A Judgment by the Polish Constitutional Tribunal (CT) dated 22 October 2020 (ref. K1/20) marked the dark day for Polish women and their reproductive rights as it banned abortions in case of fetal abnormalities. Abortion laws in Poland are codified in The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act, 1993 (Act).
Abortion law: before judgment
Before the said judgment, per article 4a para 1(1)–(3) of the Act, there were three grounds on which a woman could get an abortion:
1. Where the pregnant woman’s life is at a risk;
2. Where the pregnancy is a result of rape or incest; and
3. Where there is sufficient medical evidence which signifies fetal abnormality.
Abortion falling under any other category was deemed to be illegal.
Abortion law: after judgment
Now the judgment nullifies the third ground of the Act by declaring it unconstitutional, thereby moving the country towards an almost total ban on abortions, further violating the core constitutional principles. When the judgments are published in the journal of laws, they come into force without there being any need to make changes in the statutory laws. Even though due to massive protests, the publication of this judgment was kept at bay for a long time, it finally got published in the journal on 27 January 2021. Even before its publication, Poland had already started witnessing a chilling effect as hospitals had cancelled the scheduled terminations and women were traveling abroad to get their abortions done.
There are two main issues arising out of the verdict: the first one is the overreaching definition of ‘fetus’ and the second one is the restriction on a woman’s reproductive autonomy.
Fetus: a human being?
First, the Judgment sparks the debate between the freedom of choice of the pregnant woman and right to life of the fetus. The Court’s majority bench has justified its decision by giving a wide interpretation to the right to life (article 38) in conjunction with the right to human dignity (article 30) of the Polish Constitution 1997. Both give legal protection to every ‘human being’. The Court has justified its decision by saying that ‘fetus’ comes under the definition of a ‘human being’ and therefore has the right to life, irrespective of the pregnant woman’s health condition and fatal abnormalities.
However, the legal position is far from what has been presented. While commenting on right to life (article 38), R Zdybel said that, ‘The provision of article 38 of the Constitution of the Republic of Poland protects only the life of a human being whom a child becomes after being born and acquiring legal capacity. Legal protection of life does not mean the protection of human life from the moment of conception’. Article 8 § 1 of the Poland’s Civil Code states that ‘Every human being has legal capacity from the moment of birth’. This means that although nasciturus is a subject of law, but that doesn’t mean that it possesses legal capacity. Subject acquires legal capacity only at the moment of birth. This signifies that fetus is not recognized as a ‘human being’ under Polish law.
International instruments also back this principle. Article 1 opens the Universal Declaration of Human Rights (UDHR) with the statement that ‘All human beings are “born” free and equal in dignity and rights’ signifying that holders of human rights can be “born” persons only. Right to life under article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) also applies after birth as the history of negotiations indicates that a contrary provision was proposed but was rejected. Article 1 of the Convention on the Rights of the Child defines child as ‘every human being below the age of 18 years’ again signifying the intention of applying the Convention only to children who are born. A contention to the contrary is mistakenly based upon Paragraph 9 of its Preamble, which states ‘Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”’ This reflects, at most, acknowledgment of a State’s obligation to advance, through nourishment, wellbeing and support directed to the pregnant woman, a child’s ability to endure and thrive after birth. This corroborates to the fact that ‘fetus’ does not fall within the purview of ‘human being’, neither under Polish law nor under international conventions and therefore the Judgment cannot seek shelter in the aforementioned provisions.
Reproductive autonomy, women rights and secret abortions
The ruling failed to acknowledge rights of women and has likewise neglected the various conventions to which Poland is a signatory. Article 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination Against Women 1979 guarantees women the equal freedom to ‘decide freely and responsibly on the number and spacing of their children’. The Polish Constitutional Tribunal also disregarded the General Comment No. 22 (2016) on the Right to Sexual and Reproductive Health (article 12 of the International Covenant on Economic, Social and Cultural Rights) and General Comment No. 36 (2018) (article 6 of the International Covenant on Civil and Political Rights), both of which speak about the exigency of safe abortions and the elimination of restrictive abortion laws. Simultaneously, Poland has ignored the fact that accommodating and providing for a child born with fetal disfigurements requires extreme passionate and monetary venture, which not every woman has means to afford. This ruling becomes an accessory to discrimination against women as it prevents them from exercising their right to choose, privacy, life, health, dignity and respect for family life. All of these rights are also enshrined under The Human Rights Act, 1998 and have been upheld by the European Court of Human Rights (ECtHR) in landmark cases such as Tysiąc v Poland and R R v Poland. Inclining towards the freedom of choice, the Court has explicated in these cases that a woman’s reproductive autonomy cannot be superseded by ulterior notions. In General Comment No. 28 (2000) (article 3 of the International Covenant on Civil and Political Rights), it was specifically asked from the member states to help their women prevent unwanted pregnancies which was not followed by the Constitutional Tribunal. The Human Rights Committee in its fifth periodic report on Poland, concluded in its observations that the ‘restrictive abortion laws in Poland may incite women to seek unsafe, illegal abortions with attendant risks to their life and health.’ It is to be noted that this observation was made back in 2004 when pregnancy was still terminable in Poland on showing any fetal abnormality. Now in 2020 with that choice also being gone and the laws becoming harsher, there would be a rise in life-threatening clandestine abortions as Polish women would be left with no other option.
It is interesting to note that prior to this judgment, the Polish government had been trying to introduce a complete ban on abortion since 2015 by way of legislation but had repeatedly failed. In 2015 a civil initiative to have a complete ban on abortion got rejected in the Sejm (the lower house of the bicameral parliament of Poland). In 2016 government proposed an amended legislation to ban abortion in all cases except when to save the pregnant woman’s life, but it again did not pass. While taking advantage of COVID-19 restrictive measures and as a final attempt, in April 2020 a ‘Stop Abortion’ bill was enacted but this was also not successful as the Sejm had redirected the bill for further review in parliamentary committees. The position of the judges of the Constitutional Tribunal who have pronounced this judgment is also in question as their appointment has been strategically politicized and has not been made in accordance with the procedure prescribed in the Constitution, because of which the sanctity of the judicial court is being tampered with. It seems like Poland’s Constitutional Tribunal has become a government enabler which is being used as a back door to pursue the political objectives of the current government. The motion rested with the court for several years. The political project that the verdict was supposed to be served now was clear.
Concluding remarks
The panacea that could have been followed is that instead of limiting the scope of abortion, they could have regulated it in a healthy manner. The Tribunal’s decision has attracted criticism worldwide, including denunciation by the Commissioner for Human Rights at the Council of Europe. Since 1989 Poland has been generally proclaimed as a significant example of a country that went through an effective progress from dictatorship to a stable constitutional democracy. It is despairing to see the quick decay of law and order and the debilitation of majority rule standards. The new judgment of the Constitutional Tribunal shows that reproductive rights can regularly give a litmus test to the viable standardization of popular government, particularly where it has unsure establishments. Under the garb of widening the scope of the right to life, it is arbitrarily taking the country towards a bleak future with an even stricter regime where not only will the women be denied of their reproductive rights, but which will also solidify people’s lack of confidence in both medical organizations and legal principles and procedures. In both respects, public respect for foundations that are crucial to functioning democracies is likely to decrease.
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