Image by freestocks-photos from Pixabay
On October 22nd, the Constitutional Tribunal in Poland declared abortions for fetal abnormalities unconstitutional, effectively eliminating access to safe abortions across the country. Prior to the ruling, an abortion was only allowed under the premise of fetal defects, health risks for the mother, or in the case of rape or incest.
Each year, roughly 1,000 women seek abortions in Poland. However, women’s rights groups estimate that 100,000 women have travelled abroad for abortions since the legal and social obstacles have made obtaining one in Poland a grueling task. The Federation for Women and Family Planning claims that the number may be as high as 150,000, with popular destinations for abortions being Germany, the UK, and the Netherlands. However, the ongoing COVID-19 pandemic has made international travel difficult; closed borders and lockdowns have left women with limited resources to obtain abortions safely.
The Current State of the Polish Judicial System
The Law and Justice Party (PiS) is a conservative and right-wing populist party in Poland that has aims of reforming the country’s judicial system. As of May 2018, the party exerts complete control over the appointees to the Constitutional Tribunal. The Tribunal, the highest judicial body, is composed of 15 judges and resolves disputes about the constitutionality of various state mandates and activities.
In September 2020, the Venice Commission and the European Commission both expressed their disapproval of the government’s direct interference with the Tribunal, stating that “concerns over the independence and legitimacy of the Constitutional Tribunal remain unsolved.”
Under the new populist government, it is illegal for any judge on the Tribunal or other district and regional courts to criticize government changes to the judiciary and judicial system. Laced with corruption and desires for power, this politicization indicates that the Tribunal functions below the executive branch. The Tribunal, in coordination with PiS supporting judges, has tried to oust critics of the party from the Tribunal itself and other regional courts. The PiS, which draws its power from these judges, has also tried to incorporate Catholic values into the judicial system and has even, for example, passed a law that lowers the retirement age at both the local and national level in an effort to employ more judges loyal to the party. Thus, the Tribunal essentially functions as a front for the PiS party to push, without backlash, their agenda, of which an abortion ban is at the forefront.
The Abortion Ban Ruling
Last year, 96.8% of legal abortions in the country took place due to fetal abnormalities, of which 40 abortions occured due to rape or incest. With the overwhelming majority of abortions being carried out as a result of fetal defects, the ruling would technically place an almost total ban on abortions in Poland.
In 2016, various anti-abortion movements, such as Stop Aborcji (Stop to Abortion), gathered support from over 830,000 Polish citizens. Thus, the Polish parliament was obligated to consider the bill after the petition signatures exceeded 100,000. However, the opposing pro-choice groups, which came to be known as the “Black Protest,” fought back against the schedulded ruling, and in an effort to prevent civil unrest, the PiS government let the bill die on the commitee floor.
In the 2019 Polish parliamentary elections, the PiS party retained its majority in the Sejm, the main governing body of the Polish parliament, and newly elected government officials and judges re-submitted the abortion ban proposal. The signatories argued that the current legislation, “violates Constitutional protections of human dignity (Article 30), the right to life (Article 39) or the prohibition against discrimination (Article 32).” The bill was then introduced to the Parliament with ample support.
The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act of 1993 allows abortions to be performed up until 12 weeks gestation for the aformentioned reasons under Article 4a. However, the Tribunal overturned Article 4a, sec. 1 point 2 and Article 4a sec. 2, which states that abortions may be performed if “Prenatal examinations or other medical conditions indicate that there is a high probability of a severe and irreversible fetal defect or incurable illness that threatens the fetus’s life.” The PiS backed Tribunal, which aims to push Catholic and traditional values, ruled in favor of the ban (11-2). One judge stated in support of the ban that abortion on the basis of fetal abnormalities pushed “eugenic abortions” and discrimination based on disability. This ruling still makes abortions legal under the premise of risks to the mother’s health or in the event of rape or incest.
The Implications and Aftermath
Following the ruling, Poland erupted in nation-wide protests, also receiving additional support from the international community (e.g., Sydney, Lisbon, London, Tel Aviv, Chicago). Nearly 800,000 Polish citizens took to the streets, with over 100,000 people gathering in the capital city of Warsaw. Comparatively, these protests are the largest the country has seen since the fall of the communist government in 1989. Over the weeks, the protests have intensified, and 1,000 police forces have been brought in to maintain civil order.
In response to the unrest, the President, Andrzej Duda, proposed a compromise on the ruling where abortions would be allowed if the fetus would not be able to survive birth, but this was promptly rejected by protesters. Despite this, the protests have delayed the ruling from going into effect, but the government seems adamant to legally publish it. The PiS party leader, Jarosław Kaczyński, even publicly called upon his supporters to, “defend Poland, defend patriotism” and “defend Polish churches.” Poland, a predominantly Catholic country, has numerous citizens who view abortion as an “attack on family life and on the country’s faith.” While media coverage has been mostly about the protests opposing the ban, the “silent majority” who support it have not been engaging in counter-protests. The Deputy Foreign Minister, Paweł Jabłoński, has stated that the government will “not be apologizing” for their actions.
As of the week of 27 November 2020, mass protests have continued in Warsaw. Thus, the government has decided to delay the ban, but this leaves doctors and women seeking abortions in limbo. While the ban has been delayed, various hospitals have begun to turn away women and have refused to perform abortions in fear of breaking the law. This has led to much legal confusion amongst both patients and healthcare providers over the current legality of abortions. One woman [anonymous], whose fetus is missing vital organs and won’t survive, was turned away by three hospitals for an abortion and has even considered moving to another country to receive one. While this may be a solution for some, numerous Polish citizens do not have the financial security to do so. Warsaw residents, for example, do have a high standard of living, but various other regions in the country are among the poorest in the European Union. Thus, their only access to a safe abortion would be in Poland. While some woman are still able to reeive abortions, albeit with much diffuculty, once the ban is published in the Journal of Laws, the ban will take legal effect.
Beyond the scope of the protests, this ruling has large implications for Polish women seeking abortions. Since a very small number of abortions are preformed due to health reasons or because of rape or incest, this ruling makes obtaining safe abortions in the country virtually impossible. The travel restrictions imposed by the COVID-19 pandemic also make it difficult for women to travel to other EU countries for abortions. Furthermore, the ban makes it so that women will be forced to have children with fetal abnormalities. While it may be argued that it is unethical to abort a child because of a genetic defect, there is “very little institutional support in Poland for families with disabled children, leaving parents to fend for themselves once the child is born.”
While there seems to be no end in sight for the protests and those in the Tribunal who refuse to overturn the law, this issue highlights the larger problem of a sectarian and single-party state. Even though Poland is a representative democratic republic, Catholic values are deeply embedded in the constitutional framework of the country. As the PiS gains more power, we may begin to see more controversial laws similar to the abortion ban and even more backlash from Polish citizens. The potential implementation or withdrawal of the abortion ban may take months as both side refuse to concede. A solution to this problem begins with restructuring the judicial framework and holding lawmakers accountable, most notably the PiS for supporting a PiS-backed Tribunal. Everyday citizens and smaller political parties have very little say in government at the moment, but ensuring that more viewpoints are represented may help prevent such political divisions in the future.