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International Law News

International Law News, Spring 2021

The Recent Abortion Decision of the Polish Constitutional Tribunal

Elizabeth M Zechenter


  • In 1993, Poland enacted one of the most restrictive anti-abortion laws in Europe, which prohibited all abortions, except for three narrowly construed exemptions.
  • On October 20, 2020, the Polish Constitutional Tribunal struck down the main exemption of the 1993 Law, which was used for 98% of all legal abortions in Poland, in effect outlawing all abortions and resulting in massive social protests.
  • This article examines the reasons for the recent Polish Constitutional Tribunal's ruling, its legal validity, and the legal reasoning behind it.
The Recent Abortion Decision of the Polish Constitutional Tribunal
Westend61 via Getty Images

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Almost 30 years ago, Poland regained its freedom from communism and started on a path to modernization and political and economic restructuring. Ironically, various rights and freedoms important to Polish women and children, once taken for granted, either before WWII and even under communism, became subject of slow but steady diminishment, especially during the last five years. In 1993, Poland enacted one of the most restrictive anti-abortion laws in Europe (the 1993 Law), which prohibited all abortions, except for three narrowly construed exemptions. On October 20, 2020, the Polish Constitutional Tribunal (TK) struck down the main exemption of that 1993 Law, which was used for 98% of all legal abortions in Poland, in effect outlawing all abortions and resulting in massive social protests that have been continuing from that date until now.

The article examines the reasons for the recent Polish Constitutional Tribunal’s ruling, its legal validity, and the legal reasoning behind it. Briefly, it addresses few key reasons for the recent legislative initiatives and the legal decisions limiting the rights of Polish women and children.

Poland regained its independence in 1918 and immediately granted the right to vote to all its citizens, women included. The Polish Constitution of 1921 granted women additional rights, including the right to participate in all public affairs without restrictions. In 1932, Polish women became only second in the world to have legal access to abortion. After WWII and the communist take-over, all Polish citizens' rights and freedoms were abridged, and women lost the right to an abortion during the period of Stalin’s regime. Once the Stalinist terror receded in 1956, the communist government restored the legal right to abortion and subsidized many other services essential to women such as healthcare and childcare.

Ironically, Poland who regained its independence from the communism in 1990s and was a celebrated poster child for the victory of democracy, has changed its course and began democratic backsliding, be it with respect to the rule of law, independence of the judiciary, disciplinary proceedings against judges, as well as notably stigmatizing and minimizing services and even human rights protections essential to women (e.g., diminished access to modern contraception, limitations on access to reproductive services and prenatal and postnatal care, lack of treatments for infertility, reduction in childcare options, failure to prosecute rape and domestic violence, ongoing and progressive stigmatization of abortion, to name a few) . Even access to the most basic modern contraceptives is currently one of the lowest in Europe. Since the election of the right-wing nationalist and populist party called Law and Justice Party (PiS) in 2015, the push to subdue the independent judiciary and press, to control education, and to restrict women's rights has intensified.

In 1993, Poland outlawed abortion and enacted one of the most restrictive anti-abortion laws in Europe. This new law (1993 Law) prohibited all abortions, except for three narrowly construed exemptions when: 1) pregnancy creates a threat to the life or health of a pregnant woman; 2) pregnancy is a result of a crime, e.g., rape or incest; or 3) when there is severe and irreversible fetal impairment or an incurable life-threatening disease. Moreover, these exemptions were mostly allowed until the 12th week of pregnancy, limiting access to legal abortion even further.

The 1993 Law has been often referred to as a “compromise law,” but if was a compromise, it was a compromise between the Polish Catholic Church (with uncompromising position on abortion) and the new post-communist governments of the newly independent Poland which had a strong dept of gratitude to the Church for their support of Solidarity movement. As many researchers and commentators observed, the “compromise” did not actually involve Polish women, instead it was a political compromise between two largest and most important political institutions of the time. Hence, despite all the protests by the Polish women, the 1993 Law was enacted.

