Issue link: https://maltatoday.uberflip.com/i/955503
10 maltatoday SUNDAY 18 MARCH 2018 Analysis THE first ripples in the abortion debate were created by isolated left-wing and feminist voices both within and outside the Labour Par- ty in the late 1970s. But pro-choice arguments in Malta have always drowned under the weight of the near unanimous popular consen- sus against abortion. Malta defied the liberalisation trend in southern European countries like Italy and post-Francoist Spain in the 1980s. Instead, Malta evaded the issue by benefitting from the safety valve offered to Maltese women through the availability of safe and legal abortion in the UK, at least for those who can afford to pay. For while the abortion debate in Eu- rope and elsewhere was informed by the crude reality of the risks posed by dangerous back-street abortions that left thousands of women butchered, Malta could ex- port its problems while clinging to its firm pro-life stance. The first scare: EU membership It was EU membership in the ear- ly 2000s which first raised alarm among conservatives of a 'gateway' to abortion, even if these fears were allayed by the fact that a social con- servative like Eddie Fenech Adami was firmly at the helm. To pre-empt any debate on this issue, the Nationalist Party went as far as annexing a protocol to the EU membership treaty to ensure that in any case of possible conflict between EU law and Maltese law or jurisprudence on the issue of abor- tion, Maltese law would prevail. Curiously it was a poster on the Labour party's Naxxar club, which warned that the European Union "believes" in abortion, euthanasia, and same-sex marriage. The poster was immediately removed after protests by the Malta Gay rights movement but it was a very reveal- ing aspect on the ideological topsy- turvy word of Maltese politics. Ultimately EU membership won the day in what was the last in- stance where the PN managed to project itself as a broad church which included both liberals and conservatives united by an all-en- compassing battle-cry. Yet after taking Malta in the Eu- ropean Union, and now in desper- ate need of a new identity, the new PN leadership under Lawrence Gonzi toyed with moral conserva- tism as its new flagship. The first shots were fired against Alternattiva Demokratika before the 2004 MEP elections, which were targeted over their inter- national ties with the pro-choice Greens. The campaign backfired only because AD played the victim of big bully tactics by reaffirming its anti-abortion stance. In subsequent years the con- servative faction in the PN led by newly-elected deputy leader To- nio Borg felt an urgent need to kill any further debate on this issue, by going as far as writing to all civil society organisations – including band clubs and bowling (bocci) associations – to support the con- stitutional entrenchment of the criminal laws against abortion. The climate reigning in the coun- try at the time was summed up by rebel Dominican priest Mark Montebello as a way to flag Mal- tese independence from Europe. "Abortion is being used to mark our freedom from Europe. Why not make a monument for abor- tion? It's as if we have been invited to a party where all guests are liber- als but as a fetish we wear a swas- tika badge. Abortion has become the new fetish of Maltese conserva- tives." Fr Peter Serracino Inglott, who was closer to the PN establish- ment, was also skeptical, noting that the only point of the consti- tutional entrenchment was "to en- sure that a future government will not be able to introduce abortion easily", something he described as "a lack of confidence in the demo- cratic process". Tonio Borg's proposal even earned the rebuke of former EU commissioner Emma Bonino who described the idea of entrenching abortion in the Constitution as "bi- zarre". The opposition to the proposal among liberals, including PN- leaning ones, prompted Tonio Borg to dub them the "liberal elite", a derogatory term coined by US Republicans to rail against the educated and open-minded middle-class. Ultimately it was Alfred Sant's unwillingness to engage in the de- bate that ultimately killed Borg's proposal, which required a two- thirds majority in parliament to pass. But at that stage, rather than de- fending women's right to choose, the reaction of most liberals was to insist that abortion was not even an issue in Malta. Since nobody except fringe characters like men's rights advocate Emmy Bezzina and foreign campaigners like Dutch medic and women's rights activist Rebecca Gomperts, were propos- ing legal abortion in Malta. There was no need to discuss the issue, let alone entrench the ban in the Constitution. Yet the attempt to entrench the abortion ban in the Constitution had a lasting legacy, with the emer- gence of an organised and militant pro-life movement, in the shape of Gift of Life. Perversely the organisation which dedicated itself to hounding politicians for any sign of tolerance towards reproductive rights, be- trayed signs of nervousness at not having a direct adversary to face in the shape of pro-choice move- ment. The next chapter in the abortion debate was opened by the wave of liberal reforms unleashed by the divorce referendum and subse- quently by the introduction of civil unions under the newly-elected Labour government. The post-divorce chapter Seven years after the introduc- tion of divorce Malta had over- taken most European countries, including Italy – which introduced abortion in 1979 – when it came to gay rights. But is still one of six countries which refuse abortion to women under any circumstances, even if it's to save the woman's life. The only countries alongside Malta are El Salvador, the Vatican, Chile, the