Must it take a retired judge to separate the issues for us? In the welter of editorials, articles, irate letters to the editor and opinion pieces written by people popping out of the woodwork to tell us what they think about abortion, there has been a common thread. This is that abortion is wrong, it is against God’s law and our law, and anybody who speaks in favour of it must be silenced. Case closed. End of story. No debate allowed.

The day before yesterday, there was a letter in the correspondence columns of The Times from Victor Caruana Colombo, the significance of which would have escaped the notice of many readers, because he didn’t decorate his name with the title Judge Emeritus or Emeritus Judge. “Under our law abortion is a crime,” he wrote. “It is also a crime to publicly instigate another to commit a crime. So publicly instigating others to perform abortion is a crime. Arguing in favour of decriminalising abortion is another matter, and lawful.”

So there you have it, if you needed to be told. Ah, but those who have rushed forward to tell us why abortion is wrong, when they never bothered to do the same with the ill-treatment of immigrants, are not claiming that those who speak for the decriminalisation of abortion should be silenced because they are doing something criminal. They are saying something much worse: that these people should be silenced because the majority doesn’t agree with them and because it is an absolute and incontrovertible truth that abortion is wrong and against

‘religion’.

* * *

There is another point to be made: that social developments sometimes surge ahead of the law, so that for years before the law is changed or repealed, it is ignored. Not ignoring it would create a scandal and a victim, a public outcry and debate, and the spur for the law to be changed in any case. I list just two examples from living memory: sodomy and adultery, both of which were criminal acts until the 1970s. Yet do any of my older readers remember people being prosecuted for either? I don’t think so. This is not because sodomy and adultery didn’t occur – far from it – but because society had moved ahead of the law, to an innate understanding that what consenting adults did in the privacy of their bedroom, whether bound by the vows of marriage or not, was not the business of the state. The prosecution of an individual for adultery or sodomy even then had overtones of the Inquisition, even though 1960s Malta was far behind the present in its social

attitudes.

When we react with distaste to the prosecution and punishment of adulterers and homosexuals in fundamentalist Islamic states, we would do well to remember that just over 30 years ago, our laws entitled our police to do this too. Though the punishment was nowhere near as harsh, the underlying principle was the same. When our criminal laws on adultery and sodomy – not homosexuality, but the act of anal penetration, even between a man and a woman – were done away with in the 1970s, Maltese society had long since moved beyond thinking that these were grounds for public prosecution and punishment by the state. Maltese society remained resistant for years afterwards to the very idea of homosexuality, and continued to think of adultery in terms of a mortal sin, but it didn’t want homosexual lovers or adulterers pelted in the public stocks and punished.

The same thing has now happened with abortion. Fortunately, the law on abortion, like almost all other areas of criminal law, is territorial. Women cannot be prosecuted in Malta for abortions they have had in Sicily, for example, where the procedure is legal. A couple of lawyers have chewed over the law in the articles for the newspapers, trying to stretch it around to prove that Maltese women can be prosecuted in Malta for abortions they have legally outside Malta, but it appears to me self-evident that this is neither possible nor desirable. Indeed, it would be outrageous.

Yet even if a woman or girl were found to have had an abortion in Malta, I think I can safely say that general public opinion would be indifferent towards or

mildly for the prosecution of the abortionist, but very much against the prosecution of the woman or girl. Prosecuting a woman who has had an abortion is an assured way to turn her into a victim, draw down sympathy for her where before she might not have had any, and make her a martyr for a cause that has not yet taken shape. It will also bring back the echo of the Inquisition with its persecution of female victims for ‘crimes’ linked to sex and reproduction, by men. Men who take too much interest in punishing women for these things strike me as somewhat perverted, but let’s not go into that. We know this instinctively, which is why despite the rumours of quack abortionists practising in Malta over the decades, I have dim memories from long ago of just one being prosecuted, and even those memories might be completely wrong.

If the police have evidence that a woman has had an abortion in Malta, they are obliged to take action against her. But who in heaven’s name is going to report a woman or girl to the police for having an abortion? What sort of person would this be? Not a person with the best interests of foetuses and God at heart, that’s for sure, but a pot-stirrer with a grudge. And so it would be shades of the Inquisition, all over again, when women were reported by their troublesome neighbours as witches whom the devil visited at night.

We haven’t yet reached the stage with abortion that Malta had reached with adultery and sodomy in the 1970s, when the criminal laws against both could be repealed without disruption and shock to the system. Decriminalising abortion cannot be countenanced now; Maltese society is simply not ready for it. That is not to say it will not be ready for it within some years, which is why the Gift of Life Movement is trying to use the Constitution to defeat democracy and ensure that the law cannot be changed in line with changes in social attitudes. If you truly believe that attitudes towards abortion will never change here, remember that it seems unbelievable to us now that a man could be prosecuted for having consensual penetrative sex with another man. Yet it happened often, most famously to Oscar Wilde. It could have happened here, too, up until the 1970s, because the law provided for it.

I don’t think anybody but the most cruelly small-minded religious people, those who abide by the letter of Catholic law while ignoring its Christian spirit, would want to see women and girls being prosecuted in the criminal courts for having abortions. And yet the law provides for this. Society has moved ahead of the law, but it hasn’t moved far enough ahead yet. The slow pace of change, and the fact that the need for abortion hasn’t created the kind of pressure it has everywhere else in the world for changes to the law, is due to one thing only, and it’s neither religion nor morals. Malta has abortion, in nearby Catania. If this ease of access to abortion were to be removed (how?), then the pressure for the laws to be changed in Malta itself would escalate overnight.

As things stand, we are living in a reassuring and comforting hyper-reality where there is no abortion, while the underlying reality is that there is quick and easy access to abortion. Yes, it is hypocritical. Yes, it is one giant game of ‘let’s pretend’. Yes, it is childish. But it is also comforting to pretend, and until we move out of the comfort zone of having abortions in Catania while pretending that nobody has abortions, the laws are going to stay exactly the way they are.