We write this opinion as two professionals, a lawyer and a medical doctor of an unequivocal pro-life persuasion.

As the government has rushed through the final stages of the “abortion” law, we are writing after it has been approved in parliament through a unanimous vote. We agree and support this, but we would have preferred clarifications during the parliamentary debate of June 24.

Adequately analysing the wording of the law and referring textually to parliamentary debates would require far more space than we are allowed.

Central to our considerations is that no quarter is given in the law for what is, in fact, an abuse of the medical profession that leads to illicit abortions. Having said so, no law can eliminate abuse, and the medical profession should be on the lookout for clearly illegal practices being criminally passed off as legitimate and ethical practice.

We also seek to ensure that the law does not unnecessarily, or even dangerously, hinder, or make impossible, a valid justification for cases in which the “cessation of a pregnancy” results from a legally, medically and ethically justifiable medical intervention for purposes other than the “cessation of a pregnancy” itself.

This law indicates that what is codified as legitimate is not an abortion at all but a medical intervention for other purposes which is necessary and directed by the circumstances. In such legitimate case, the death or harm of the embryo or foetus cannot be the purpose of the medical intervention but an indirect consequence of the medical intervention.

Throughout the legislative process, there was confirmation aplenty that abortion remains a crime. Clear pro-life statements were made by major government exponents. This was so from day one, although the original government proposal was not fit for the purpose claimed to be its original intent.

Moreover, parliamentary debates are very important for the judicial interpretation of legislation. The deputy prime minister, prime minister and the minister responsible for justice clarified the guiding principles for the current and future interpretation of this new law.

It is clear from their words that the new law applies only in cases in which the choice is between letting both mother and child die or saving the mother. It absolutely excludes the application of the law if there is a possibility to save both (see Chris Fearne, parliament (plenary), November 28, 2022; Robert Abela, parliament (plenary), November 29, 2022; Jonathan Attard, Parliamentary Committee, June 24, 2023).

The references above by the main legislative actors are clear and make pro-life declarations. Unfortunately, we were originally presented with a proposal which would have covered the above while leaving the way open for that which would hardly have been pro-life, in a clear case of inconsistency between government intent and government proposal.

Through the actions of the opposition, as well as pro-life civil society groups, the government was pressured to acknowledge that its original text was not fit for its own declared purposes. 

Pro-life individuals and groups will now hold elected representatives to account as to their affirmations for life and against abortion

As Fearne stressed in his initial intervention on the draft bill, the government was willing to take genuine suggestions on board. The government indeed did so, and what became law is satisfactory in ensuring that no illicit abortions are legitimised.

In the end, what we have defined at law is a justification that could only apply upon an investigation or in a judicial setting.

To ensure accountability and justify their actions, medical professionals need both to have evidence of their decision process and to ensure that they possess the knowledge of, and properly apply, current medical practices in a pro-life manner. If doubt prevails during an investigation, then it would most probably lead to criminal prosecution.

If an investigator is convinced that the requisites of this law are satisfied, that could be the end of it. However, any person who made a criminal complaint, or provided relevant information to the police about an alleged offence, could file so-called challenge proceedings according to art. 541 of the Criminal Code. If that person proves to the court that their allegations are prima facie justified, then that court would order the institution of proceedings against the alleged offender.

Such is no different from the previously prevailing legal situation. However, what now needs to be proven is clearly defined and less open to judicial interpretations which could widen the possibilities for the defence of an abortion, justifying such with some legal or medical argument. If such criminal proceedings are now initiated, then this law becomes a plea to be raised by the accused against a charge under art. 241(2) and 243 of the Criminal Code.

What was a possible celebration of the culture of death, with real potential for its legitimisation, has turned into a major pro-life victory in the legal field.

Pro-life individuals and groups will now build on this national consensus and hold elected representatives to account as to their affirmations for life and against abortion.

Work must continue within the medical profession, and in society in general, to ensure that no woman is abandoned in circumstances in which she could possibly consider an abortion.

Jean Karl Soler is a medical doctor and researcher. Edric Micallef Figallo is a lawyer and president of the Moviment Azzjoni Soċjali.