Women seeking abortions outside of Malta is not illegal, former Judge of the European Court of Human Rights, Giovanni Bonello explained when questioned by The Malta Independent about the subject.

He, however, emphasised that there are various aspects to abortion, including a fundamental ethical one. Bonello limited his discussion exclusively to some legal facets which may, but sometimes do not, take these important ethical aspects on board.

Bonello refers to case law in the Strasbourg Court whereby the Irish Attorney General attempted to impede a woman from going to the UK for an abortion, since at the time Ireland did not allow for abortions except in the case where the woman’s life is in danger.

The final judgment stated that abortion was a crime in Ireland, but not in the UK. Bonello explains that there are only very limited cases were extraterritorial criminal jurisdiction applies, which is the legal ability of a government to exercise authority over crimes committed abroad, beyond its normal boundaries.

He gives the example of terrorism where several states claim extraterritorial jurisdiction. Bonello also continues to say that extraterritorial jurisdiction needs to be specifically expressed in the law. This does not apply to the current local legislation on abortion, making it legal for women to seek an abortion abroad.

When questioned if the Abortion Support Network, an organisation that provides information on abortion services and travel arrangements to reach clinics in several EU countries, is within its legal rights to do so, Bonello replied that should the case end up in the Strasbourg Court the Network’s stand would probably be upheld.

This means that anyone in Malta could be allowed to receive information to get an abortion abroad. He says, however, that there has been no case law on this matter as criminal prosecutions for abortion have been extremely rare in Malta.

“So long as it is crime in Malta, it remains a crime here. But supporting someone to get an abortion in a country where it is a non-crime, remains within a person’s rights,” adding that “of course this holds from the legal point of view, not from a moral perspective.”

 

Can the ECHR ever rule abortion is a human right?

Bonello states that abortion is perceived differently in countries around the world, from Malta legislating abortion is always a criminal offence, to the USA’s Supreme Court ruling abortion is a fundamental human right.

“It is for this reason that I believe the European Court of Human Rights will be very wary to make a blanket statement listing abortion as a fundamental human right,” Bonello explains, but continues to say that it did happen in the US with the case of Roe v. Wade.

He notes that abortion is an emotionally loaded subject, which involves religion, culture, tradition, and legal history and this makes it very complex. “Some people see it as murder and some think late-term abortions should be available as a human right. I understand there is a lot of hesitation about the subject. It is highly unlikely the Strasbourg Court will want to impose a universal European rule, when there is still no consensus to abortion in Europe.”

Bonello, during his time as Judge in the European Court of Human Rights was one of the judges who ruled in the case of A., B. and C. v. Ireland, which was a landmark 2010 case which concerned two Irish women and one Lithuanian woman, in their first trimester of pregnancy, who challenged Ireland’s then restrictive abortion laws.

The case was based on the right to privacy, under Article 8, but the court rejected the argument that article 8 conferred a right to abortion.

It did, however, find that Ireland had violated human rights by failing to provide an accessible and effective procedure by which women can establish whether she qualifies for a legal abortion.

Back then, Ireland’s laws stated that an abortion was only allowed where continuation of the pregnancy would put a woman’s life or health at risk.

The three anonymous women, recorded in the case as “A,B and C” travelled to the United Kingdom to have abortion, because abortions were unlawful or unobtainable in Ireland at the time.

A distinction was made between applicant C who had had an abortion because her life was at risk.

Whilst the Court held that “Article 8 cannot… be interpreted as conferring a right to abortion.,” it nevertheless considered that Ireland had violated article 8 with regards to the third applicant C, because it was uncertain and unclear whether she could have access to an abortion in a situation where she believed that her pregnancy was life-threatening.

The Court maintained that Ireland had a broad margin of appreciation to maintain its existing laws where they were sufficiently clear but had violated human rights when failing to uphold the current laws it had in place at the time.