The Malta Independent 30 September 2022, Friday
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American woman who was refused abortion files constitutional case

Thursday, 22 September 2022, 14:25 Last update: about 7 days ago

An American woman who was refused an abortion in Malta, despite the pregnancy being unviable and potentially life threatening to the mother, has filed a constitutional case against the Health Minister, arguing that Malta’s blanket ban on terminations was in breach of a number of international laws.

Andrea Prudente’s plight made international headlines last June, after doctors at Mater Dei Hospital refused to terminate the pregnancy, for legal reasons, because the foetus still had a heartbeat, despite the woman having lost all amniotic fluid and the placenta being detached.

Malta’s complete ban on abortion prevented doctors from carrying out the procedure – in the process avoiding serious, life-threatening complications for the mother- without facing serious criminal charges. 

Prudente’s case had placed Malta’s strict anti-abortion laws under the spotlight of international scrutiny as the story of this American citizen and her partner made the rounds.

In an application filed Thursday morning on Prudente’s behalf by her lawyers, she asked the First Hall of the Civil Court in its Constitutional jurisdiction to declare the applicable sections of the Criminal Code to be in violation of the Constitution and the European Convention on Human rights. As a consequence of this, the court was also asked to declare that Prudente had suffered a breach of her fundamental human rights and order the State to compensate her for the damages she suffered.

“The plaintiff had no other option but to wait until her body went into labour, a process that could take weeks or months, and therefore had to seek treatment abroad because her life and health were at risk,” the application says.

In view of the risk of her developing septicaemia or haemorrhages, Prudente’s insurance company had made arrangements for her to be medically evacuated to Spain, where the necessary medical procedures were carried out.

“This had been a planned and highly anticipated pregnancy for the plaintiff and her partner, Jay, and although it was not an easy decision, she had no other choice but to seek a termination of her pregnancy without further delay as her life was in danger.”

The experience had been a highly traumatic one to the woman, with the resultant suffering continued to this day, she said. “She went through all this because our law does not permit the termination of a pregnancy, even if the mother’s health is at risk,” her lawyers pointed out.

“It is the humble understanding of the plaintiff that this constitutes a serious shortcoming in the defendant’s positive obligations… particularly the safeguarding of the safety, dignity and privacy of the plaintiff and her partner,” reads the application.

The lawyer argues that the lack of access to medical care, which led to Prudente’s health being endangered, amounted to a breach of the woman’s fundamental human rights. It had led to her treatment taking longer than that recommended by international standards, argued the lawyer, going on to say that the absolute absence of access to termination in this type of case constituted inhuman and degrading treatment, discrimination on the grounds of gender, as well as having an impact on her private life. 

The lack of access to medical treatment also constituted a breach of women’s fundamental rights in general, as protected by the European Charter of Human Rights, Universal Declaration of Human Rights, Civil and Political Rights Covenant, Convention of Elimination of Discrimination Against Women, ICPD Programme of Action, Beijing Platform for Action, as well as Malta’s Constitution, it was argued.

Lawyers Lara Dimitrijevic, Stephanie Caruana, Andrew Sciberras and Rebecca Attard Muscat signed the court application.

A pro-choice rally is planned for Sunday at 2pm outside the Auberge de Castille, to demand the decriminalisation of abortion and its re-classification as an essential healthcare service.

 

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