There are many causes for that conservative shift in Polish politics, one of them being the election of the Polish Pope John Paul II, a profoundly conservative man devoted to the survival of the institution of the Polish Catholic Church under communism, who reinforced Church's pro-natalist ideology, who viewed woman's primary role as that of mother and caregiver, and who pushed for the Concordat with the Polish state. This agreement gave an outsized role to the Catholic Church in a previously secular Polish state.

On October 22, 2020, the Constitutional Tribunal limited to rights of women even further when they invalidated exception No. 3 (allowing for pregnancy termination in cases where the fetus is severely deformed) as unconstitutional. It is important to note that TK was not ruling on the issue of abortion itself; abortion is already outlawed. Instead, the TK struck down a limited exemption allowing for termination of pregnancy if the fetus is gravely ill, bound to die, or has some lethal illness; meaning that women will now have to endure continued pregnancy fully knowing the tragic fate awaiting their fetus and maybe even them.

TK's decision relied on Article 38 of the Polish Constitution which states that "The Republic of Poland shall ensure the legal protection of the life of every human being." That constitutional language of Article 38 resulted from the extensive legislative debate and the drafters of the Constitution explicitly rejected the idea of including fetus in the definition of “human being.” TK chose to re-interpret the agreed on definition of “human being" and included in that definition an unborn fetus. TK cited Article 30 of the Constitution, which affirms the right to "dignity" to any person with TK vesting rights to "dignity" in an unborn fetus and none in the living pregnant women. As the Polish Spokesman for Human Rights, professor Bodnar observed, it is not the women but the fetus, be it only one week old, malformed, or bound-to-die one, who has been deemed by TK to be more important as between the two, and one who has more rights to dignity and to legal protections than a living women who has to suffer the tragedy of forced pregnancy.

TK's reasoning is over-broad for other reasons too: the Polish Constitution provides for the right of privacy and the right to make decisions about one's private life in Article 47 while Article 40 contains a prohibition against torture or being subjected to degrading and inhumane treatment. Article 68 provides for the right of individuals to have their health protected. None of these rights were adequately addressed and TK failed to balance the right of women provided in these Articles versus the rights of a fetus, if any. One of the two dissenting judges remarked that he cannot agree with the majority decisions because forcing pregnancy upon a women who is carrying severe ill fetus with no chance for life, amounts to torture and an inhuman and degrading treatment which is expressly prohibited by the Polish Constitution in Articles 40, 47 and 68. As Judge Kieres observed, TK overreached since moral precepts should not be resolved by criminal sanction and no law should force a person to act heroically.

Equally noticeable is TK’s lack of consideration given to EU treaty obligations binding on Poland and the recent EU jurisprudence with respect to the protection of women's rights in Poland. Poland already lost three legal cases before the European Court of Human Rights (ECHR) which ruled that in all cases Polish women were unlawfully denied whatever limited rights to abortion they have under the existing Polish laws. ECHR also ruled that Poland violated Articles 3 and Article 8 of the European Convention of Human Rights. On November 25, 2020, the European Parliament adopted a resolution (455 pro to 145 against) that condemned the decision by the TK asking Polish government to refrain from any further attempts to restrict women’s reproductive rights and endanger their health . That resolution states that TK’s ruling puts women’s life and health at risk, failing to protect “an inherent and inalienable dignity of women.”

The procedural posture of the TK decision is arguably problematic. TK decision came about at the request of several congresspersons who as members of Poland's supreme legislative body, are in the best position to legislate issues of such social, cultural, and ethical importance, especially in a country which is so deeply divided. Having failed at numerous legislative proposals to outlaw or further restrict the existing rights to abortion, the governing party decided to refer the decision to TK instead, choosing the judiciary to solve the issue for them. The first referral took place in 2017, hence TK waited for three years to deliver its opinion; that 3-year wait period raises concerns about well-documented politization of the current TK and the political genesis of the decision. It is quite telling that the demonstrations are taking place in front of PiS offices and the house of PiS’s leader, not in front of TK, as Poles widely believe that Tk is but the tool of the governing party and not an independent institution.

