On 22 October 2020, the Polish Constitutional Tribunal held it was unconstitutional for a women to access abortion in cases where there was ‘a medical indication that there existed a high risk that the foetus would suffer severe and irreversible impairment or an incurable illness that could threaten its life’ (Article 4a para 1 (2) of the Act for Family Planning and the Protection of the Foetus (1993)). Given that in 2019, out of 1100 official abortions, 1074 were performed on the basis of foetal abnormality, the judgment amounts to be a de facto ban on abortions in Poland. The law does still – at least on paper – allow abortions in cases where: a) the woman’s life or health is at risk; or b) the pregnancy is a result of rape or incest.
The Constitutional Tribunal agreed with the applicants – a group of 119 Conservative MPs – that Art. 4a para 1 (2) legalised ‘eugenic practices in relation to the unborn child’, consequently violating the Art. 38, the legal protection of every person’s life in connection with Art. 30, respect for and protection of human dignity and Art. 31 para 3, the principle of proportionality in of the Polish Constitution 1997.
The judgment is a perfect and perverse illustration of the decline of what was formerly the highest judicial body in Poland. While its legitimacy and legality have previously been called into question, this judgment shows that the court – acting as an instrument of the governing Law & Justice party – is able to contribute directly to human rights violations that are likely to cost human lives.
Possible consequences of the judicial reasoning
The reasoning underlying the judgment may have far reaching consequences.
The entire judgment revolved around consideration of the rights and interests of the foetus. Taking an expansive interpretation of human dignity, the judges found that the protection of life guaranteed in Art. 30 encompassed the entire ‘biological existence of the human being’ from the moment of conception. The judges came very close to equating the ‘legal protection of everyone’s life’ to the right to life of the foetus. They went so far as to claim that Art. 71 para 2 of the Constitution – guaranteeing support for the ‘mother, before and after birth’ – gives rise to an obligation of the state to protect the life of the foetus.
The Tribunal suggested that for abortion to be justified it needs to meet the standard of ‘absolute necessity’, which was taken to mean that the protection of life of the foetus cannot be limited in order to protect rights and values of ‘lower standing’, such as the right to property, other economic rights, or even the health of others (sic). There was no discussion of women’s constitutional rights, including the protection of human dignity (Art. 30), the right to freedom (Art. 31(1)), the prohibition of torture and degrading treatment (Art. 40), the protection of health (Art. 68).
Consequently, the judgment opens the door to further limitations of abortion, because it suggests that abortion on grounds other than the protection of the woman’s life could be deemed unconstitutional. The representatives of anti-abortion groups in Poland have already implied that a new motion will be filed aiming to strike down the provision permitting abortion in cases of rape or incest.
The ruling also creates confusion on reproductive rights. While the judgment has not yet been officially published, and is therefore not legally binding, hospitals have already started cancelling abortion procedures. Doctors – afraid of criminalisation – may also start weighing up constitutional values and interests in every case of potential pregnancy termination. An increase in the number of legal cases brought against doctors is to be expected. In view of the long-standing complicity and inaction of the medical and the legal profession regarding reproductive rights in Poland, it is difficult to be sanguine regarding the outcome.
A much needed wake-up call
This should also be a wake-up call for the international community (especially the EU, the Council of Europe, and the ECtHR), which has generally not done enough to oppose continuous human rights violations of reproductive rights in Poland. More importantly, this should also be a wake-up call for those who think it is possible to separate democratic principles and the rule of law from reproductive rights. The latter have been ignored for decades. Polish women have been sacrificed for the sake of political and economic reforms. The detrimental impact of this fact on the overall quality of democracy in Poland is now clear for all to see.
This is a chance to say: no more.