The policy paper drafted and launched by the Law Students’ Association makes sad reading. It was drafted on the advice of prominent pro-choice activists. No consultation was done with Life Network or any pro-life NGO. Nor does it appear that a paper on such a controversial subject was approved by the general conference of the association.
Every student association of course has a right to express its opinion in total freedom. That is the basis of our democracy. However, it is sad to note that the report seems to have first come to a pro-abortion conclusion and then, with the help of pro-abortion activists, tried to justify such a conclusion.
Few legal arguments were put forward, except for an analysis of the laws and practices of several countries which have already introduced abortion in their territories. The point remains: is abortion a fundamental human right? No, it is not.
The report quotes the Human Rights Commissioner of the Council of Europe lamenting the fact that Maltese laws do not admit the right of women to terminate their pregnancy. What the report conveniently fails to state is that the European Court of Human Rights in Strasbourg, the foremost human rights organ in the Council of Europe, has, till now, never recognised a right to abortion as part of the right to privacy.
Its position is similar to that of the US Supreme Court prior to the notorious Roe vs Wade judgment in 1973, namely that every state is allowed to regulate the matter within its own legal system. The Strasbourg court has not struck down abortion laws; but neither has it ruled that member states of the Council of Europe have to introduce them. Is the Human Rights Commissioner now above the apex human rights court in Strasbourg?
But what perturbed me even further is the selective process in quoting legal sources and case law of foreign countries that recognise such right and ignoring our own case law. References are made to the legal positions in Brazil and Argentina but strangely enough the report, which is supposed to be an unbiased one on the abortion issue, omits any reference to the Persiano case.
Is abortion a fundamental human right? No, it is not
This 2000 case decided by a Maltese court of law expressly recognised the rights of the unborn to the extent of blocking the deportation of a pregnant Moroccan woman from Malta, for such deportation would entail the deportation of a potential Maltese citizen since the father was a Maltese citizen. Besides, deporting the unmarried mother to Morocco, according to the court, would have led to a situation where family pressure would have constrained the woman to perform an abortion.
If the case law within United States, Brazil and Argentina were pertinent to the report, was not the Maltese case of Persiano even more so? Why was it omitted? The answer is simple: the association relied on the biased advice of pro-choice activists. Had they consulted Life Network they would have had a different answer.
But the main flaw in the report, so hastily launched on Christmas Eve, is the dearth of a link between the proposals and the previous pages of the report; or an in-depth analysis of the meaning of “person” in the Maltese Constitution. The report again predictably refers to the “religion clause” in the Constitution, knowing full well that such article has never obstructed any government from enacting laws not consonant with Catholic teaching.
But the reference was made to introduce a religious dimension to the matter, namely that the prohibition of abortion is only an example of subservience to a religion, as if people without any religious belief cannot reach, through reason, the conclusion that an unborn person is a human being and not only a potential one; and that even if he were a potential one, that is no reason to justify his elimination. Abortion is wrong not because the Catholic Church prohibits it but the Catholic Church prohibits it because it is wrong.
The report is full of moral and medical assertions but the contents lack proper legal foundation. The European Union has not forced any member state to introduce abortion or euthanasia; these are matters which are exclusively in the hands of the member states according to the principle of subsidiarity. The Council of Europe has left member states free to decide for themselves. So there is no legal basis for considering abortion as a right. This should have been the report’s conclusion.
Having said this, the association should initiate a real, civilised and consultative dialogue with pro-life NGOs to retain credibility on this matter and show that it is open to several views on this subject matter.
Tonio Borg, former European Commissioner