On October 22nd 2020, the Constitutional Tribunal of Poland (‘Tribunal’) restricted the legality of abortions in Poland. Citing harm to the foetus and irreversible birth effects, the Tribunal held that abortions are unconstitutional in nature. This ruling is the result of a request submitted by a group of 119 members of the parliament to the Tribunal for the re-assessment of the constitutional viability of Poland’s abortion laws.
Previously, Article 4a of the Family Planning, Human Embryo Protection, and Conditions of Permissibility of Abortion Act of 1997 (‘Abortion Act’) permitted abortion to continue in three instances: firstly, when the pregnancy posed a threat to life or health of the pregnant woman; secondly, when there was a high probability of a severe and irreversible foetal defect or incurable illness that threatens the foetus’ life; and thirdly, when the pregnancy was suspected to be caused by an unlawful act. The recent ruling will now essentially limit legal abortions to only those where it is suspected that the pregnancy was due to incest or rape or when the pregnancy threatens the life or health of the woman.
It should be noted that almost 98% of legal abortions in Poland have occurred on account of a foetus anomaly. Given the already restrictive purview taken by the Abortion Act, this ruling poses a strong threat to the availability of abortions. In fact, in 2017, Poland did not report a single abortion that took place on account of rape. Hence, it may be said that the ruling effectively places a ban on abortions in Poland, as the legal means for women to pursue their reproductive rights and health will now be further restricted.
The reasoning cited by the Tribunal in the ruling is that the foetus acquires the rights of non-discrimination and dignity of human life at conception and abortion would essentially eliminate those rights. However, it has been argued that the ruling appears to be politically motivated. The ruling party in Poland, the Law and Justice (PiS) party, in the years 2016 and 2018, tried to introduce a complete abortion ban through the introduction of the ‘Stop Abortion Draft Bill’; however, demonstrations and protests ensued, resulting in the ruling party rescinding their attempt at restricting abortion. PiS has often targeted women’s rights activists in Poland by attempting to introduce retrograded laws and policies. Now it would appear that the PiS elected judges of the Tribunal have provided a constitutional backing in PiS’ favour, as only two of the thirteen judges in the Tribunal opposed the ruling, causing severe unrest in the country once again.
The recent ruling has been followed by the emergence of protests, criticism of Poland’s already conservative laws around reproductive rights, and questioning of the legitimacy of the Tribunal in itself. One could say that the Tribunal is enforcing the decisions of the authorities rather than strictly adhering to the constitution. The judiciary of Poland has been under a constitutional calamity ever since PiS decided to appoint their own judges rather than appointing the judges which were legitimately nominated under the previous government, leading Poland to no longer be an ‘independent arbiter of its constitution’. PiS has also been able to gather a majority within Poland’s highest court after appointing the President of the Tribunal by breaching due process, which in turn serves to question the decisions rendered by the Tribunal.
The current term of the PiS still has three years to go, and hence the ruling is extremely timely in invigorating parts of the Catholic population. Under the guise of granting the rights to the foetus, the Tribunal has essentially restricted the rights of women. The Tribunal justifies the ruling by stating that the current Abortion Act allows for eugenic abortion to take place which in turn allows for discrimination due to disability. However, since fourteen of the fifteen judges in the Tribunal have been appointed by the PiS itself, a question arises as to what extent is the decision of the judges really ‘free of all biases’, and whether then it would be referred to the Court of Justice of the European Union (‘CJEU’) for further resolution.
Currently, many doctors in Poland have already been advised to not proceed with any abortions on account of foetal defects. The Tribunal’s ruling will certainly restrict the capacity of doctors to assist in legal abortions, causing women to refer to alternative mediums. Given the fact that the Polish Criminal Code prescribes a punishment of imprisonment up to two years for causing a death of a conceived child, and that the ruling has precluded instances of foetal defects as legal consideration of abortions, it is highly likely that doctors in Poland will be reluctant in conducting prenatal examinations. The Tribunal has also not taken into consideration the social costs of introducing such an anti-abortion law and puts women under the consternation of prosecution.
The current structure of the Tribunal and the interference of due process by the ruling party have led to the lack of confidence in the judiciary in Poland. The precedent set by the ruling appears to be requiring women to be valiant in nature, which does not serve the purposes of freedoms prescribed and granted under Article 31 of the Constitution of the Republic of Poland.