Why the new version of Bill 28 still leaves Maltese women knocking on the doors of death

Bill 28 will be discussed at committee stage in parliament this afternoon in what is expected to be a historic development to Malta’s strict anti-abortion law.

The Bill amends the Criminal Code to allow doctors to terminate a pregnancy if a woman’s life is in danger. It will be introducing for the first time a limited exception at law when abortion is possible.

However, what MPs will be discussing today is a watered-down version of Bill 28 originally proposed in November.

The original Bill 28 was meant to introduce two very limited exceptions to the Criminal Code by which doctors would be allowed to terminate a pregnancy if a woman’s life or health are in danger. Pro-choice activists called this the bare minimum in an otherwise restrictive legal framework.

The development was prompted by a case that happened several months earlier when an American tourist – Andrea Prudente – was denied an abortion while holidaying in Malta. Prudente who was 16 weeks pregnant suffered a ruptured membrane and doctors even told her the pregnancy was no longer viable.

READ ALSO: 'Malta draws you in, only to place you in a position of near death and peril' - Andrea Prudente

However, because the law criminalising abortion makes no exceptions, doctors refused to terminate the pregnancy. Prudente eventually was flown to Spain where she had an abortion, eliminating altogether the risk of her developing sepsis, a life-threatening infection of the blood.

Back in November when the Second Reading stage of Bill 28 started in parliament, Prime Minister Robert Abela and several other Labour MPs made a whole-hearted defence of the proposed amendment, especially the aspect that spoke of protecting women’s health.

The underpinning argument was that Andrea Prudente and women in her predicament should never be allowed to reach a stage where their life is put at risk before doctors could intervene.

But seven months down the line government backtracked on its core principle to protect women’s health, despite the rhetoric saying otherwise. The new wording of Bill 28 will not solve the dilemma created in the Prudente case – consultant obstetrician and gynaecologist Mark Sant has said as much. However, Reforms Parliamentary Secretary Rebecca Buttigieg brushed off these concerns, insisting the changes are a game-changer and will prevent a repeat of the Prudente case.

We looked back at the arguments made in parliament last November by the Prime Minister and Labour MP Malcolm Paul Agius Galea and contrasted them with what the original version of Bill 28 sought to achieve and whether the new version still achieves those aims.

Q&A

When was it said

29 November 2022, during the Second Reading debate on Bill 28

Who said what

Prime Minister Robert Abela had said government would not back down on the health principle included in the original wording of Bill 28 but has now qualified this as a condition that 'may lead to death'

Robert Abela: “They [doctors] knew that they could only intervene if her [Andrea Prudente] life was at risk and this happened because the law did not give them legal certainty… We cannot allow a situation where doctors put a woman’s life at risk.”

Labour MP Malcolm Agius Galea had argued that as a doctor it troubled him what to tell a father who is seeing his daughter approaching the point of risking her life because the law did not allow him to intervene

Malcolm Paul Agius Galea: “If she [Prudente] arrived at a point where her life was at risk they [doctors] would have intervened, but she would have asked us why we allowed her to arrive at the doors of death to intervene… As a doctor, what would I tell a father seeing his daughter approaching the point where she is risking her life because the law does not allow me to intervene? This proposed law will allow doctors to take the decision to intervene to save a life before the situation deteriorates further.”

What did the Prime Minister and Agius Galea mean?

Despite Andrea Prudente’s pregnancy being no longer viable doctors refused an abortion. At that point, Andrea’s life was not in danger but she ran the big risk of developing sepsis (a blood infection) or haemorrhaging, which would have then put her life at risk. The Prime Minister and Agius Galea, who is a doctor, were concerned that a woman in Andrea’s state would be allowed to reach the doors of death before doctors could intervene to save her life under the unchanged legal regime. And even in the case where her life was in danger, doctors did not have legal comfort because the law allowed no exceptions.

Did the original Bill 28 address this?

To some extent it did. The Bill introduced two exceptions to the law and allowed doctors to terminate a pregnancy if a woman’s life was at risk or her health in “grave jeopardy”. Robert Abela had described life and health as the two principles underpinning the amendment, even pledging not to back down on the health aspect.

Doctors could have interpreted Andrea’s failed pregnancy as one that was putting her health in grave jeopardy even though at that point her life was not at risk. The decision on how to interpret grave jeopardy would have been heavily conditioned by the fact that abortion would still remain illegal but it allowed the possibility for a doctor to argue that an abortion made medical sense in cases like Andrea’s to protect her health.

Health Minister Chris Fearne and Justice Minister Jonathan Attard presenting the watered down version of Bill 28

Does the amended Bill 28 change this state of affairs?

Most definitely it does. By qualifying “grave jeopardy” as a condition that “may lead to death”, the margin of interpretation given to doctors has been restricted. Under the new Bill, a woman in Andrea’s condition would have to develop sepsis, which is a life-threatening infection, before doctors can decide to terminate the pregnancy. Gynaecologist Mark Sant told The Sunday Times of Malta the new Bill is “regressive” and would not have made any difference in the case of Andrea Prudente.

Does the new Bill 28 solve the dilemma posed by the Prime Minister and Agius Galea in November?

No. Doctors will still have to put a woman’s life at risk before intervening. In Agius Galea’s own words, the woman would still be asking us why we allowed her to arrive at the doors of death to intervene. The new law only gives doctors legal certainty that the decision to terminate a pregnancy enjoys legal backing. The law placates doctors’ concerns but leaves women like Andrea in a state of risk.

READ ALSO: George Vella’s no to abortion Bill forced government’s hand