Abortion referendum is undesirable but practical way forward

President Myriam Spiteri Debono has expressed her belief that if abortion should be legalised it should be done after a referendum.

She even cautioned that it should not be “snuck through” an electoral manifesto.

The points raised by the President merit discussion.

This leader believes that a civil right like abortion, which impacts the individual concerned and nobody else, is best introduced through the parliamentary process rather than a referendum. This would allow for a carefully studied Bill to be debated and dissected at committee stage with possible input from stakeholders.

However, this leader is also conscious of the polarising nature of the abortion debate and the acrimony it fosters among those in favour or against. Indeed, even if a political party does list abortion in its electoral manifesto, this does not mean its supporters fully endorse that position. These circumstances militate in favour of a referendum.

When in late 2022, government put forward Bill 28 to amend Malta’s draconian anti-abortion law it could do so despite not having an electoral mandate, because it was a response to an emergency situation that arose several months earlier. No one should expect the government to wait for the outcome of a referendum to address an emergency situation.

Bill 28 was simply amending the Criminal Code to allow the termination of a pregnancy in circumstances where the woman’s life or health is in danger. The final version approved by parliament last year after government back tracked was even meeker, since the health aspect was dropped.

In essence, Bill 28 did not change the criminal nature of abortion but simply codified at law what doctors had long practiced. Abortion remains illegal and punishable with up to four years in prison.

However, the changes introduced last year are unlikely to be the last time abortion will resurface on the national agenda. Hundreds of women every year are performing abortions, either at home by using pills received from abroad or travelling to abortion clinics overseas. Abortion is a reality that is happening in the shadows. The illegality of abortion makes an already hard experience even harder because these women are scared to seek medical or psychological assistance if they require it.

Malta remains the only EU country with such a draconian set up despite last year’s amendments. This situation is no longer tenable.

This leader believes abortion should be legalised – removed from the Criminal Code with legal provisions laying out the parameters for an abortion introduced in the Health Act. Women should have the right to bodily autonomy. They should be able to make decisions about their life, health and pregnancy without the threat of criminal action hanging over their heads.

We also believe that seeking an electoral mandate for the introduction of abortion will give a political party the moral strength to put forward legislation and drive the debate forward.

However, the question remains whether the final step should be subjected to a referendum. Unfortunately, given the sensitivity of the issue at hand and the deep ethical difficulties it creates, a referendum could be the practical way forward to overcome any internal hesitations MPs may have. It also gives society the chance to express itself outside the confines of partisan considerations.

This is how abortion was introduced in several European countries, not least Ireland (2018), San Marino (2021) and Portugal (2007). In Portugal, the abortion referendum was an electoral pledge by the ruling Socialist Party of the time.

Neighbouring Italy adopted a different route and introduced abortion in the 1970s through a parliamentary resolution. Once abortion became law, opponents forced an abrogative referendum to try and cancel the law. However, the referendum attempt failed since Italians overwhelmingly (68%) rejected a return to an outright ban, leaving the law legalising abortion intact.

Just as Malta introduced divorce in 2011 after a referendum, the same can happen with abortion. But this leader is sceptical of Prime Minister Robert Abela’s view that politicians should take a step back. At the end of the day, it is our MPs who will be passing any legislation in parliament – even if a referendum takes place – and so they cannot stay silent. They are expected to participate in the debate, even if they choose not to be its drivers.