The Prudente judgment: A landmark defence of Malta’s constitutional framework

On July 1, in a very lucid, legally wise and well discerned judgment, the First Hall of the Civil Court, in its constitutional jurisdiction, presided over by Judge Miriam Hayman, delivered what is likely to become one of the most significant constitutional judgments in recent Maltese legal history in the defence of life within the applicable domestic laws.

The case centred on Andrea Prudente, an American woman who, while on holiday in Malta, experienced serious complications during her pregnancy.

Although the pregnancy was considered highly unlikely to remain viable, medical professionals at Mater Dei Hospital maintained that there remained a remote possibility of foetal survival and, crucially, that Prudente’s life was not in danger. On that basis, they refused her request to terminate the pregnancy, maintaining that doing so would expose them to criminal liability under Maltese law.

The couple subsequently travelled to Spain, where the pregnancy was terminated. Prudente later instituted constitutional proceedings against the Maltese State, alleging violations of a number of fundamental rights, namely:

• the right to life (Article 33 of the Constitution and Article 2 of the European Convention on Human Rights);

• protection from inhuman or degrading treatment (Article 36 of the Constitution and Article 3 of the Convention);

• the right to respect for private and family life (Article 8 of the Convention); and

• protection from discrimination (Article 45 of the Constitution and Article 14 of the Convention).

The court examined each claim individually and ultimately rejected them all. Central to its reasoning was the conclusion that Prudente’s fears had not arisen from any action or omission of the Maltese State, but rather from the information and advice she had received from third parties.

The court repeatedly emphasised that there was never any medical evidence demonstrating a real and imminent risk to Prudente’s life. Had such a risk materialised, the doctors had made it clear that they were prepared to intervene. Therefore, the court rightly argued, that Prudente was the victim not of the Maltese State, but of the pro-choice activists and medical professionals who sought to influence her, instil fear in her, and use her as a means to achieve their aims.

The right to Life

Prudente argued that the State had failed in its positive obligation to protect her life by not providing sufficient legal safeguards within Malta’s prohibition of abortion. She further contended that the subsequent introduction of Article 243B of the Criminal Code amounted to an implicit admission that the previous legal framework had been inadequate.

The court firmly rejected this argument. It held that the legislative amendments merely served to provide greater legal certainty and reassurance to medical professionals and patients alike, rather than remedying any constitutional defect.

There was never any medical evidence demonstrating a real and imminent risk to Andrea Prudente’s life- Joseph Bugeja

The judgment also drew an important distinction between receiving adequate medical care and receiving the specific treatment a patient requests. According to the court, Prudente received exemplary medical treatment throughout her stay in Malta. The fact that the doctors declined to perform the procedure she sought did not mean that she had been denied medical assistance or that her right to life had been compromised.

Protection from inhuman or degrading treatment

Prudente further alleged that the refusal to terminate the pregnancy subjected her to inhuman and degrading treatment by forcing her to remain in a situation which exposed her to serious risks.

Relying extensively on the jurisprudence of the European Court of Human Rights, the court reiterated that Article 3 applies only where treatment reaches a particularly high threshold of severity. It concluded that threshold had not been met in the present case.

Interestingly, the court also highlighted Strasbourg case law indicating that coerced or heavily pressured abortions may themselves amount to inhuman and degrading treatment. In other words, the Convention protects individuals not only from being denied certain medical procedures, but also from being subjected to them against their will or through undue influence.

The right to respect for private and family life

The court acknowledged that Article 8 imposes both positive and negative obligations upon the State. Nevertheless, it held that Malta’s prohibition of abortion satisfied the well-established three-part test developed by the European Court of Human Rights for lawful interference with private life.

First, the interference was clearly prescribed by law through the provisions of the Criminal Code. Secondly, it pursued the legitimate aim of protecting unborn children. Thirdly, the court found that the prohibition remained necessary in a democratic society.

In reaching this conclusion, the court observed that there is no European consensus on abortion and that considerable latitude remains available to individual states. It even referred to the reversal of Roe v. Wade by the United States Supreme Court as evidence that contemporary democratic societies continue to adopt fundamentally different approaches to abortion legislation.

Protection from discrimination

Finally, Prudente argued that Maltese law discriminated against her by denying her medical treatment solely because she was a pregnant woman.

Once again, the court disagreed. It noted that the criminal prohibition on abortion applies equally to all women and that criminal liability extends to any individual who assists in procuring an unlawful abortion. The legislation therefore operates generally and does not single out women for unequal treatment within the meaning of the constitutional or Convention provisions on discrimination.

The Prudente judgment is likely to remain a landmark decision in Maltese constitutional jurisprudence. Beyond the public controversy surrounding the case, the court delivered a detailed and carefully reasoned analysis of the constitutional and Convention rights invoked, concluding that Malta’s legal framework was compatible with both domestic constitutional law and the European Convention on Human Rights.

Whether one agrees with the outcome or not, the judgment stands as an authoritative defence of the existing legal framework and will undoubtedly shape future legal debate on one of the country’s most sensitive constitutional issues. 

Joseph Bugeja Ph.D. (Groningen) is an advocate and University lecturer.