by Alessia Riccioli*
The Act on Pregnancy Planning of the Republic of Poland (7 January 1993) regulates abortion in the country. It was recently amended by the Constitutional Court. Through this ruling, delivered on October 22, 2020 (K 1/20) and published on January 27, 2021, Polish abortion law results as one of the most severe in Europe. This decision stated the unconstitutionality of abortion in case of severe fetal abnormalities. One day early, the government suddenly announced a near-total ban on abortion. The publishment of the 2020 ruling was delayed due to the extensive demonstrations involving students, feminist movements, LGBT+ rights organizations, and much of civil society for several weeks.
The Article 152, par. 1 of the Polish Penal Code considers pregnancy termination with woman’s consent as criminal offence. According to par. 3, a more severe penalty must be applied in case of pregnancy termination when the conceived child could have been independent from the mother’s womb. While the case was examined by the Tribunal in 2020, Article 4a(1) of the aforementioned Act of 7 January 1993 provided three conditions for pregnancy termination, which can be described as 1. medical reasons (namely when pregnancy could be a threat to the life or health of the pregnant woman, 2. eugenic reason (when there is “a high probability of a severe and irreversible fetal defect or incurable illness that threatens the fetus’s life” based on prenatal examinations or other medical grounds) and 3. criminal reason (when there are justifiable suspicions that the pregnancy results from a criminal act).
In 1996 Polish Parliament tried to liberalize abortion, providing two new social reasons for pregnancy termination, namely “difficult living conditions” or “difficult personal situation” of the woman, amending the Act of 1993 by the Act of 30 August 1996 (Journal of Laws, Number 139, Item 646), but they were eventually declared unconstitutional by the Tribunal on 28 May 1997 (K 26/96). Over the past two decades, this last judgment has been considered one of the most influential on subsequent jurisprudence, being cited several times in decisions concerning human life. The Constitutional Court ruled that human life must be protected from the prenatal stage, holding that the rule of law requires that the protection of human life must be guaranteed from the moment of conception.
In Poland, the independence of the judical system is strongly affected by its ties to politics. Thereby, courts are clearly influenced by political actors. The topic has become more urgent after that the PiS party (in English known as “Law and Justice”) took office for the first time in 2015, with a super-majority of two-thirds. Since then, Polish gender equality policies have been undermined. A reversal of previous policies on gender issues has took place through actions such as removing funds from the IVF programme in 2015 and reversing the law on access to emergency contraceptives in 2017, also making the access to contraceptives more difficult. Moreover, existing policies were reinterpreted: the Article 152(2) of the Penal Code makes a crime providing information on access to abortion. In 2016, the National Prosecution Office reinterpreted the norm extensively, stating that giving any information on access to legal abortion abroad was a crime. The Council of Europe’s legal advisory body, the Venice Commission, and the European Commission have underlined the problem. With a Rule of Law Recommendation, adopted in 20 December 2017, the European Commission startedinfringement procedure, based on “a clear risk of a serious breach of the rule of law in Poland”, under Article 7(1) TEU, due also to concerns related to the lack of an independent and legitimate constitutional review. In 2020 Rule of Law Report, the Commission stated that the independence and legitimacy of the Constitutional Tribunal is still an unresolved concern. In 2021, The European Court of Justice (C-791/19) ruled that the disciplinary regime for judges in Poland is not compatible with EU law.
In the aforementioned 2020 decision, the Constitutional Tribunal referred to Article 38 of the Constitution, which states that “the Republic of Poland shall ensure the legal protection of the life of every human being”, in conjunction with Article 30 (which focuses on the obligation of Polish authorities to protect human life) and Article 31(3), which states under what circumstances it is legal to restrict the exercise of constitutional freedoms. The Court addressed this issue by considering two constitutional questions: the legal status of the child in the prenatal stage of life and the admissibility and limits of abortion. The Court confirmed its earlier position, expressed in its 1997 decision, that human life is a value at every stage of its development and it must be protected by the legislature, deeming the foetus on the same level as a complete human being. Considering the provisions of Article 38 in conjunction with Articles 30 and 31(3) of the Constitution, the Court held that the only grounds for terminating a pregnancy cannot be circumstances related to the health of the child. As the eugenic abortion is no longer legal, the Article 152(1) has a wider effect.
