Polish Constitutional Tribunal Ruling Against Abortion

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By Giulia Miraglia

On Thursday, Oct. 22, the Polish Constitutional Tribunal–the highest constitutional court–decided to abolish the rights to abort in case of deformed fetuses, making this law unconstitutional.

The sentence came from a motion made by several Right Wing of the Republic, Law and Justice and Real Movement Europe legislators. According to them, the interruption of pregnancies for deformed fetuses violated Article 30 of the Polish Constitution concerning the protection of every individual.

The president of the Polish Court, Julia Przyłębska, justified the decision saying that the 1993 law set out the condition for “eugenic abortions”, which constitute the basis for shameful discrimination on the basis of disabilities. The judicial sentence represents a direct effect of judicial reform proposed in 2015 by Jarosław Kaczynski–leader of the Law and Justice Party (PiS)–which pushed Poland toward a collision with Europe for the violation of the rule of law. The Polish Constitutional Tribunal has been widely considered to be manipulated by the ruling right-wing populist and conservative PiS. The majority of judges have been nominated by the president of Poland, Andrzej Duda, in 2015.  The party, which took control of Poland’s presidency in May 2015, wanted reforms in order to better politically balance the Court. Conservatives took control of judicial watchdog, introducing changes affecting the Constitutional Tribunal, the Supreme Court and the common courts. Obviously, critics accused the Law and Justice Party of destroying the checks and balances of  Polish democracy.

Catholic Poland already has the most restrictive rules in Europe on the interruption of pregnancies issue–except for Malta. Until now, the act of abortion has been allowed only in cases of a real health risk for the mother, serious and irreversible malformations of the fetus, rape or incest. Furthermore, the public prosecutor has to prove the decision in the latter conditions. Through the strict limitations recently introduced, Polish women lose more and more of their freedom of choice and are constrained to dangerously end  pregnancies abroad. Women who may decide to undertake an illegal abortion face up to five years of prison–compared to the current two years. The same treatment is expected for doctors who allow the practice of it. But there is more: women who have a miscarriage will also be under investigation by a judge that has the duty to verify whether it was actually an accident or a deliberate interruption.

Protestor forcibly removed by Polish police and members of the far-right ultranationalist All-Polish Youth group in Warsaw, Poland, October 25, 2020 (Czarek Sokolowski | AP)

Already in 2016, the touchstone issue of abortion took the scene in Polish politics. The abortion ban was both supported by the government and the Catholic Church. Although no parliamentary party has Catholic or Christian within their names, data showed a decline in the support, but still strong, for Roman Catholic Church from 92,8% in 2015 to 87% in 2019.  In June 2016, several thousand people in Warsaw demonstrated their opposition to a total ban on abortions. The “march for dignity” gathered ordinary women on the street. The same year on October 3rd, almost 100,000 people held protests against the abortion ban called Black Monday (Czarny Poniedziałek). Fortunately, the parliament rejected the near-total ban.

In 2019, more than1,100 legal abortions have been conducted in Poland. This is an increase of3,2%, most of which was for the health problems of the fetus. In April 2020, socially distanced protests took place across the country. Activists feared that politicians could take advantage of the Covid-19 pandemic situation to forbid large street protests. After the Constitutional Tribunal’s sentence on Oct. 22, 2020, protesters marched from the court to Jarosław Kaczynski’s house in Warsaw expressing their anger against the government. Suddenly, other cities–Lodz, Szczecin and Krakow- followed the protest. It has been reported that police officers used pepper spray and physical force to keep protesters back. On Sunday, Polish women continued their protests entering churches.

The new sentence made by the Constitutional Tribunal means a total denial of the end of pregnancy. Amnesty International and Human Rights Watch opposed the government position of attacking women’s rights and the independence and autonomy of the rule of law in Poland. The Commissioner for Human Rights at the Council of Europe, Dunja Mijatovic, expressed her opposition against the removal of the basis for all legal abortions because it could be violating human rights. She also added on Twitter “Today’s ruling of the Constitutional Court means underground/abroad abortions for those who can afford & even greater ordeal for all others. A sad day for #WomensRights.”

Imagery used by people protesting Poland’s restrictive abortion laws. In English it translates to “Reject The Godek’s project #women’s hell”. (Artist Unkown)

A sense of solidarity also came from Abortion Without Borders, a group comprised of activists from different countries that provides women with information, funding, translation services and more. Traveling abroad to abort is not new. This organization allows the creation of a caring network to help women who wish to end a pregnancy.

On the same night of the near-total abortion ban, the United States took part in a virtual meeting of the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family. Thirty-two countries, among which the U.S., Egypt, Brazil, Hungary, Poland, Uganda and Indonesia, signed the anti-abortion declaration affirming the absence of an international right to abortion. Secretary of State Mike Pompeo said that under Trump’s presidency, the U.S. has always and everywhere defended the dignity of human life. The abortion issue has emerged again since the nomination of Judge Amy Coney Barrett, who is going to replace the icon Ruth Bader Ginsburg in the Supreme Court.

In fact, on Monday the 26th, A. C. Barrett was confirmed by the Senate, creating a 6-3 majority of conservative justices in the Supreme Court. The risk now is to open a new era of rulings on social issues–such as abortion, LGBTQI+ rights and the Affordable Care Act. 

The abortion debate is a delicate topic for women who find themselves facing a moral dilemma. But access to legal and safe abortion services is needed to prevent 47,000 women from dying each year from unsafe procedures. The World Health Organization has demonstrated that criminalizing the ending of pregnancy does not reduce the number of abortion procedures.

States should act to decriminalize abortion and ensure every woman to have the right to make her own decision about a future pregnancy.

Giulia is a political writer for La Tonique. You can follow Giulia on Twitter ⁦@gm_miraglia⁩.