The Prudente judgment

I do not intend to enter into the wider Andrea Prudente controversy or the reactions of lobby groups. Nor am I here to express a personal preference on whether Maltese abortion law should be wider or narrower. My purpose is simply to identify what the court decided and where responsibility lies if a different threshold is desired.

The judgment was delivered by the First Hall of the Civil Court, sitting in its constitutional jurisdiction. Its task was to decide whether Andrea Prudente’s treatment and Maltese law breached her rights under the Constitution of Malta and the European Convention on Human Rights.

The events occurred in 2022, when articles 241 and 243 of the Criminal Code criminalised abortion and medical assistance in causing it.

In 2023, parliament introduced article 243B of the Criminal Code through Act XXII of 2023. It excludes criminal responsibility where an intervention is necessary to save the life or protect the health of a pregnant woman suffering from a complication that may place her life at immediate risk or her health in grave danger capable of leading to death.

The court did not apply article 243B retrospectively. It considered it because the amendment now places in express statutory language an exception not expressly set out when the events occurred. It also held that the amendment did not admit that the previous law had violated Prudente’s fundamental rights.

The first principle is that a poor prognosis for the foetus is not, by itself, proof that the mother’s life is in danger. The court stated: “Għalkemm il-prognosi tat-twelid vijabbli kien wieħed baxx, pero’ ma kienx eskluż” (“Although the prognosis of a viable birth was low, it was not excluded.”)

The evidence accepted by the court was that Prudente was receiving antibiotics, was monitored and had not developed sepsis or another infection requiring immediate intervention. Although the prospects of foetal survival were low, they had not been excluded.

The court, therefore, separated two questions: whether the foetus was likely to survive and whether continuing the pregnancy placed the mother in the form of danger recognised by law. A poor answer to the first did not automatically determine the second.

That distinction is reflected in article 243B of the Criminal Code. The statutory entry point is not simply a poor foetal prognosis. It is danger to the woman’s life, or grave danger to her health capable of leading to death. Foetal viability then becomes relevant as a further condition.

Doctors did not violate fundamental rights merely because they were prepared to give the foetus a chance- Robert Musumeci

The second principle is that the doctors did not violate fundamental rights merely because they were prepared to give the foetus a chance, however small, while the mother was not in imminent danger. The court stated: “Meta omm tkun f’periklu vera, huma jintervjenu” (“When a mother is truly in danger, they intervene”).

The evidence accepted by the court was that the Mater Dei Hospital doctors would have intervened had there been sepsis, deterioration in blood results or other signs of danger. They were not prepared to terminate solely because the prospects of a viable birth were low.

The court then turned to the constitutional aspects. Under article 33 of the Constitution of Malta and article 2 of the European Convention on Human Rights, the court accepted that the State has a positive obligation to protect life.

The issue was whether Prudente had been exposed to a real and sufficiently immediate danger which the State failed to address. On the facts accepted, she had not.

Under article 36 of the Constitution of Malta and article 3 of the Convention, the court did not deny Prudente’s anxiety and psychological suffering but held that the State’s conduct had not reached the severity required to constitute inhuman or degrading treatment.

Under article 8 of the Convention, the court accepted that restrictions on termination may interfere with private life and personal autonomy. It nevertheless observed that article 8 does not establish a general right to abortion. It examined whether the interference was lawful, pursued a legitimate aim and fell within the State’s ‘margin of appreciation’.

The real issue is, therefore, one for parliament. There is nothing to stop our MPs to legislate in favour of lawful termination where a foetus is medically non-viable, where there is a fatal foetal condition, or where continuing a pregnancy causes serious harm to health without a probable risk of death. Parliament may choose such wider grounds. Those are legislative choices.

The court, however, could not replace the existing legal question – whether the woman was in the form of danger recognised by Maltese law – with the different question of whether the foetus was unlikely to survive. That would alter the current threshold chosen by parliament.

Those who disagree with that threshold may continue to insist on our MPs to seek its amendment. Meanwhile, the judge’s duty is to apply the law and the evidence before her, not to substitute her own policy for that chosen by parliament.

Robert Musumeci is a senior lecturer at the University of Malta and has a PhD in public law.