Quiet revolution: why Malta’s timid abortion reform could take it the Irish way

Ireland and Malta share a common history as staunchly Catholic former colonies of Protestant Great Britain, where a ban on abortion stood as a mark of exceptionalism as the rest of western Europe legalised abortion during the first 12 weeks of any pregnancy.

Still, even before the Irish referendum in 2018, Malta was the only EU member state to ban abortion in cases where the mother’s life is at risk. But along with Malta, Ireland was the only EU country to ban abortion in cases of rape, incest or fetal abnormality. This will remain the case even if the amendment currently being discussed in the Maltese parliament, is approved.

But unlike in Malta, the Irish abortion ban was also entrenched in its constitution. It was this constitutional provision, known as the Eighth Amendment, approved in a referendum held in 1983, which obliged Ireland to hold referenda to request that ban to be watered down and ultimately ditch it, paving the way for a law permitting abortion on demand during the early weeks of pregnancy.

Malta came closest to imposing this kind of ban when in 2005, former Nationalist home affairs minister Tonio Borg toyed with the idea of entrenching the criminal provisions against abortion in the Maltese constitution. But these plans, chiefly supported by the Gift of Life lobby, were scuppered thanks to Labour leader Alfred Sant’s refusal to take the bait (he never supported the petition) as well as unease amongst liberals in the Nationalist Party itself.

Another notable difference is that the Irish ban had already been modified in 1992 and 2002 to allow abortion in cases where the life (but not the health of the mother) is threatened and where the mother is suicidal.

And just as the Andrea Prudente case triggered the government’s amendment to allow the termination of a pregnancy when the life of the mother is in danger, it was real-life medical cases that triggered the reforms which watered down and ultimately overturned Ireland’s abortion ban.

It was the case of a 14-year-old suicidal rape victim, who was initially prevented by the courts from travelling to England to terminate her pregnancy, that led to a court ruling which made a credible threat of suicide a ground for an abortion in Ireland in 1992, a decision which was subsequently confirmed in subsequent referenda.

And the campaign to liberalise abortion gathered momentum in 2012 when Savita Halappanavar died in a Galway hospital after being refused an abortion during a miscarriage, despite having repeatedly asked for a termination but was refused it because there was a foetal heartbeat. This ultimately led to the 2018 referendum in which two-thirds of voters rejected the ban, and the approval of a law which allows abortion on demand during the first 12 weeks of any pregnancy.

Curiously, it is the amendment proposed by the Maltese government which would prevent cases like that of Savita Halappanavar from happening in Malta. Considering that it was this case which triggered the massive shift of opinions in Ireland, the Maltese anti-abortionists may be shooting themselves in the foot by obstructing legislation which ultimately prevents the repetition of a similar case from occurring in Malta.

The curious case of Leo Varadkar

It was former Irish PM and Fine Gael leader Leo Varadkar who was the driving force behind the historic Irish referendum to remove the constitutional ban on abortion in 2019, and the subsequent approval of a liberal abortion law.

This is particularly significant because Varadkar hails from the same political family as the Nationalist Party: the European People’s Party.

Leo Varadkar campaigned for a Yes vote in the abortion referendum that eventually legalised abortion

Varadkar had changed his views on this sensitive issue, evoking parallels with the evolution of Robert Abela’s thoughts on this subject, who had categorically excluded abortion three years ago. But interviewed on Xtra last month, Abela said that since he became Prime Minister around three years ago, he had met several women who underwent an abortion, either by travelling overseas or by ingesting a tablet. “Nowadays I observe the situation from the experiences of those 400 or so women who pass through this procedure every year,” Abela said.

Leo Varadkar also admitted that like many Irish he had experienced a “fundamental shift” in his viewpoint. Pro-life till 2014 he changed his position to advocate making abortion legal in the first 12 weeks. “I still believe in life but I understand that there are circumstances under which pregnancies can’t continue.”

He recalled the time when he was Minister for Health, and said that he came into contact with cases where “rather than [having] doctors make those decisions for the right medical reasons, those cases ended up in our courts”.

“That’s why I’m of the view that the Eighth Amendment harms women,” Varadkar said.

He said that, through campaigning for a repeal of the ban, he was “asking Irish society to bring about a change… that we will trust women, and doctors”. He also referred to the use of abortion pills that are bought online, noting that “abortion before 12 weeks happens every day in Ireland” and that repealing the Eighth would make sure women can “have them safely and under medical supervision”.

The watershed referendum

Although it did not come as a surprise that Ireland voted to repeal the 1983 constitutional ban on abortion, nobody expected that two-thirds of the electorate would back this step.

The scale of victory was reminiscent of Italy’s own abortion referendum in 1981 when 68% rejected the prohibition of abortion, substantially more than the 59% who rejected the prohibition of divorce in 1974.

