The Constitutional Tribunal in Poland has granted a request by more than 100 right-wing conservative MPs and declared abortions, even on account of severe foetal defects, to be unconstitutional. The ruling paves the way for a further tightening of the Polish abortion law, which is already one of the strictest in the European Union. In the future, abortion will only be allowed in cases of rape, incest, or a serious health threat to the mother. The court’s decision was met with intense objections from the opposition and society and triggered mass protests throughout the country.
Advocates of a liberalised abortion law point out that the Constitutional Tribunal’s decision almost completely bans legal abortion in the strictly Catholic country. Indeed, the vast majority (around 98 percent) of abortions performed in Poland every year are performed because of foetal defects.
Dunja Mijatovic, Commissioner for Human Rights of the Council of Europe, criticised the court decision. On Twitter she wrote: “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.”
According to the Tribunal, abortions of disabled fetuses violate the dignity of human life, a principle enshrined in the Polish Constitution. Such abortions also violate the principle of non-discrimination and respect for human life.
Polish President Andrzej Duda, who is close to the ruling national-conservative “Law and Justice” (PiS) party, immediately welcomed the ruling. According to Duda, abortion should not be allowed in Poland “for eugenic reasons”, as every child has the right to life.
Criticism on the Court Ruling
Jaroslaw Kaczynski, deputy prime minister and chairman of the ruling PiS party, had already advocated a tightening of the abortion law on several occasions in the past. However, earlier legislative proposals in this direction in 2016 and 2018 were met with mass protests by women, the so-called “black protests”. These mass protests, in which tens of thousands of participants wore black clothes matching the motto, had forced the PiS to abandon its plans. According to some observers, the PiS now referred the abortion issue to the constitutional tribunal in order to avoid direct political responsibility for the abortion restrictions.
A number of Polish and international human rights groups, as well as a large part of the Polish opposition, condemned the court decision, which violates the human rights of women and endangers their health and life. “The European Commission and EU member states should urgently address breaches of rule of law and their impact on fundamental rights in Poland. Ensuring women’s human rights, including their reproductive rights, is essential to upholding EU values,” said Hillary Margolis, senior researcher on women’s rights at Human Rights Watch.
According to Sejm deputy Barbara Nowacka, the court ruling means that “the life and dignity of women are less important than the life of a foetus”. Borys Budka, leader of the largest opposition party “Civic Platform”, called the ruling “inhumane”, saying it would create “a hell for Polish women”.
“This illegal and politicised order is an attack on the fundamental rights of women and a direct threat to their health and lives,” said Monika Rosa, Member of Parliament of the liberal party Nowoczesna. She added that the European liberal ALDE party has decided to send a letter to the Polish Parliament asking it to reject the decision of the Constitutional Tribunal.
Several polls have shown that only a small part of Polish society is in favour of further restrictions on abortion.
Thousands Protest in the Streets
Many commentators point to the link between the court ruling and the Corona pandemic. Since mass demonstrations are generally limited due to the pandemic, there could hardly be a more favourable moment for the Polish national conservatives in government to impose abortion restrictions. Under the pretext of combating the pandemic, the Polish government already restricted demonstrations against the tightening of abortion law in spring this year.
However, despite the ban on assembly due to Corona, thousands of Poles have been taking to the streets since Thursday evening, to protest against the ruling. Slogans such as “Fight the virus, not the women” or “You have blood on your hands” are written on the banners.
After protesters also gathered near the house of Jarosław Kaczyński in Warsaw on Friday last week, the police blocked the surrounding streets and used tear gas against the protesters.
The nationwide protests continue this week. In some cities, young women in particular are blocking several central roundabouts at rush hour, paralysing traffic. At the weekend, some protesters demonstrated outside Catholic churches and church services were disrupted by activists.
Some commentators stress that the ruling has not yet been published and is therefore not yet final. According to “Rzeczpospolita” it could remain so until a new compromise on abortion law has been found, as there are voices even in the conservative camp who have reservations about tightening the abortion ban. According to Polish media, PiS politicians had already announced a “nuanced” regulation which could refrain from an absolute ban on abortion in the case of serious damage to the foetus.
Rule of Law at Stake
The ruling PiS party has come into conflict with the European Union on several occasions in the last five years, because of its controversial judicial reform, which undermined the independence of the Polish courts, as well as its attacks on the rights of minorities and women. Now the ruling could worsen the already strained relations between Warsaw and Brussels.
The Constitutional Tribunal is often considered illegitimate by critics of the government, accusing it of being under the influence of the ruling PiS. As a result of the judicial reorganisation, eleven of the twelve judges were appointed by the government majority in a legally and politically controversial procedure. The President of the Court, Julia Przylebska, is a long-standing personal friend of Jarosław Kaczyński. The European Commission also considers the takeover of the judiciary by the ruling party as a violation of the rule of law and separation of powers.
The fact that the Constitutional Tribunal has now been given the power to regulate abortion is described by some observers as further evidence of the instrumentalisation of the courts for political purposes in Poland, which could also be seen as a dangerous precedent. They stress that laws which will not have a clear majority in the Polish Parliament could continue to be enforced in the future with the help of the pro-government courts.
Natálie Maráková is project manager for Central Europe and the Baltic States at the Foundation’s office in Prague.