When independent MP Marlene Farrugia presented a private member’s bill proposing the decriminalisation of abortion in Malta, temperatures soared, as vested parties on both sides made the case on why abortion should or should not be legislated.

However, there is a key difference between decriminalisation and legalisation.

Abortion in Malta is legislated by articles 241(1) and 242, which both prohibit anyone from getting an abortion and imposes a penalty on the person who terminates a pregnancy and any person who assists them.

A guilty sentence carries a prison term of anything between 18 months up to three years.

Farrugia’s bill is proposing that these articles be struck off and instead be replaced by a provision imposing 10 years in prison for anyone who carries out a forced or non-consensual abortion.

Effectively, the proposal is not calling for abortion to become legal and carried out in Malta, but that it would no longer impose a prison sentence on those who terminate pregnancies.

Malta is just one of five countries in the world that outlaw abortion in all circumstances, even when a woman’s life is at risk. 

Speaking to Times of Malta, pro-choice activists described the move as a necessary first step in achieving reproductive rights, while pro-life campaigners warned it was a slippery slope to declaring that abortion is not wrong.

“The decriminalisation of abortion means that abortion is no longer seen as a criminal matter and women who have abortions are no longer liable to criminal sanctions like fines or prison sentences. This does not mean abortion is legalised and provisioned,” Doctors for Choice activist Chris Barbara said.

Malta is just one of five countries in the world that outlaw abortion in all circumstances

“It would need to be followed by updates to other laws and policies to ensure abortion is regulated as a health service. These are matters for a future discussion. The question currently in front of parliament is whether abortion should remain a criminal act and whether women who have abortions should face prison.”

Calling the bill a “good starting point”, Barbara said that despite a blanket ban, Maltese women were still seeking abortions and it was creating a “climate of fear”, discouraging women from seeking help when complications occur.

“Decriminalisation would help those women who use abortion pills – and there are hundreds of them each year – to be more open about what they have done and be less reluctant to seek medical help if needed. In this way, decriminalisation will immediately reduce the risks to women and girls who are carrying out their own abortions in Malta.

“As a pro-choice organisation, we of course would like this to be followed by policy and legislative changes to allow the provision of both medical and surgical abortions in Malta, but this can be discussed after abortion is decriminalised.”

Life Network Foundation chair Miriam Sciberras, however, warned that decriminalising the act would clearly lead to abortion.

“It devalues the life of the child in the womb and the embryo from conception. Pregnancies may not always be welcomed, planned or result from ideal situations but the solution is education and support. The aim needs to be in tackling the problem, not eliminating a life,” she said.

“The law is there for a reason. When we declare something is criminal, it makes a statement. We are saying that the killing of a child in the womb is not to be condoned. Just as environmental harm is wrong and carries penalties, so should abortion.”

Sciberras said Malta needed a clear vision of where it’s going if it really wants to prioritise the protection of children in the womb.

“A woman hasn’t been imprisoned for having an abortion in the last 40 years. Having the law doesn’t mean we are throwing women in prison, but it reinforces the illegality of the act and that the wrongdoing should be punished,” she said.

“All of us, the state included, should be supporting women through crisis pregnancies so their priorities can remain on sustaining life. But that being said, if you commit a crime and go to prison, you are still a person worthy of dignity even if you’ve done something wrong.”

Has decriminalisation always led to legalisation? 

There is some precedent to the idea. In a position paper published last year, which also called for the decriminalisation of abortion, the Malta Law Students’ Society highlighted how a number of jurisdictions changed their abortion laws.

Abortion was decriminalised in Canada in 1969 and made permissible only if the pregnancy posed a risk to the mother’s life. However, the Canadian Supreme Court struck down the law in 1988, declaring it unconstitutional, finding it violated a woman’s right to life, liberty and security of the person.

Abortion is provided in Canada through the Canada Health Act, which ensures that services are provided in all its provinces and territories.

In Belgium, abortion had been illegal since 1867 and was partially decriminalised in 1990, where women can access abortion under a monitored programme. Abortions can be obtained up to 12 weeks in the pregnancy following counselling. Later abortions are only permitted when the mother’s life is at risk. King Baudouin I, who refused to endorse the legislation, had to abdicate for 24 hours for the proposal to be approved by the government.

Termination of pregnancy that is carried out outside of this framework will result in the prosecution of the pregnant woman as well as anyone performing the procedure. Various proposals are currently being heard in Belgium to relax these measures and make the criteria for obtaining an abortion less restrictive.

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