Dominican Republic, and Nicaragua. Yet the liberalisation of mores and the inability of the once all- powerful church to turn the tide after the divorce referendum, prompted conservatives to ask whether abortion will be the next taboo to be broken. Further confounding the issue was the attempt by conservative elements to link abortion to parallel debates on the morning-after pill and IVF. Ironically the in- troduction of the morning-after pill which was intro- duced on the basis of scientific evidence showing that it is not abortive, may have further delayed any urgency in debating abortion, by providing yet another alternative to women faced with an unwanted potential preg- nancy. The hysterical opposition to the morning-after pill betrayed an ease amongst conservatives at seeing women taking more control over their sexuality, which under- lies the whole debate on reproduc- tive rights. Much more thorny for govern- ment could be the still ongoing de- bate on embryo freezing where the link with abortion may be less ten- uous, at least for those who believe that life starts from conception. Yet on this issue such concerns may well be neutralised by sympa- thy for childless couples that may benefit from a reform of the strict parameters set by the Embryo pro- tection act. Another taboo broken It is in this political atmosphere marked by liberalisation of mores, that the fourth chapter in the abor- tion debate has been ushered in by a clear demand by the Women's Rights' Foundation for legal abor- tion through the public health system under at least four circum- stances that include if the pregnan- cy is endangering the woman's life and if it was the result of rape. Ironically this may have fulfilled the Gift of Life fantasy of having an adversary to engage and op- pose, thus giving credence to their claim that abortion is an imminent threat. Nobody can now rebut Gift of Life by saying that abortion is not even an issue because nobody is proposing it. Yet it also threatens to bring out the worms out of the conservative woodwork, whose extremism may actually legitimise the women's groups' demands. In fact the latest MaltaToday survey already shows that while 83% oppose abortion on demand, a relative majority of 45% agrees with abortion in cases where the mother's life is endangered. Coupled to this could be a spillover from the Irish referendum, which could further isolate Malta from the European mainstream. Opposing abortion in such a circumstance could expose the ir- rationality of those who oppose abortion in all circumstances. Still less than one in five agree with legal abortion in cases of rape, a statistic that speaks volumes on how abortion remains a no-go area for most Maltese. Malta's abortion debate Ticking the next progressive box Malta's abortion debate has evolved from an attempt to impose its prohibition on future generations after EU membership, to last week's demand by the Women's Rights Foundation to make abortion legal in limited circumstance Topsy-turvy world of ideology: in the run-up to EU membership, a Labour Party club warns that EU membership would bring abortion, euthanasia and same- sex marriages. Right: an information leaflet from the Malta-EU Information Centre informs the public that Malta will obtain a guarantee that the EU will not introduce abortion to Malta Protecting the unborn child Abortion • A Protocol on abortion will be annexed to Malta's Treaty. • It gives legal certainty that EU law, present or future, cannot change Maltese law on abortion. In Malta, a major concern over EU membership related to the sensitive issue of the legalisation of abortion. Abortion is illegal in Malta and punishable at law under Section 241-243A of the Criminal Code. On its part, the EU has no laws on the legalisa- tion of abortion. Nor does it have any competence to make such laws. This means that a country that joins the EU is not required to legalise abortion as an obligation of membership. However, the fact that all EU countries, except for Ireland, have already legalised abortion gave cause for concern that the EU might indeed call upon its members to legalise abortion at some point in future. This concern was fuelled by the interven- tion of the European Parliament which, from time to time, enters the debate by adopting resolutions calling for the legalisation of abortion. Although not legally binding, these resolutions imply political pressure. During the course of negotiations, Malta therefore sought to address these concerns by seeking a clear legal arrangement that guarantees Malta's position on abortion, both now and in future. In other words, Malta wanted an arrangement that con- firms that if it joins the EU, it would not be obliged to legalise abortion, whether now or in future. An agreement was finally reached on a Protocol on Abortion. This protocol will be attached to Malta's Accession Treaty. A Protocol is a legally binding instrument that is enforceable in a court of law, including the European Court of Justice. The word- ing of this Protocol clearly ensures that in any case of possible conflict between EU law and Maltese law or jurisprudence on the issue of abortion, Maltese law will prevail. The text of the Protocol is the following: Outcome of negotiations on the Protocol on Abortion By Dr Simon Busuttil, MIC Head A©©ornat Special Edition No 21 February 2003 Published by the Malta-EU Information Centre "Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in the territory of Malta of national legislation relating to abortion." Labour will probably bank on being seen by liberals as the least conservative of the two parties by coming across as the party which is against abortion but open to debate on it