The current TK is the result of legal reforms initiated by PiS, reforms which are disputed for being in contravention of the EU treaties signed by Poland and subject to many ongoing proceedings before the European Court of Justice and the European Parliament. The composition of the TK court, the existence of the so-called "double judges" (judges appointed by PiS when these seats where already lawfully filled) and the manner of the appointment of the current chief judge are of questionable legality. That is why the Helsinki Foundation for Human Rights has issued an appeal to the Polish medical professionals asking them to ignore the TK decision, as, in their legal analysis, given that the TK is not a properly constituted and three of its judges are unlawfully appointed, the decision itself is also unlawful and should not be followed.

Strikingly, TK's decision keeps referring to a first-trimester abortion in the case of an irrevocably ill and bound-to-die fetus as a form of "eugenics" and called such abortions "eugenic abortions." It is a common practice of the right-wing parties, such as or PiS and the conservative Polish Catholic Church to use such evocative, imprecise, and deeply misleading language (both the Church and TK speak of children and babies instead of fetuses or embryos, women are referred to as mothers and wives, and not as women, individuals, or citizens, and so on).

Under Polish law, the TK decision is not legally binding until it is published in the Official Gazette (Dziennik Ustaw), and the publication, while delayed, took place in January 2021. The TK decision has now the force of law without the need for additional implementing regulations. Under the Polish system, it is a final decision without the possibility of appeal.

Any abortion that is prohibited by law is automatically treated as a criminal offense subject to criminal penalties under Article 152 of the Polish Penal Code (all those who helped a woman to carry out an abortion, her family, friends, and medical professionals, are subject to a three-year jail term. In the event that a woman undergoes self-abortion, but it is subsequently determined that her fetus was "viable," that women are also criminally liable with jail term of eight years.

Polish women's response to the TK's decisions was swift, with mass demonstrations, estimated to be the largest protest since the fall of communism, across the entire country, from major cities to small villages, with hundreds of thousands of women demonstrating daily, which caught the ruling party off guard . PiS did not expect such massive social resistance or such an eloquent and forceful rebuttal of the TK decision. The massive and continued peaceful women protests were met, with progressively violent police response. Women were teargassed, some were beaten up with clubs, many were arrested, others were thrown down the stairs, or otherwise roughed up, either by the Christian right-wing vigilantes or by the police forces themselves. However, it was also reported that in some cities, the police-women threw away their shields and riot gear and joined the demonstrating women and that some policewomen, while continuing to stand in riot formation, chanted, "we are with you sisters." For several months now, mass protests have been taking place all over the country, with hundreds of thousands of women and men participating.

TK decision has been seen by some in Poland as a political payback by PiS to the conservative Polish Church for their support of PiS in the recent narrowly decided elections. The Polish Church itself is in the midst of the child-abuse scandal, and the allegations of the ongoing cover-up of such crimes. Allegations have been made that the cover-up may to go all the way to the Vatican at the time when the Church was under the leadership of the Polish Pope, John Paul II.

It appears that PiS misread the social backlash that TK decisions will cause and is facing massive social unrest. Some PIS politicians have been trying various political and legislative attempts to create a more socially palatable version of the ruling aimed at stopping the ongoing social unrest and continued demonstrations. The protesters and leaders of the Women Strike are refusing any such compromise and are demanding the legal right to abortion and other reproductive services. Among others, Polish women started a new campaign of writing personal letters to the European Court of Human Rights (ECHR) appealing directly for ECHR’s protection.

Polish Catholic Church and its close political ally PiS are not only opposed to abortion under any circumstances, but they are also adamantly opposed to “genderism,” “feminism,” and “LBGT ideology” which they see as a “foreign” and opposed to the traditional Polish values. Any law that promotes equality between sexes, protects LBGT people, or any law that protects women and children from rape or from domestic abuse are seen as expressions of such “genderism.” Following up on government’s earlier pronouncements, the Polish Parliament accepted just last week a new bill titled "Yes to the family, not to gender" which calls for Poland to withdraw from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, the so called Istanbul Convention, signed by Poland as part of its as part of its EU accession. The Istanbul Convention is essential for victims of domestic violence in Poland because it is filing gaps in the inadequate Polish domestic legislation.

And so the women protests continue.