The Malta Independent 28 January 2023, Saturday
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When the exception becomes the rule

Kevin Aquilina Sunday, 4 December 2022, 09:54 Last update: about 3 months ago

I have already had the occasion to write in this newspaper on government’s proposed amendment to the Criminal Code to legalise abortion by stealth. In this piece, I examine briefly government’s proposed amendment to the Criminal Code by identifying only four difficulties raised by this proposal.

First, the amendment, as written, neutralises the abortion provisions of the Criminal Code. Rather than being an exception to provide for one single case where, to protect the life of a pregnant woman, the unfortunate consequence might be that an unborn child in utero perishes, the amendment opens the floodgates by going further than that as what government is proposing is that the exception becomes the rule.

When the exception is worded so broadly, then it becomes the rule because the state of exception – as Carl Schmitt and Giorgio Agamben would have argued – becomes the state of normality. If, on the contrary, the exception is drafted narrowly to remain an exception to the criminalisation of abortion, it retains its exceptional status and does not displace the crime of abortion.

Second, when one is confronted with a situation where, to save the life of a pregnant woman, the end result might be that an unborn child perishes, one has to balance here between the right to life of the pregnant woman, on the one hand, and the right to life of the unborn child, on the other. Justice, as Aristotle teaches us, is all about balancing so much so that in law we resort to the general principle of law known as the principle of proportionality.

This is what courts are called upon to apply every single day when deciding upon cases pending before them. Of course, from a human rights perspective these are very delicate situations and often it is not that easy to decide how to proceed. However, there are certain legal principles that can be applied in this case.

(i) The first principle is that of guaranteeing the right to life of both the pregnant woman and the unborn child. This would comply fully with the fundamental right to life of both persons concerned. Where this is medically possible this should be the only course of action that a conscientious obstetrician should opt for. For what is more precious to a human being than the right to life?

(ii) The second principle is that the attending obstetrician should not opt for the culture of death and voluntarily withdraw his or her services in such delicate moment by leaving the course of nature to take its toll whereby both the pregnant woman and the unborn child die. To do so, the attending obstetrician would be renouncing from his or her duty to save life, more so if through a medical procedure life – even if that of one person involved – can be saved.

(iii) The third principle to be applied is that the attending obstetrician should do all that is possible to save the pregnant mother. If, alas!, as a collateral damage, this means that the life of the child still to be born perishes, then – through the application of the doctrine of necessity – this is not considered to be an abortion because, as we say in law, necessity has no law (necessitatis non habet legem) and that, confronted by that situation, an attending obstetrician cannot do the impossible of saving both lives when medically this is entirely impossible (nemo tenetur ad impossibilia – nobody is expected to do the impossible).

When, therefore, obstetricians are saving the life of the pregnant woman but, as an unwilled consequence, the life of the unborn child perishes, there is no question of an abortion of an unborn child materialising because neither the pregnant woman nor the attending obstetrician, through the medical procedure in question, have the requisite mental element to kill the unborn child but the mental element to save the life of the pregnant woman.

Thirdly, the amendment deprives the pregnant woman for her right to choose that she gives up her own life to save the unborn child as when, for instance, the pregnant woman has been diagnosed with a terminal disease and the unborn child can be prematurely delivered viably.

Fourth, the amendment as drafted is too short and devoid of detail so much so that it does not regulate abortion properly. If government wants to introduce abortion in Malta it should do so via an abortion law and assume responsibility for such a measure. The amendment tends to introduce more uncertainty into the law then is currently the position to date.

It does not state, for instance, that an attending obstetrician should enjoy a right of conscientious objection. In this way no government-employed obstetrician will be forced by the health minister – contrary to his or her conscience – to abort an unborn child.

Nor does it state at what stage is it possible to terminate the life of the unborn child. Is it only in the case of an unborn embryo that this can happen? Is it only in the case of an unborn foetus that this can happen? The reply is that as the amendment is drafted, when the pregnant woman’s health (as opposed to life) is at risk, the unborn embryo and foetus can both be aborted up to the very ninth month of pregnancy before the child is delivered.

This procedure, so far as I am aware, is not allowed abroad by any country, even in those countries that have the most liberal abortion laws. There is, therefore, not even – contrary to these other foreign countries – a modicum of proportionality in government’s proposed amendment to introduce abortion in Malta as the scale of the balance is disproportionately and inhumanely tilted in favour of the culture of death. So, not even as an abortion law, does government’s proposed law pass the test of proportionality.

Hence, if the government wants to codify an existing practice that is in line both with Human Rights Law and the Criminal Code, a distinction has to be drawn between two fundamental concepts: saving the pregnant woman’s life, on the one hand, and saving both the pregnant woman’s life and her heath, on the other. In the former case, no abortion is committed; in the latter case, government would – as it is suggesting – have opted to introduce abortion into the Criminal Code as a wide exception that nullifies the crime of abortion in that Code.

As the proposed amendment is one that touches upon matters of conscience, and as all Members of Parliament enjoy freedom of conscience in terms of the Constitution of Malta and the European Convention Act – irrespective of whether they are given a free vote or not by their respective parliamentary whip – all MPs should exercise their freedom of conscience in voting on this amendment – whip instructions notwithstanding – and abort the government’s proposed amendment.

 

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta

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