with like and therefore there is equality (not discrimination) in treatment. One such example would be, for example, the removal of a cancerous uterus. Applying the doctrine of necessity, the removal of a cancerous uterus that would lead to the abortion of the unborn child is not considered to be an induced abortion, even if as a result thereof - whether intended or otherwise - the unborn child's death ensures. But this is not generally speaking a criminal act. But what government, supported by its Equality Commission, is proposing is to balance the health of the mother that can be cured with the life of the unborn child when the mother can be healed and the pregnancy brought to term. And here the injustice lies for it is unacceptable to kill a person when the mother can be cured. There is indeed no comparison between the two. There is no like with like, but two unlike and incomparable situations.

Of course, for doubting Thomases, there is no harm in spelling this principle of necessity in the Criminal Code, especially for those unlearned in the general principles of the law. But even if this is not spelt out for the positivists, the police would not be legally correct to prosecute in such a case as they would be in breach of the general principle of law, of necessity. In so far as the latter principle runs, a distinction has to be drawn between protection of the mother's life and protection of the mother's health. The World Health Organization, of which Deputy Prime Minister Chris Fearne was appointed its President in May 2023, has attributed a very broad definition to the term 'health' that encompasses physical, mental and social well-being. A mother can, on health grounds, decide to abort her unborn baby because she is not in gainful employment, wants to pursue her career instead of rearing a child, or simply does not have the time, inclination, material resources, or wish to rear a child, refuses to undergo the burden of pregnancy or for some capricious reason.

New life is generated from existing life. Chris Fearne's eight cells that will eventually develop into a new born baby are living human cells that ought to be treated with the same dignity as any other person, whether dead or alive. Indeed, the law protects the dignity of a human being from conception to birth, from birth to death, and even after death where the body and memory of the deceased are afforded legal protection. Hence, there is a whole cycle of dignified humanity. The fertilized ovum is as much a living cell as any cell in the human body with the difference that the fertilized ovum needs time - normally nine months - to develop into a fully-fledged human being, And even at birth, the new born is totally dependent of his/her family such that s/he cannot live independently until the passage of a certain period of time. But does this therefore mean that once the newborn cannot procure his/her food, cannot walk straight, and cannot speak, is not a human being? S/he is a bunch of cells, surely more than eight, but still totally dependent on others for his/her sustenance. Without this help, s/he dies. This also applies to a person in a coma who is totally dependent on hospital staff. But still s/he remains a human being.

The fertilized ovum - the zygote as it is called - has its own separate existence within the mother's womb. It is at the stage of fertilization that a new life begins and human dignity accrues. For believers, fertilization is also the time when the soul is implanted in the human body. The mother and father contribute respectively their egg and sperm whilst God animates the new human being in His own image. The individual, human being, or person, call him/her what you want, is ready to start at conception his/her journey on Earth that will one day lead to inevitable death. Humanity is a partner with God in the act of creation. Government and the Equality Commission are partners in innocent life destruction.

When women proclaim that their body is theirs, and that they have a right to do whatever they want with it, including terminating an unwanted pregnancy, whether self-induced or otherwise, through no fault of the innocent unborn child, they are not balancing their right to bodily enjoyment with the termination of life of an unborn, unprotected, vulnerable human being. In order to perpetrate a murder, that is by far more serious than non-enjoyment of one's body for a limited time, one goes to such extreme as to kill. There is no proportionality between killing and non-enjoyment of one's body for a limited period bearing in mind that health conditions can today be treated thanks to the advancements in medicine.

Killing can never bring joy to a family, a nation, a state, or to the human race; on the contrary, it brings about misery, despair, sadness, and remorse. Furthermore, it distorts completely the general fundamental principles of law of primus non nocere and neminem laedere - do not commit harm to others - upon which the whole edifice of the law is constructed. The creation of life, not its destruction, is an ever-fulfilling feat. When safeguarding life, one cannot appeal to emotion, but to rationality, logic, higher principles, and a robust moral code. One must also balance universal human rights such as the right to life of the unborn child, with rights of a lesser nature that are neither fundamental, nor universal, such as the right to abortion. Government, through its abortion decriminalisation bill, is imperilling the fundamental right of life - a human right - to unreasonably terminate life and introduce the philosophy of death and nihilism into the Maltese Statute Book. This is where government and its Equality Commission want to take Malta with their human degrading legislation!

 

Kevin Aquilina is Professor of law, Faculty of Laws, University of Malta