Thousands of women marched to the streets in Poland demanding the reversal of a recent decision by Poland’s constitutional court that drastically restricts their right to access safe and legal abortions. Poland’s abortion laws were already considered some of the strictest in Europe and once the court’s decision is enacted, abortions will only be permitted in cases of rape, incest, or if there is a threat to the mother’s life.
Considering that the vast majority of abortions before the decision were performed based on foetal abnormality, the judgment amounts to a de facto ban on abortions in Poland. This article highlights how such politicization of women’s health and bodily autonomy leads to discrimination against them, particularly concerning their right to access health services and the resulting preventable ill health, including maternal mortality and morbidity.
Contentious Abortion Laws in Poland
Poland’s tumultuous history has made its ties to the Catholic Church stronger as Poles often relied on the Catholic faith and Church to strengthen their national identity and to increase the country’s stability. The Church has played a pivotal role in shaping and dictating the social as well as the political lives of its citizens. According to the Catechism of the Catholic Church, abortion is tantamount to sin and is strictly prohibited. Until 1932, there was a complete ban on abortion in Poland owing to strong Catholic beliefs.
By the way of an ordinance in 1993, The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act were introduced in Poland. Under Article 4a of the Act, the legislature laid down three exceptions namely; (a) if the pregnancy is due to the result of an unlawful or criminal act, (b) if the pregnant woman’s life or health is in danger and (c) if there exist some severe and irreversible foetal defect or incurable illness that threatens the foetus’s life or foetal abnormalities.
In 2016, the Law & Justice (PiS) Party pushed to strengthen the already tight abortion laws by introducing a bill in Parliament to drop the exception relying on foetal abnormalities. However, much to the government’s dismay, the country then witnessed the largest protest, Strajk Kobiet, since the fall of communism in Poland in 1989 and the law had to be abandoned altogether.
Recently, the constitutional court ruled abortion taking place on the ground of foetal abnormalities as unconstitutional. It is pertinent to note here that since 2017 the PiS Party has nominated 9 out of 14 judges in the Constitutional Tribunal. Notably, 98% of the legal abortions that take place are on the ground of foetal deformities which invariably results in the ruling being a de facto comprehensive ban on abortion in Poland.
Human Rights and the Lack Thereof
The constitutional court’s decision has received a lot of criticism from the international community as it results in, inter alia, a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides for various rights such as the Right to Prohibition of Torture, Right to Liberty and Security and the Right to Respect for Private and Family Life through Articles 3, 5 and 8 respectively.
Additionally, the European Court of Human Rights [the Court] through a series of cases has discussed Poland’s deeply problematic abortion policies. For instance, in P. and S. v. Poland (2012) the Court outlined standards for the rights of adolescents to access reproductive health services. Similarly, in Tysiąc v. Poland (2007) and R.R. v. Poland (2011), the Court remarked on Poland’s failure to provide enforceable access to legal reproductive health services, including abortion and genetic prenatal testing as amounting to violations of the state’s positive obligations under Article 8. Notably, the Court in R.R. v. Poland, for the first time held that an abortion-related violation, such as a deliberate delay in providing legal genetic testing, when considered along with the extreme vulnerability of the woman seeking the services, amounted to inhuman and degrading treatment and constituted a violation of her rights under Article 3 of the European Convention.
Other human rights mechanisms have duly recognized women’s right to abortion in cases of fatal foetal impairment and mandate States to provide for termination of pregnancy in such cases. Poland, as a State Party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR) has a legal obligation to uphold these international human rights standards and the legal framework they articulate for the protection of women. The contractual dimension of the treaty ascribes to it binding legal force and requires each State Party to be obligated to every other State Party to comply with its undertakings under the treaty.
The CEDAW Committee through General Comment 35 has explained that “Violations of women’s sexual and reproductive health and rights, such as the criminalization of abortion, denial or delay of safe abortion and/or post-abortion care, and forced continuation of pregnancy, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.”. Moreover, the constitutional court’s decision falls in complete disregard of the observations of the United Nations Human Rights Committee’s [HRC] General Comment 36 on Article 6 of the ICCPR which in paragraph 8 categorically requires every State party to effectively protect the lives of women against the mental and physical health risks associated with unsafe abortions and to not regulate pregnancy or abortion in a manner that runs contrary to their duty to ensure that women do not have to undertake unsafe abortions as that would invariably lead to higher medical risks.
The General Comments, albeit not binding, clarify how States that have ratified the Covenant suppose to protect the rights therein. Moreover, HRC’s General Comment 31 under paragraph 2 postulates that every State Party has a legal interest in the performance of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations.
According to General Comment 33, HRC’s views exhibit ‘some of the principal characteristics of a judicial decision’ with a ‘duty to cooperate with the Committee’ arising from an application of the principle of good faith to the observance of all treaty obligations. This carries greater significance in light of the International Court of Justice’s [ICJ] observation in Diallo in 2010 that the Court ‘should ascribe great weight to the interpretation adopted by the Human Right’s Committee that was established specifically to supervise the application of that treaty’ and thus constitutes a subsidiary source of law pursuant to Article 38(1)(d) of the ICJ Statute.
Therefore, as a State Party, Poland must remove any existing roadblocks when such measures would act as a barrier to access safe and legal abortion which includes barriers resulting from healthcare providers’ “conscientious objection”.
This becomes pertinent considering abortion is a highly safe and reliable medical procedure when performed by skilled health care providers in safe and sanitary conditions. Contrarily, “illegal” abortions, performed without safeguards, are usually unsafe and therefore can result in a greater degree of complications as well as to maternal deaths and morbidity. The World Health Organization [WHO] estimated that the legality of abortion does not correspond to the number of induced abortions, since women seek abortion regardless of its lawful availability or legal status. Estimates also suggest that around 47,000 women die each year as a result of unsafe abortions, which also cause some form of disability to an additional five million women.
Considering the pronounced impact of unsafe abortion on morbidity and maternal mortality, the access to safe, legal and effective abortion on broad socioeconomic grounds is essential to women’s enjoyment of their most basic human rights including, in particular, to health, privacy, and their right to life. Since the abovementioned treaties protect all such rights, issues of compliance with and the enjoyment of the rights guaranteed through these treaties are matters of international concern and thus are no longer exclusively within the domestic jurisdiction of Poland.
The constitutional court’s decision revolves around the consideration of the rights and interests of the foetus. Taking an expansive interpretation of human dignity, the judges held that the protection of life guaranteed in Art. 30 encompassed the entire ‘biological existence of the human being’ from the moment of conception. However, the CEDAW has affirmed: “under international law, analyses of major international human rights treaties on the right to life confirm that it does not extend to foetuses.” Such judicial avoidance and contestation invariably undermines the normativity of the treaty bodies’ findings and discourages other courts from having recourse to them, and diminishes the overall influence of the UN human rights treaty monitoring bodies themselves. This is yet another opportunity for the international community especially the EU and the Council of Europe to step up and oppose continuous violations of reproductive rights in Poland.