Written by Adam Bodnar, Rafto Laureate 2018
Any amendment of abortion law should be made through inclusive public debate in which a new solution can be found. Instead the view of one party to the dispute has been arbitrarily imposed on all citizens, without taking account of dramatic impact on women and the risk of social conflict.
The issue of abortion concerns people who find themselves in most dramatic situations of life. For the last several decades, Poland’s law in this area has been restrictive, although considered to constitute a political and social compromise. In practice, in many places of the country the law was not complied with (e.g. in the Podkarpacie region abortion procedures have not been performed for two years). The situation often forced people to bypass the law to cope with the situation without the support of the state. The social costs of the existing legal solution were and are borne primarily by Polish women.
To get out of the crisis, any amendment of regulations applicable to this sensitive issue should be made through extensive public debate in which a new solution would be found. Meanwhile, in the Polish society basic principles of social communication have been violated. Instead of weighing values and arguments, the views of one of the parties to the dispute has been arbitrarily imposed on all citizens, without taking account of the increasingly dramatic impact on women and the risk of social conflict. Moreover, this has been done at a time of growing risks related to the coronavirus pandemic that threatens health and lives of Polish citizens, and during which even the normal exercise of civil rights and freedoms (such as the freedom of assembly) is significantly restricted.
According to the Commissioner for Human Rights, decisions on such an important issue as the availability of legal abortion should be taken by the Parliament. They should be based on thorough debate and consultations and on detailed analyses of the consequences of the proposed legislative changes, and should be taken after going through all the stages of the legislative process. It is also possible to consider the establishment in Poland of a citizens' assembly, similar to the one organized in Ireland, to consider all scientific, legal and social arguments. The assembly would be a platform for opinion expression by citizens from all groups of the society. In Ireland, the Citizens' Assembly on abortion operated in 2016-2017. Its work enabled the national-scale understanding of this difficult issue by citizens, and resulted in a referendum on amending the constitution. Citizens could therefore express their opinion and have their views fully reflected in the applicable law.
As a rule, the issue of abortion should not be forwarded for consideration to bodies as the Constitutional Tribunal that has no direct mandate from the citizens, given that the considerations are not of purely legal or theoretical nature. Yet, the Constitutional Tribunal’s decision has been taken at the request of a group of deputies who represent the majority in the Polish Parliament, which means that the state bodies’ roles have been reversed.
Moreover, the judgment has been issued by the Constitutional Tribunal sitting in a composition to the impartiality and independence of which there exist justified doubts. It included persons appointed as judges to positions already occupied by three other judges legally appointed by the Sejm as Constitutional Tribunal judges in October 2015. Doubts may also be caused by the presence in the Tribunal’s composition of Krystyna Pawłowicz who, as an MP, had openly supported the tightening of the law, which may suggest her lack of impartiality as a judge of the Constitutional Tribunal.
The Act of 7 January 1993 on family planning, protection of human foetuses, and the conditions under which pregnancy termination is permissible was a specific ideological choice. It was not satisfactory for any of the parties to the dispute but has found its permanent place in the public awareness. For 27 years, abortion in Poland has been permissible in particular under the following conditions:
1) pregnancy poses a threat to the life or health of the pregnant woman;
2) prenatal tests or other medical evidence available have indicated a high probability of severe and irreversible disability to the foetus or an incurable illness threatening its life;
3) there exists a justified suspicion that the pregnancy arose as a result of a crime (rape or inceest).
The judgment of 22 October 2020 (K1/20) means the elimination of the second condition under which legal abortion is permissible. In the light of Article 152 of the Penal Code, the procedures legally performed until now will be penalized with imprisonment, starting from the date of the publication of the Constitutional Tribunal's judgment.
The Commissioner for Human Rights would like to point out that by issuing the judgment in question, the Constitutional Tribunal has actually created a new category of offence that is punishable by imprisonment of up to three years. This stands in stark contrast to the Constitutional Tribunal’s role as so-called negative legislator. The fact that the introduction of penalization of a specific act is the sole competence of the Parliament has been underlined by Constitutional Tribunal judge Piotr Pszczółkowski in his dissenting opinion.
The judgment of the Constitutional Tribunal ignores women's rights. Women are deprived of their right to take a decision whether, for example, to give birth to a child who will die in suffering after a few days. In this context, attention should be paid to the arguments contained in the dissenting opinions of judges Leon Kieres and Piotr Pszczółkowski. They refer to the lack of balance between the goods in conflict and to prioritizing solely the protection of the conceived life, without taking account of the rights and freedoms of women who are objectified. As the judges have stated, the law cannot impose the requirement of heroism on women.
The Commissioner for Human Rights has repeatedly pointed to numerous problems with exercising the rights provided for under the Act of 1993. An analysis of the reports on their exercise, as well as numerous individual complaints prove that the state fails to properly ensure the possibility of exercising patients’ rights by women who want to use the legal abortion procedure. In practice, this possibility has been significantly limited. The Commissioner has notified this fact many times to the Minister of Health and the Prime Minister.
On 7 October 2015 (K 12/14) the Constitutional Tribunal ruled that physicians who refuse to perform legal abortion on the grounds of conscientious objection are not required to indicate to the patient another place where the procedure can be sought. To date, the state has not introduced any regulations specifying who is responsible for providing such information. There have also been cases in which patients were not informed about disability to the foetus or the threat to life or health. There have been cases of refusal to perform the required prenatal and genetic examinations, and of appointments with doctors
postponed to avoid refusing the procedure, until the time when pregnancy could no longer be terminated (i.e. beyond the usual 20-24 week time limit).
This year, the Commissioner for Human Rights (as amicus curiae) joined such a case before the European Court of Human Rights. The case concerns a woman to whom the abortion procedure was refused despite the fact that the conditions set out in the Act were met. There existed severe disability to the foetus and, thus, medical reasons for performing an abortion. The gynaecologist referred to the conscientious objection but did not inform the patient where the pregnancy could be terminated. The woman gave birth to a child with a severe illness, who died after a few days. The ECHR is going to examine whether there has been a violation of the patient’s right to privacy and of the obligation to provide protection against torture and inhuman or degrading treatment (case B.B. v. Poland, application no. 67171/17).
For over a decade, Poland has failed to fulfil its obligations with regard to three cases lost by it in the ECHR, which concerned termination of pregnancy and prenatal testing: Tysiąc v. Poland (application no. 5410/03), R.R. v. Poland (application no. 27617/04), and P. and S. v. Poland (application no. 57375/08). In the recommendations regarding the implementation of these judgments, the Commissioner for Human Rights of the Council of Europe emphasized that specific measures should be undertaken by Poland. The failure to undertake such measures, and the Constitutional Tribunal’s judgment that takes the opposite direction, violates Poland's obligations under the European Convention on Human Rights.
In the current situation, the Commissioner for Human Rights calls for urgently resuming the dialogue and for conducting substantively based negotiations, with the participation of various civic and political groups, on how to adjust the applicable legislation to the actual problems and how to solve women’s dramatic situations in a manner which ensures dignified treatment of human life, human rights and women's difficult choices. Perhaps the Irish experience could be a source of inspiration for Polish decision-makers.
What we need is an agreement, not a conflict. And here, responsibility rests with the politicians. First of all those who are currently in power in Poland. Women must not be deprived of their subjectivity with regard to matters so vital for them: this is one of the main indicators of democracy and the rule of law