The judge and her verdict

Nothing should be surprising about Madam Justice Miriam Hayman’s decision in the Andrea Prudente case.

Nothing, that is, except the editing: five times, the rupture of the membrane is called a ‘rapture’; once, the judge says Prudente’s fears for her life were strengthened by the intervention of ‘pro life elements’, instead of ‘pro choice’; the number of misspellings is bewildering.

But nothing is bewildering about her legal reasoning. Hayman accepted the consensus of the medical experts familiar with the details of the particular case. And her take on the law is – with one partial exception – compatible with the views of pro-choice former judges such as Ruth Bader Ginsburg (US Supreme Court) and Jonathan Sumption (UK Supreme Court).

In the summer of 2022, Prudente, a 38-year-old US citizen, came to Malta on holiday while 15 weeks pregnant. She suffered a ruptured membrane, lost her amniotic fluid, was admitted to Mater Dei Hospital and, fearing for her life, in a state of acute distress, requested an abortion. It was refused; Maltese law does not permit it. An air ambulance took her to Spain where an abortion was performed.

A constitutional case followed. Hayman had to decide if Prudente had been subjected to dehumanising treatment by the hospital, on grounds that her choice was overridden and her life was put at risk. And the judge was asked to find that the abortion ban violated both the constitution and various treaties Malta subscribes to, including the European Convention on Human Rights (under the jurisdiction of the Council of Europe) and the European Charter of Fundamental Rights (EU jurisdiction).

On the medical treatment, Hayman accepted the testimony of the Maltese medics managing Prudente’s treatment: her life was never remotely at risk.

The judge has been accused of ignoring international medical opinion. She did not ignore it: she discounted it.

She found it was hypothetical – warning about what might happen in various scenarios instead of addressing what did happen. She preferred to narrow the case to Malta’s record of dealing with such cases, instead of broadening it to include international cases. There is nothing unusual about judges deciding cases on specifics.

Having decided the medics did their best in accordance with the law, the issue became the law. Hayman refused to discover a right to abortion buried inconspicuously in some other fundamental right either in the Maltese constitution or in the European Convention.

In this, she is in line with Strasbourg case law and, currently, the US Supreme Court. More significantly – given the accusations levelled against Hayman by the pro-choice lobby – she has the agreement of those two pro-choice justices, Ginsburg and Sumption, both of whom stated that it was a grave mistake for abortion to be legalised from the bench, instead of in parliament and the political realm.

Hayman allows that there may be an inbuilt tension between the decisions of the Strasbourg court and that of the EU court. Strasbourg serves 46 member states of vastly different political complexions and, so, must allow a wide margin of appreciation of cultural difference; the EU court is biased in favour of closer union and will tend to narrow that margin.

Hayman allows for that future development; she simply refuses to jump ahead of it. It is not an outrage when a judge respects institutional boundaries and allows public debate to take its course.

Hayman’s decision has been described as scathing because of a single instance where she passes judgement on the pro-choice lobby (or rather, ‘elements’) as being partly responsible for Prudente’s distress. She says the lobby enlarged Prudente’s fears about the dangers to her life in order to ‘use’ her for their legal purposes.

The lobby has indignantly protested that Hayman is patronising Prudente, treating her as incapable of intelligent choices based on her self-interest. Actually, Hayman goes out of her way to show that Prudente’s state of mind and choices were understandable in the circumstances: she believed she was in imminent danger, even if, objectively, she was not.

There is no contradiction between saying someone is intelligent and autonomous and saying that, in particular circumstances, they were under duress or under an illusion.

Whether the pro-choice lobby did actually exploit Prudente is a different matter. If the lobby believes sincerely that the Maltese medical protocol is a tragedy waiting to happen, then no exploitation took place. There is no hard evidence that the lobby is insincere. The judge arguably jumped the gun.

Which leaves us with the one puzzling legal issue. Prudente alleged gender-based discrimination. The judge dismissed that by saying Prudente was treated like all other women. But that’s not what gender-based discrimination means.

It always means discrimination relative to men. With respect to abortion, it means – as Ginsburg underlined – that women have an “undue burden” in participating in social life relative to men if they need to bring unwanted pregnancies to term.

In the Prudente case, the undue burden argument was not relevant. She looked forward to having her daughter – she had already decided on a name – and only wanted an abortion when she believed her daughter had zero chances of survival.

But it remains an odd misunderstanding to have in a decision that will form part of important Maltese case law. Make no mistake: what counts as ‘undue burden’ is the engine of the growing demand for the end to the abortion ban.