Thus, as of 27 January 2021, termination of pregnancy for eugenic reasons became a crime, remaining legal only under two circumstances: 1. if the pregnancy is the result of rape or incest, or 2. if the mother’s life or health is endangered by the continuation of pregnancy. Unlike other countries that have such strict abortion laws, in Poland a woman who has an abortion is not punishable, but medical personnel who perform the practice may be subject to sanctions including imprisonment.
Moreover, even when abortion is legal, multiple barriers combine to severely limit access to care in practice, as the Poland’s “conscience clause”, provided by the Article 39 of the Doctor and Dentist Professions Act (Act of December 5, 1996), which gives to medical personnel the choice to refuse to perform abortion if they consider it in conflict with their personal values or beliefs. The law states that personnel must refer a woman to another doctor or facility where having an abortion is actually viable, but it does not happen frequently [1].
Furthermore, Polish laws provide that when circumstances justifying abortion are criminal acts, the crime must be ascertained. This provision makes legal abortion extremely difficult for Ukrainian women who have been victims of rape and refugees in Poland after the Russian invasion. According to new data collected by UNHCR from national authorities, at least 8.1 million refugees from Ukraine have been registered throughout Europe [2]. Poland hosted the largest number of Ukrainian refugees, and most of them are women and children, who are always at higher risk of exploitation and abuse [3] (even though it must be taken into consideration that Polish authorities are not collecting disaggregated data on Ukrainians coming to Poland). As experiencing violence as a female migrant or refugee is not uncommon, humanitarian organizations have quickly organized themselves to give Ukrainian refugees help. According to research [4], approximately one in five refugees or displaced women in complex humanitarian settings experienced sexual violence and they are at higher risk of human trafficking, as well.
Therefore, some no-profit organizations tried to deal with the abortion situation in Poland, also helping Ukrainian women. Among them, there is the Abortion Dream Team (ADT) that has produced information materials in Ukrainian, explaining how to obtain an abortion pill safely or how to go for an abortion in other countries where it is legal. ADT bypassed polish laws by referring women seeking abortions to foreign-based organizations where the most common abortion drugs, mifepristone and misoprostol, can be obtained legally and sent by mail. Thus, ADT could not be accused of directly providing abortions. It is not illegal for a woman in Poland to terminate her own pregnancy. But it is illegal to provide help. J. Wydrzyńska, one of the co-founders of ADT, has been accused of helping a woman who was a victim of domestic violence to have an abortion. In late February 2020, Wydrzyńska sent pills she had at home directly to the woman who had contacted her asking for help. The woman was 12 weeks pregnant as a result of domestic violence. On 14 March 2023, Warsaw Praga Południe District Court sanctioned Justyna Wydrzyńska for “aiding to perform abortion” and condemned her to 8 months of community service for 30 hours a month, based on the basis of Article 152(2) of the Polish Penal Code [4]. The decision was a setback for the Polish and international abortion rights movement, following the abolition of Roe v. Wade by the U.S. Supreme Court last year. It is consistent with the ideological background of the 2020 judgment of the Polish Constitutional Tribunal, which made abortion almost total banned in practice, not reflecting the social perception of abortion or any other public interest, but rather implementing the populist agenda of the political group currently in power.
The situation may normalize following the rulings of European Human Rights Court (ECtHR) issued in response to complaints filed after the 2020 Polish Constitutional Tribunal’s ruling. The ECtHR has to assess whether Polish provisions on abortion (in particular the elimination of the condition of fetal malformation for legal abortion) are consistent with Articles 3 and 8 of the Convention. In any case, the problem of abortion is related to the level of protection the state provides to women and is a cultural, rather than a legal issue, usually linked to right-wing populism, thanks to which anti-genderism is politically effective. It is an bind on two levels, both ideological and strategic. Anti-gender campaigns are symptomatic of a conflict of values that questions the role of the state, making gender a key battleground for the redefinition of political scenes.
*PhD Candidate, University of Pisa
