News 14/07/2002

To provide support for abortion facilities overseas is not illegal

Abortion ship will be within the parameters of the ‘law’

By Kurt Sansone

In rushing to declare that anybody organising or helping the Dutch abortion ship Aurora to come to Malta was committing a criminal offence, Maltese authorities have overlooked a landmark decision handed down by the European Court of Human Rights in 1992 on the issue of abortion.

The Court had established that a restraint order imposed by Irish authorities on two Irish clinics that provided information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland, amounted to a breach of freedom of expression as outlined in Article 10 of the Convention of Human Rights.

This means that it is not illegal if a clinic in Malta provides information about abortion services in other countries, or even makes the necessary overseas arrangements for Maltese pregnant women who request such abortions.

Malta has been a party to the European Convention for Human Rights since 1987 and it is also enshrined in the Constitution. Any decision handed down by the European Court has to be embodied in Maltese law.

This may also be the reason why no criminal action was ever taken against former Labour health minister Vincent Moran when weekly newspaper Il-Gens had revealed that the doctor made the initial contacts with Sicilian abortion clinics for Maltese pregnant women, who requested their pregnancy to be terminated.

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The Dutch abortion ship was granted permission last week by Dutch health authorities to set sail once again. The ship, operated by the organisation Women on Waves, aims to visit countries where abortion is illegal to give pregnant women in those countries the chance to perform an abortion on board. If the ship anchors in international waters Maltese authorities will not have jurisdiction on the ship and women who choose to go to the ship will not be committing a criminal offence, even though abortion is illegal in Malta.

However, the decision by the European Court of Human Rights also means that if the Dutch organisation opens up a clinic in Malta to provide counselling including the provision of information about abortion services, it will be doing nothing illegal.

Judgement in the landmark case, Open Door and Dublin Well Women v. Ireland, was delivered on 29 October 1992 and the decision was carried with 15 votes in favour and eight against.

Incidentally, one of the dissenting opinions included in the final decision was that of Maltese Judge Cremona, who argued that the injunction imposed by the Irish authorities was justified because it sought to protect the life of the unborn as outlined in the Irish Constitution.

The case had been brewing since 1986. The two clinics, Open Door and Dublin Well Women provided a broad range of services relating to counselling, marriage, family planning, procreation and health matters. They claimed that abortion or termination of pregnancy could have been one of the options discussed within the said counselling.

If the issue cropped up the clinics provided information about abortion services overseas, namely the UK. The Irish clinics even made the necessary arrangements with the British abortion clinics for the pregnant women.

However, in 1986 the Irish High Court upheld the plea made by the Society for Protection of Unborn Children and decreed that the activities of both clinics were unlawful and an injunction was granted. The Irish Supreme Court turned down the appeal made by the two clinics.

The case eventually made it to the European Court of Human Rights. Open Door and Dublin Well Women argued that the injunction imposed by the Irish courts was an unjustified interference with their right to impart or receive information and thus contrary to Article 10 of the Convention. Three Irish women, clients of the respective clinics also joined the case claiming that their right to receive information was breached by the restriction.

The Irish government maintained that freedom of expression (Article 10) should be interpreted against the right to life as determined in Article 2 of the same Convention.

However, the Court concluded that the restraint imposed on the clinics was disproportionate to the aims pursued and accordingly decreed that the restriction amounted to a breach of the clinics’ right to freedom of expression.