Post-SCOTUS: Is Malta’s abortion ban stronger or weaker?

Four reflections on whether the Supreme Court decision on Roe v Wade could have some impact on Malta, the only country in the EU with a total abortion ban

The overturning of Roe v Wade triggered abortion bans in at least 13 American states, emboldening anti-abortionists globally. But the indignation of world leaders – Johnson, Macron and Trudeau among them – strengthens the call to recognise abortion as a fundamental right in the EU.

The realisation that abortion rights can be rolled back has strengthened calls to enshrine reproductive rights in the EU’s charter. Resisting the global fightback for abortion rights may pose difficulties for a government which prides itself on its progressivism

Back in 1973 the Supreme Court’s (SCOTUS) decision in the Roe vs. Wade case effectively recognised abortion as a constitutional right, which could not be overruled by individual states in the union. This created a degree of equality in access to healthcare between women living in different states. By reversing this decision, a conservative majority in the Supreme Court strengthened by appointments made by Donald Trump has upheld the right of individual states to ban or limit abortion. One may say that the EU is not so different than the US, because Malta was still allowed in the club despite a total ban on abortion; while others like Poland have limited abortion to pregnancies resulting from criminal acts and to cases where the mother’s life or health is at risk.

But the European Union is not a fully blown federation like the USA, and only regulates matters covered by treaties, which presently do not refer to access to reproductive rights in its member states. Malta even included a protocol in its accession treaty stating that “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”.

But in the current international climate, momentum is growing for recognising abortion as a fundamental right of all EU citizens, something supported by major European political families like the Greens, the left, socialists and liberals. And Malta’s position is rendered more precarious by a law which is even more draconian than the bans triggered by the SCOTUS, which at the very least make an exception when the life of the mother is at risk.

Addressing the European Parliament in January, French President Emmanuel Macron said the right to abortion should be added to the EU Charter of Fundamental Rights, a call supported by the centrist Renew group, and left-wing groups. Macron also intends to raise the issue in the European Council. Currently Malta and Poland can still block any such move, although the unanimity requirement which paralyses EU action on so many issues, may still be one of the casualties of the impending reform of EU structures rendered urgent by the Russian threat.

And it would be embarrassing for a Labour administration, which prides itself on its track record on civil liberties, to ally itself with ultra conservatives in Poland to oppose abortion rights. What is sure is that political pressure on Malta to align itself to the European mainstream is bound to pile up in the next months. The reputational fallout may well be too much a price to pay for a government whose political allies in Europe support abortion rights.

The SCOTUS decision has emboldened conservatives in the PN who feel less alone in the world in their opposition to abortion. But the reaction within the European Union may have the opposite effect

Former PN leader Adrian Delia was quick to praise the decision of the Supreme Court to strike down the constitutional right to abortion, describing it, in somewhat hackneyed terms, as “an historic decision” where “in the land of the free, life has prevailed.”

During his tenure, the party turned abortion as its main battlecry in MEP elections in 2019 but failed to make any inroads. Such positions risk further alienating liberals increasingly feeling estranged and left out from the PN. While the party is bound by its statute to defend life from conception, it cannot ignore the growing sociological rift between two blocs of its voters: namely that between conservative grassroot activists and a cohort of younger, educated and continentally-minded voters whose first memories of the PN was that of the EU referendum campaign.

The images of civil society protests against abortion bans in the US is also bound to capture the imagination of the growing segment of Maltese who identify as global citizens. The frustrations of this cohort were expressed by the party’s policy research president Martina Caruana who denounced Malta’s abortion laws as “sadistic and primitive” as she criticised MPs for staying silent about the case of US tourist Andrea Prudente.

Bernard Grech’s constant balancing acts, U-turns, and inability to move the party forward, is further exasperating these voters. At the same time, timid attempts by Grech to open the party to social liberals have backfired, alienating conservatives who feel that the party is distancing itself from its roots. In short, the PN has to decide on whether to become a mainstream centrist party where liberals can feel at home or to create a home for conservatives including traditional Labour voters, many of who resent the same European values, which the PN prides itself on.

