A European Gilead: Using the Courts to Curb Abortion Rights in Poland

Poland’s Constitutional Tribunal (PCT) recently ruled that allowing abortions in cases of foetal abnormality violates a number of rights protected by the Constitution. The ruling is yet to come into force, but upon taking effect, it will further restrict abortion in a country where access to abortion is already extremely limited. Poland’s current abortion legislation prohibits abortion on all but three grounds; abortion is permitted only where the pregnancy risks the life or health of the pregnant woman, where the pregnancy resulted from rape or incest, or where there is a high probability of severe and irreversible foetal abnormality or fatal illness. It is under the latter ground that 98% of abortions in Poland take place.

Accessing Abortion in Poland

Most Polish women requiring abortions have no choice but to travel abroad or seek a clandestine abortion within Poland. In 2019, just 1,100 legal abortions took place (1,074 of which were for foetal abnormalities) compared to the estimated 80,000 to 120,000 abortions obtained by Polish women abroad or illegally. This includes women who meet the grounds for a legal abortion in Poland but, due to various barriers, are unable to access abortion services. The European Court of Human Rights (ECHR) has previously found Poland in violation of Articles 3 and 8 in a number of cases for failing to guarantee access to abortions to women and girls who were legally entitled to them. Poland does not criminalise pregnant women who obtain clandestine abortions, but any person performing an illegal abortion can be subject to two years’ imprisonment. This has a chilling effect upon doctors which, coupled with religious objection, creates obstacles as doctors are often unwilling to perform abortions.

The Ruling

The PCT ruled that the rights to life, dignity and non-discrimination protected by the Polish Constitution applied to the foetus and so abortion based on foetal disability amounts to disability discrimination. The PCT’s President, Julia Przylebska, commented that the current law legalised ‘eugenic practices’ which denies unborn children ‘the respect and protection of human dignity’. While there are legitimate concerns over abortion for foetal disability, the Human Rights Committee (HRC) recommends that, at a minimum, abortion be decriminalised in cases of foetal abnormality, as well as where the pregnant person’s life or health is at risk and in cases of sexual crime. The HRC has found that preventing women from accessing safe, legal abortion in cases of fatal foetal abnormality amounts to cruel, inhuman, and degrading treatment. Restricting abortion on this ground takes away the already limited options open to Polish women faced with unwanted and/or difficult pregnancies.

The Political Context

The ruling comes in the wake of repeated attempts by Poland’s right-wing governing party, the Law and Justice Party (PiS), to further restrict abortion. Attempts to pass bills that would ban or restrict abortion were made in 2016, 2018, and earlier in 2020, but failed after they were met with nationwide protests. At the end of 2019, a group of 119 MPs requested that the PCT assess the constitutionality of abortion for foetal abnormalities.

However, the PCT is viewed as a ‘government enabler’ as opposed to a check on the executive, after the government changed the process of judicial appointments in 2017, allowing them to flood the courts with their own candidates. There have been a series of applications to the ECHR in relation to judicial independence alleging Article 6 violations, and the European Commission have instigated proceedings against Poland over the new judicial appointment process. Fourteen out of the fifteen PCT’s judges were appointed by PiS, raising the question of whether this recent ruling was an alternative way for the government to implement the abortion ban they were unable to pass through legislative means.

The Polish government have indefinitely delayed publishing the PCT’s ruling (which is required in order to pass it into law) due to significant protests that have place in the weeks following the judgment. However, as the Tribunal’s decisions are binding and there is no opportunity for appeal, there appears little recourse for affected women; the European Commission has avoided commenting on the ruling, despite calls from MEPs to take action against Poland. It is also unlikely that the ECHR would find Poland in violation of human rights for rolling back access to abortion, as the Court has typically avoided directing states to provide for abortion where it is not already legal.

While the state has curtailed access to abortion, groups such as Women on Web and Abortion Without Borders already help Polish women access abortion pills, travel abroad, and offer funding to those unable to fund the journey. This ruling thus will not prevent women from obtaining abortions, but it will make accessing abortion care much more difficult for many women, particularly in a pandemic that has led to increased restrictions on travel.