The new Maltese abortion Bill is potentially worse for pregnant people than previous blanket ban

On Wednesday evening, the Maltese parliament ‘unanimously’ approved the controversial Bill 28, which should have been a small step forward in the Maltese struggle for reproductive rights. Instead, what we got was a sharp U-turn and a situation which could potentially be even worse for women and pregnant people than the former blanket ban. 

Some context: Malta is a Catholic country — and the smallest country in the EU — located under Sicily, with a population of just under 600,000. A former colony of Britain and a republic since 1974, Malta is home to Europe’s most draconian abortion laws. Before Bill 28, abortion was illegal under every circumstance. The law is so strict that even ending an ectopic pregnancy requires the authorisation of the treatment by the Directorate for Pharmaceutical Affairs, which considers each case in line with the double effect principle. 

Despite the ban, Maltese people still have abortions. Pregnant people travel, including to the UK, for surgical abortions. Medical abortions are on the rise, with 424 pill packs sent to the island by online providers in 2022. People who have abortions face jail time if caught. Doctors charged with helping someone procure an abortion could be banned from practising their profession, in addition to a custodial sentence. Earlier this month, a Maltese woman in an abusive relationship, who had been assaulted by her partner, was charged with having a medical abortion at home. It was her partner who turned her in. 

Last year, in the wake of a high-profile case that made international news, where American tourist Andrea Prudente was denied a life-saving abortion after her water broke at 15 weeks (a complication known as PPROM), the government had said they wanted to make a change to the law to avoid a case like this happening in the future. Bill 28 was originally supposed to introduce amendments to the law allowing for abortion when the woman or pregnant person’s life or health were at risk. This met with huge backlash from the vociferous anti-choice lobby and the Opposition party. The President of Malta threatened to resign rather than sign the Bill into law. 

But to those of us fighting for reproductive rights, these amendments seemed the bare minimum. It’s hardly radical to say you don’t think women should be left to die, though some of my compatriots might beg to differ. Still, the fact that these medical exceptions were having to be acknowledged — that was something. We took heart when, last November, during the Bill’s second-reading stage in Parliament, Prime Minister Robert Abela defended the Bill despite anti-choice opposition. “Women’s health is non-negotiable,” he said. 

And yet, seven months on, the government has done away with its principle to safeguard women’s health.

Under the new amendments to the law, doctors will be legally allowed to terminate a pregnancy but only if the woman or pregnant person’s life is at ‘immediate risk’. This was the unspoken rule before, so it seems the only people this Bill really protects are medical professionals. For the woman or pregnant person undergoing what amounts to a frightening, traumatic, and dangerous situation, it changes nothing at all. 

The ‘health’ aspect has now been amended, and only applies to medical circumstances that “can lead to death”. This excludes situations where circumstances could lead to severe disability but not death. 

The amendment also prevents doctors from performing an abortion if the foetus is deemed viable — i.e. capable of living outside the uterus. In these cases, the foetus will need to be delivered before any medical intervention is carried out to treat the woman or pregnant person, regardless of her wishes. This is allegedly in response to concerns by the anti-choice lobby that the new Bill would lead to late-term abortions. 

Concerningly, the amendment also specifies that a team comprising three medical professionals must decide on whether or not the termination can occur. I can only imagine the uproar that would arise if it were codified in law that any other lifesaving intervention required the same protocol. If defibrillation or intubation or CPR suddenly required the authorisation of three doctors, people would rightly be outraged. So why should this extreme measure be taken in the case of women’s healthcare, if we are saying that the termination can only occur as a lifesaving measure?

It is this latter point, in conjunction with the qualification that a person’s life must be in “grave jeopardy”, that potentially makes the new legislation a worse option than the previous blanket ban, and could have fatal effects. This qualification restricts the margin of interpretation available to doctors and codifies that restriction into law. A woman or pregnant person’s life would still have to be at risk before doctors can intervene, and only then can the process begin whereby three specialists must agree on termination. And even then, what happens if one of those specialists is a so-called conscientious objector?

In an interview with The Sunday Times of Malta, Maltese gynaecologist Mark Sant said: “It now takes three specialists to say that an infection is life-threatening instead of just the one taking care of her. In the past, the consultant would discuss with their team and decide that yes, this is serious. Now there will be some complex mechanism requiring three approved specialists to decide this, which will invariably take up more time and possibly bring around further delays.”

Writing this, I feel, as do many of my fellow Maltese activists, a deep sense of betrayal. I feel sad and worried for the women of my country. The stipulations of this Bill illustrate a remarkably high tolerance in Malta for women’s suffering — indeed, if we are pregnant, we would need to be literally dying before we can be helped. 

Voice for Choice Malta has withdrawn its support for the Bill, citing the amendments “unworkable and dangerous” and saying the situation could lead to vulnerable pregnant persons being left permanently disabled or even dead. They said: “Even if the revised Bill 28 still allows doctors to terminate a pregnancy that is causing a risk to life without the authorisation of additional specialists, it is highly likely that doctors will seek authorisation in all cases due to fear of prosecution, leading to a ‘chilling factor’. This would be a step backward from the status quo of simply not enforcing the law in hospitals and may lead to pregnant persons facing even longer delays and barriers to treatment than they do now.”

The Maltese government had an opportunity to make a real change and prove itself as the progressive movement it aspires to be. Unfortunately, it has instead capitulated to sanctimonious fundamentalists who have no empathy for women’s suffering, and has taken two steps back when it comes to safeguarding the health of women and pregnant people. 

Davinia Hamilton is a performer, writer, and pro-choice activist. She is a member of the Abortion Rights Executive Committee, and co-authored the award-winning play Blanket Ban, about the consequences of Malta’s complete ban on abortion. You can buy a copy of the playtext here.