Surely Delia’s message stands out for clarity but this comes at a cost for a big tent party, which is condemned by the electoral system to incorporate within it a vast spectrum of voters. All this is happening in a context where, in a bid to gain legitimacy even far-right leaders like Giorgia Meloni and Marine Le Pen have committed themselves not to overturn their respective country’s abortion laws, despite harbouring anti-abortion activists in the past and using regional power to erode abortion rights.

As a representative of the EU institutions Roberta Metsola could not but criticize the Supreme Court decision as a backward step for women’s rights. But she can’t forget that her words have implications in a country with even harsher laws than in the US states now banning abortion

As an MEP Roberta Metsola had a track record of consistently voting against largely symbolic references to abortion rights in resolutions discussed by the European parliament. But to secure the prestigious role of EU president and crucial support of the Renew group alongside that of the socialists, Metsola had pledged to sign the Simone Veil pact that guarantees women’s access to abortion and contraceptives in the EU. Following the SCOTUS decision Metsola tweeted her concern on “the regression of women’s rights in the US, and in other places around the globe” while pledging that “the European Parliament will keep standing up for women, equality and liberty.”

But this relatively timid tweet inevitably invited comparisons between Malta and the “regression of women’s rights in the USA” with former PN candidate Emma Portelli Bonnici, replying: “and yet, Malta has the most restrictive abortion laws in the EU and in most of the world, criminalising it in all instances and having no derogation to save the life of the pregnant person, or for cases of rape or incest... Don’t forget about us,” she tweeted. For by describing the SCOTUS decision as regressive, Metsola was also confirming how retrograde Malta’s laws are.

And while Metsola is bound to represent the views of the parliament which elected her, she will also have to do the same whenever parliament expresses concern on Malta’s abortion ban. Surely Metsola is behaving correctly, but she can’t expect people to distinguish between her views and those of the European institutions she now incarnates.

Even the PN piggy-backs on Metsola’s popularity without also acknowledging that its exponents in Europe can only climb the institutional ladder by ‘compromising’ on issues like abortion. One may be appalled by the dissonance between past and present stances on this issue, but the experience of working in EU institutions where abortion rights are taken for granted, may well be a learning curve for aspiring Maltese leaders.

Labour’s grassroots are often at a loss on an issue where the party had deliberately chosen to take a step back, waiting for civil society to take the lead, but the party can’t keep running with the hares and hunting with the hounds on this issue. In the end Abela has to decide

As the harbinger of the social reforms introduced in the past century, Labour inevitably carries the abortion chalice with trepidation. The deafening silence of all Labour MPs except Rosianne Cutajar on the Prudente case, stands testimony to an existential crisis in a party which also harbours within it a dormant, conservative, albeit not necessarily clerical element. For even in Labour’s heartlands, waning clerical influence has not been matched by the rise of feminist values.

Moreover in the past decades, the party had little choice other than to represent the prevailing anti-abortion sentiment of its electorate while leaving a window open for those who see the party as the best bet for change in this matter. While pro-choice declarations by MEPs like Cyrus Engerer and Alfred Sant embolden liberals in the party, the party’s leadership remains non-committal, reluctant on opening a can of worms which risks creating new tensions in the party.

Like the PN, Labour faces a rift between a growing cohort of voters who aspire to the continental mainstream, and voters whose values are either shaped by patriarchy’s depiction of motherhood as the universal destiny of all women, or simply reflect decades of exposure to propaganda which equates abortion to murder and pro abortionists to baby killers.

But as amply proven by Joseph Muscat’s bold stance on marriage equality, strong leadership can change deeply ingrained values. In this sense Abela stands at the crossroads, fully knowing that opinions on this issue are changing but reluctant on taking any bold step which could alienate more traditional voters. Still, Labour cannot ignore the reality of an increasingly cosmopolitan country whose economy also thrives on the contribution of foreign workers, which include women hailing from countries where abortion is fully legal.

The case of the American couple who ended up being airlifted to Spain by their insurance company to ensure the safety of the mother, also risks raising the alarm bells of pregnant women keen on visiting Malta as tourists. And just as widespread corruption and the murder of Daphne Caruana Galizia threw a spotlight on dirty money passing through the island, Malta also risks incurring reputational damage from its abortion ban, especially in an international context where abortion is once again dominating the news cycle and where it is constantly referenced as the only country in the European Union to prohibit abortion entirely.