Poland is one of the European countries with the strictest abortion laws. The recent judgment from the Polish Constitutional Tribunal further restricted access to abortion. Announced amid the global COVID-19 pandemic, this decision divided Polish people, who took to the streets in massive nationwide demonstrations. What has since happened with the decision and what is the status of abortion law in Poland?

DECISION OF THE CONSTITUTIONAL TRIBUNAL

On 22 October 2020 the Polish Constitutional Tribunal declared one of the three exceptions allowing legal abortion unconstitutional. Abortion where prenatal tests indicate a high probability of severe and irreversible impairment of the foetus or an incurable life-threatening disease is thus no longer allowed. Consequently, abortion is now only available in two instances: where the pregnancy poses a threat to the life or health of a woman or when the pregnancy resulted from a prohibited act such as rape or incest. 

Furthermore, the judgment of the Constitutional Tribunal potentially creates other inconsistency in the current legal regulations. Where the termination of pregnancy due to irreversible impairment of a foetus is considered contrary to the Constitution and unacceptable because it is prejudicial to the absolutely protected life of a foetus, there is no logical justification for leaving the remaining two reasons for termination of pregnancy. 

This would for example lead to questions of whether a foetus conceived as a result of a prohibited act deserves less protection than an irreversibly handicapped foetus? If the absolute protection of the life of a foetus is the overriding consideration, it would mean that termination of pregnancy resulting from a prohibited act should also be considered contrary to the Polish Constitution. The judgment is concerning, and it seems to have paved the way for banning and penalising abortion in the remaining two circumstances.

However, this is not the only problem and certainly not the end of controversies caused by the decision of the Polish Constitutional Tribunal. The Polish government decided that it is best to delay the publication of the judgment until the tension and public unrest caused by the decision quiet down, despite recognising that the ruling would already be in force. This delay is causing confusion and uncertainty as to what the abortion law is at present.

ENTRY INTO FORCE AND PUBLICATION OF THE DECISION

According to the Polish Constitution, a judgment of the Constitutional Tribunal should enter into force automatically, without any statutory changes, upon the publication of the decision in the Journal of Laws. It should also be published in the Journal of Laws without delay. However, in the present case, it has been over a month since the Constitutional Tribunal announced its judgment, yet it has not been published.  

On 1 December 2020, the government issued a statement taking a position on the date of publication of the judgment of the Constitutional Tribunal. It correctly affirmed that the decision of the Constitutional Tribunal is subject to publication in the Journal of Laws. Nevertheless, referring to the protests that have been taking place all over Poland, it explained that publication is not allowed in “a situation that bears the hallmarks of a state of higher necessity”. The statement goes on to say that “the situation of serious social tensions requires analysing the appropriate date of the publication”. 

The statement notes that “the Prime Minister may not decide not to publish the judgment of the Constitutional Tribunal under the applicable procedure,” but that “there is no regulation obliging the Prime Minister to publish the judgment of the Constitutional Tribunal within a specific number of days or a specific date”. Consequently, the government in the statement notes that the judgment of the Constitutional Tribunal would be published immediately after the publication of a justification by the Constitutional Tribunal of its decision. According to the government, the publication of the decision together with the explanation, will “minimise the doubts of citizens about legal consequences of the judgment”.

Nonetheless, the lack of official publication of the text of the Constitutional Tribunal’s judgment, contributes to increased chaos and legal uncertainty when it comes to abortion laws. It may be assumed that the reason behind the delay is to ensure an appropriate majority support in the lower house of the Parliament for an amendment introduced by the President of Poland, Andrzej Duda, or for some other new law. However, it is doubtful whether this will lead to fewer tensions.

POLITICISATION OF THE CONSTITUTIONAL TRIBUNAL

The President proposes to amend the Act on Family Planning, Protection of the Human Foetus and Conditions for Permitting Termination of Pregnancy. This amendment would reintroduce a third exception, which would allow abortion only in cases of the most severe lethal foetal defects. In this way, the government hopes to minimise the public unrest caused by the ruling of the Constitutional Tribunal through a “generous” legislative proposal. The President has submitted the draft to the lower house of the Parliament for a first reading.

It is not the first time the Polish Constitutional Tribunal has allowed for legislative changes to be introduced through the back door. Since 2015, the Constitutional Tribunal has been strongly affected by selective and strategic politicised appointments. It subsequently became an instrument used by the ruling party to change legislation in controversial matters where attempts in Parliament to revise legislation or the Constitution had been unsuccessful. 

In the meantime, and until the judgment is published, abortion, including the exemption deemed unconstitutional by the Constitutional Tribunal, remains legal. However, women already feel the repercussions of the not yet published judgment, as many hospitals began cancelling scheduled abortions the day after the tribunal’s decision.

The radical abortion ruling is evidence of the tragic situation in Poland. Captured by the ruling party and with questionable legitimacy, the pseudo-constitutional court fails to protect the inherent inalienable rights of women. This latest decision breaches the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the case-law thereunder, numerous international Conventions to which Poland is signatory, as well as the Constitution of the Republic of Poland.

Anna is focused on becoming a Barrister specialising in Public Law and to this end will be part of the second intake for the BTC at the ICCA in Jan. 2021. She holds a first class honours Bachelor of Laws degree from Middlesex University, and honours Master of Laws in US and Global Legal Studies degree with certificate in Public Law from Case Western Reserve University in Ohio, United States of America. Anna is dedicated to pursuing a legal career focused on promoting democracy, human rights and justice for all, ensuring that elected leaders, as well as all citizens, comply with and are afforded the protections guaranteed by the rule of law.

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