Refusing a termination under the 2022 law breached no right

The Civil Court, First Hall, sitting in its constitutional jurisdiction under Madam Justice Miriam Hayman, decided on 1 July 2026 an application brought by a lawyer as special mandatary of a foreign woman, A.P., against the State Advocate, the Minister for Health and the Parliamentary Secretary for Reforms and Equality.

The applicant claimed that articles 241 and 243 of the Criminal Code, which then prohibited termination of pregnancy in every case, had breached her rights under articles 32, 33, 36 and 45 of the Constitution and articles 2, 3, 8 and 14 of the Convention, and asked for damages.

The court found no breach under any head and dismissed the claims with costs.

The facts

The woman and her partner came to Malta on holiday in 2022 when she was in the early weeks of a planned pregnancy. She began to bleed, was treated in Gozo and then referred to Mater Dei Hospital, where the membranes had ruptured and there was no amniotic fluid around the foetus.

The foetal heart was still beating and the prognosis for the pregnancy was poor. The doctors would not intervene to end the pregnancy while there was a heartbeat, because the law then forbade it, and said they would act if sepsis set in.

She feared infection and death. Her insurer arranged an air ambulance to Spain, where the pregnancy was terminated. She then sued in Malta.

What the court held

On the right to life under article 33 of the Constitution and article 2 of the Convention, the court went through the medical file and found that she received care «par excellence imma mhux dik mixtieqa minnha» [of the first order, but not the care she wanted]. The consultant testified that the team stood ready to intervene at the onset of sepsis, which she never had.

Once rested she had no fever, no infection and no bleeding, and was well enough to fly. The court holds: «Il-fatt li t-tobba kienu lesti jagħtu ċans lit-tarbija, anke jekk kien wieħed minimu, sakemm il-ħajja tal-omm ma kenetx f'perikolu imminenti ma jwassalx għal ksur» [the fact that the doctors were willing to give the baby a chance, even a minimal one, so long as the mother's life was not in imminent danger, does not amount to a breach].

The later amendment that now permits termination where there is a serious and immediate risk to the mother's life was not in force at the time, and its enactment is no admission that the State had been in breach. Deaths said to have occurred in Malta for want of such a law were hypothetical: no case was produced.

On article 36 and article 3, ill-treatment must reach a minimum level of severity. The court sets the applicant's anxiety against A, B and C v. Ireland (Grand Chamber, 16 December 2010), M.L. v. Poland (14 December 2023) and A.R. v. Poland (13 November 2025), where travelling abroad for an abortion was found arduous but below the threshold, and against S.F.K. v. Russia (11 January 2023), where a forced abortion crossed it.

Her distress was real but normal and inevitable in the circumstances, fed by online research and by advice from those who favoured termination, and no humiliation or cruelty was shown.

On article 8, a prohibition of abortion can interfere with private life, but article 8 confers no right to abortion and the right is not absolute. There is no European consensus on the status of the unborn, so the State enjoys a wide margin of appreciation; the protection of unborn life in Malta is the legitimate aim of the impugned articles and is tied to the country's moral convictions.

The law was clear before she travelled, so the interference was in accordance with law, and she did not prove that her life was in danger.

On article 45 and article 14, the court distinguishes the stand-alone constitutional guarantee from the Convention right, which can only be invoked with another right. Both fail for the same reason: the prohibition applied across the board to every woman in Malta, no woman in her position was treated differently, and a discrimination claim needs a like-with-like comparison that the evidence did not supply.

Why it matters

A constitutional claim against the abortion articles as they stood before the amendment needs proof that the mother's life was in imminent danger, and the medical file will decide that, not the patient's fear. Article 3 claims built on anxiety alone will fail against the Strasbourg threshold, and a gender-discrimination claim needs a comparator who was treated differently. The judgment also notes that the amended law now covers the serious and immediate risk that this applicant said she faced.

Where it sits

The case applies the positive obligations under the right to life, the severity threshold under article 3 as stated in A, B and C v. Ireland and restated in M.L. v. Poland and A.R. v. Poland, the article 8(2) tests of legality, legitimate aim and necessity with the margin of appreciation recognised in A, B and C v. Ireland, and the accessory nature of article 14 against the free-standing article 45 of the Constitution.

The judgment names no Maltese authority; on the domestic articles it decides on their text alone.

Source

Civil Court, First Hall (Constitutional Jurisdiction), 499/2022, 1 July 2026: 499/2022