POLAND’S NEW ANTI-ABORTION LEGISLATION
Historically, Poland has subjected its women to some of the strictest abortion laws in the European Union. On 22 October 2020, the situation became even more severe when the Constitutional Tribunal, consisting mainly of judges appointed by the ruling party Law and Justice (PiS), decided that abortions in cases of foetal defects were unconstitutional. What this means in practice is that women in Poland will now only have access to a lawful abortion in cases of rape, incest, or if their life is endangered, making Poland one of only two European Union member states that do not allow abortion on request or on broad social grounds.
Prior to this ruling, abortion was legal in situations of “severe and irreversible foetal defect or incurable illness that threatens the foetus’ life”. However, even when a lawful abortion encompassed foetal defects as acceptable legal grounds, women in Poland were still unable to rely on broad economic or social reasons as the legal basis for it, which is the prevailing reality (and legal ground) for abortions in most European countries.
PUBLIC OUTCRY AND INTERNATIONAL CRITICISM
Following the court’s decision, the European Council’s Commissioner for Human Rights took to Twitter to express her sorrow over the court’s ruling and warned that the new law amounts to a ban and violates human rights, as it is forcing women to either resort to abortion travel (assuming they can afford it) or go underground and seek out illegal, unregulated, and unsafe abortion services. Prominent human rights organisations, specifically Amnesty International, the Centre for Reproductive Rights, and Human Rights Watch were also vocal about their strong disaccord with the court ruling, and called for Poland to act now to bring its law into line with other EU member states by legalising abortion on request or broad social grounds. In a joint statement, the three organisations said they would be monitoring the developments in Poland closely and requested seats in Poland’s Constitutional Tribunal.
The international community was joined in their condemnation by the Polish public who have been flooding the streets in protest against the court’s ruling since its announcement. The public feel that their government is failing women by forcing them to resort to highly unsafe medical practices.
RESTRICTING ACCESS TO ABORTIONS
Poland’s new anti-abortion law has been introduced at a very turbulent time for sexual and reproductive rights in the international arena. Only a few days ago, the United States signed the Geneva Consensus Declaration, a global anti-abortion pact, in a virtual ceremony alongside co-sponsors Brazil, Egypt, Hungary, Indonesia, and Uganda. At first reading, the non-binding declaration seems to echo the Beijing Declaration and Platform for Actions in reaffirming that “the human rights of women are inalienable, integral and an indivisible part of all human rights and fundamental freedoms”. At the same time, the Geneva Consensus Declaration says it seeks to improve women’s sexual and reproductive health through reaffirming that “there is no international right to abortion” and that “family is the natural and fundamental group unit of society” leaving much room for worry among both women the LGBT community.
A LEGAL NECESSITY
The WHO recognised abortion as a serious health problem in 1967 and has repeatedly stated that abortion laws and services should protect the health and human rights of all women. Although having an abortion is not an explicit right under any international treaty, there is a significant amount of caselaw that has been brought before regional human rights protection mechanisms (such as the European Court of Human Rights) and various recommendations and consultations by the United Nations and specialist organisations that suggest that where access to safe and legal abortion is restricted, this can amount to human rights violations for which states can be held liable.
Where access to safe and legal abortions is ensured, several rights are also protected such as the ones described in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. The rights most frequently encountered in abortion cases include the right to life, the right to health, the right to information, the right to privacy, the right to be free from cruel, inhuman or degrading treatment, and the right to non-discrimination and equality.
That being said, each state has the sovereign right to determine how liberal or punitive their domestic legislation can be while making sure individuals’ rights, as recognised by law, are respected, protected, fulfilled, and, when necessary, enforced. In practice, this translates into the positive and negative obligations of a state. By taking positive action to facilitate the enjoyment of human rights, states are fulfilling their positive obligation to protect these rights. By refraining from action that would impede human rights, states fulfil their negative human rights obligations also known as a “duty not to act”. These negative obligations were unfortunately found missing in a plethora of abortion cases before the Strasbourg Court where access to a safe and legal termination of pregnancy was not granted. In addition, according to a 2014 UN report, there is a direct link between higher rates of unsafe abortions and restrictive abortion policies which makes it all the more imperative for states to uphold their human rights obligations.
Three weeks after the Constitutional Court ruling, and with protests still ongoing, the Polish government is yet to officially announce or enforce the new law. Moreover, according to reports and as initially feared, Polish women have resorted to abortion travel to ensure access to safe abortion services. By implementing further restrictions on its female population against the backdrop of an already-narrow legal framework regulating abortions in the country, Poland has taken a step back in the fight for women’s rights. In other words, it is “a sad day for women’s rights”.
Anastasia was previously a UNHCR Legal Intern and a qualified Lawyer admitted to practice in Greece, Anastasia is now navigating the UK’s legal system from a policy role at the Bar Council. Her academic research and areas of interest revolve around women’s sexual and reproductive rights and gender equality. She aspires to be an international human rights lawyer admitted to practice in multiple jurisdictions.