In Ireland and Italy, what made a big difference was that an abstract moral principle was set against real-life stories and dilemmas faced by women in daily life.

Prime Minister Leo Varadkar himself credited the personal stories of women denied abortions, including their trials of travelling abroad for the procedure, with swaying the public to vote Yes.

“Ireland is a small country and politics are a personal business to a degree that only a small country can afford,” Graham Finlay, a lecturer at the University College Dublin’s School of Politics and International Relations, was quoted as saying by Politico. “That is why the referendum was won by people telling their personal stories, in public or to friends and families.”

Moreover, Irish public opinion was also shaped by harrowing stories of women denied abortion despite having their lives at risk. Images of foetuses and babies were everywhere in Ireland, purportedly begging from lamp-posts and billboards to be spared from what has been called by more than one anti-abortion campaigner a “Holocaust.” Still people were more ready to identify with the dilemmas faced by their daughters, nieces or next-door neighbours.

Moreover, the referendum saw all major political leaders including Fianna Fail leader Michael Martin and Fine Gael leader Leo Varadkar supporting the repeal of the ban while giving a free vote to their MPs and supporters. On the other hand the left-wing Sinn Fein, the greens and Labour actively supported lifting the ban.

An anti-abortion protest in Valletta (Photo: James Bianchi/MaltaToday)

Curiously, a video message from Independent Irish MP Carol Nolan was played out during an anti-abortion protest in Valletta at the start of December. In her message, Nolan urged the crowd to not let Malta go down Ireland’s route. “I urge you in Malta to safeguard the lives of mothers and babies and make sure this legislation does not come into effect.”

Yet by hinting at an abrogative referendum to repeal a timid law safeguarding the life and health of women in rare and exceptional circumstances, it may well be the case that it is the local pro-life movement which is going down Ireland’s route.

READ ALSO: President breaks with tradition and raises abortion concerns during Republic Day address

Ireland’s abortion timeline

1861 – The law

Abortion is first banned in Ireland in 1861 by the Offences Against the Person Act

1983 – The first referendum

The Eighth Amendment to the Republic’s constitution is introduced after a referendum. It “acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”.

1992 – The X case, and another referendum

A 14-year-old suicidal rape victim is initially prevented by the courts from travelling to England to terminate her pregnancy. It is a controversy that will become known as the X Case. The ruling is later overturned by Ireland’s Supreme Court which decreed that a credible threat of suicide is grounds for an abortion in Ireland. This prompted a referendum on three issues.

The Thirteenth Amendment, permitting travel to obtain abortion in another jurisdiction, was approved by 62% to 38%. The Fourteenth Amendment, permitting information about services in other countries, was approved by 60% to 40%. The twelfth amendment proposed that the possibility of suicide was not a sufficient threat to justify an abortion. This was rejected by proposal was put to a referendum on 25 November 1992 but was rejected by 65% of voters.

2002 – A referendum on suicide

Another referendum is held and the people of Ireland are asked if the threat of suicide as a ground for legal abortion should be removed. It is again rejected by voters.

2010 – European Court of Human Rights ruling

After three women take a case against Ireland, the European Court of Human Rights rules the state has failed to provide clarity on the legal availability of abortion in circumstances where the mother’s life is at risk.

2012 – The Savita Halappanavar case

A campaign to liberalise abortion gathers momentum, after Indian woman Savita Halappanavar dies in a Galway hospital after she is refused an abortion during a miscarriage, despite having repeatedly asked for a termination but was refused because there was a foetal heartbeat.

2013 – A new law to protect women

Abortion legislation is again amended to allow terminations under certain conditions – the Protection of Life During Pregnancy Act is signed into law. It legalises abortion when doctors deem that a women’s life is at risk due to medical complications, or at risk of taking her life. This law gives effect to the 1992 Supreme Court ruling that abortion is permitted where the mother’s life, as opposed to her health, is at risk.

2017 – A Citizens’ Assembly makes recommendation

A Citizens’ Assembly votes 64% to 36% in favour of having no restrictions in early pregnancy.

2018 – A historic vote for choice

On 25 May, voters go to the polls, where the ballot asks if they wish to approve the 36th Amendment to Ireland’s constitution – a bill which would repeal the Eighth Amendment, the ban on abortion. Turnout is 64.51%, and the result is just short of two-thirds in favour of ending the country’s ban on abortion: 66.4% yes to 33.6% no. The Yes vote allows the government in Dublin to introduce legislation allowing abortion in the first 12 weeks of pregnancy, and between 12 and 24 weeks in exceptional circumstances. “What we have seen today really is a culmination of a quiet revolution that’s been taking place in Ireland for the past 10 or 20 years,” says Prime Minister Leo Varadkar.