On 22^nd October 2020, the Polish Constitutional Tribunal (CT) held unconstitutional a statutory legal provision, which had previously allowed women to access abortion on the grounds of fatal foetal abnormality. The provision under review, Article 4a para 1 (2) of the Act for Family Planning and the Protection of the Foetus (1993), had decriminalised abortion in cases where there was ‘a medical indication that there existed a high risk that the foetus would suffer severe and irreversible impairment or an incurable illness that could threaten its life’. Subsequent to the above decision, there now remain two legal grounds for abortion:  a) where the pregnant woman’s life or health is at risk; b) where the pregnancy is the result of an illegal act (rape or incest). This judgment places the Polish abortion regime amongst the most restrictive in Europe, after Andorra, Malta and San Marino, where abortions are prohibited on all grounds. It brings it close to the regulations in Liechtenstein, where abortion is only allowed in cases where a woman’s life or health is at risk or the pregnancy is the result of sexual assault. However, it is important to note that – unlike other jurisdictions – Polish criminal law only imposes sanctions on those who perform or assist in abortion, and not on persons having an abortion.

In the above decision, the Tribunal found that the protection of every person’s life guaranteed in Art. 38 of the Polish Constitution 1997 (PC 1997) encompassed the entire ‘biological existence of the human being’ from the moment of conception. Employing a wide interpretation of this provision, read in conjunction with Art. 30 guaranteeing respect for human dignity, the judges came very close to equating the constitutional provision for the ‘legal protection of everyone’s life’ with the right to life of the foetus. The Tribunal suggested that, for abortion to be justified, it needs to meet the standard of “absolute necessity”, which was taken to mean that the protection of the life of the foetus cannot be limited in order to protect rights and values of ‘lower standing’, which include the right to property, other economic rights and even the health of others. At the same time, the constitutional rights of women, including the guarantee of human dignity (Art. 30), the right to freedom (Art 31(1), the right to life (Art. 38), the prohibition of torture and degrading treatment (Art. 40), the right to privacy (Art. 47), the protection of health (Art. 68) and the special protection of mothers before and after birth (Art.71(2)) were barely mentioned in the judgment. The reasoning employed by the Tribunal inherently raises questions about the constitutionality of the remaining legal provisions that allow abortion. In fact, it creates a situation in which abortion rights can now easily be subject to further curtailment.

Poland goes where Ireland and Northern Ireland used to be…

The legal situation created by the judgment of the Polish CT may trigger comparisons with the past abortion laws in Ireland and Northern Ireland (NI). Before the adoption of the Northern Ireland (Executive Formation etc) Act 2019, in NI sections 58 and 59 of the Offences Against the Person Act 1861 prohibited attempts to cause a miscarriage, with the exception of terminations conducted ‘in good faith for the purpose only of preserving the life of the mother’. These sections criminalised both women and service providers. Over time, the case law concerning abortions gradually created a situation in which terminations were permitted in cases in which there was a risk of real and serious long term or permanent adverse effect on the physical or mental health of the woman. However, the use of the health ground to justify abortion became increasingly infrequent as abortion became more politicised. In the year prior to decriminalisation, the number of abortions performed in NI annually had dropped from approximately fifty to just over twelve. Similarly, while the law in Poland allows access to abortion in cases where the life and health of the mother are at risk, in practice, the number of abortion services officially provided on this ground in hospitals is extremely low (thirty-three abortions in 2019). More importantly, doctors making decisions about abortions usually interpret “the health of the mother” narrowly, with an almost exclusive focus on physical health. Consequently, risk to mental health is in practice not considered a ground for abortion. However, the law in Northern Ireland was eventually changed because of the mounting pressure on the UK government to bring the law into line with the rest of the UK. An important argument in these debates was the fact that the prohibition of abortion in cases of foetal abnormality was seen to violate the ECHR and CEDAW. The Polish judgment marks a trend in the opposite direction.

The legal reasoning in the Polish decision means that the Polish abortion regime has moved towards the regulatory situation that existed in the Republic of Ireland before the repeal of the 8^th Amendment in 2018. For decades, Article 40.3.3º of the Irish Constitution stated that: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ This provision was subsequently limited in Attorney General v. X (1992), the case of a teenage girl who was at risk of suicide, the Supreme Court found that abortion travel to England was permissible in such circumstances. Abortion was only legal if there was a ‘real and substantial’ risk to the life of the mother and that risk could ‘only’ be avoided by terminating the pregnancy. In this legal situation, it became the norm for doctors to wait until the risk to the woman was absolutely clear before intervening. A similar process could now be expected in Poland. Furthermore, the Thirteenth and Fourteenth Amendments to the Irish Constitution introduced in 1992, which explicitly gave people the right to travel abroad for an abortion, and to receive information in Ireland about abortion services available abroad. Travel for and access to information regarding abortion services are also considered lawful in Poland today. The fact that in 2019 only 1100 abortions were officially performed in Poland  suggests that – very much like in Ireland in the past – the only option for Polish women is to travel abroad.

The UK is a popular destination for Polish women who seek to access lawful abortion services. At the moment, the UK government suggests that, after December 2020, EU citizens will be able to enter the UK for tourist purposes without a Visa. However, the prospect of a “No-Deal” Brexit risks undermining the confidence of Polish women in their ability to access treatment in the UK. Consequently, a trade deal between the UK and the EU – or lack thereof – may have human rights consequences that are not frequently foreseen. For those seeking access to lawful abortion services in the UK, it is important that the UK government makes a clear commitment that Brexit will have no negative implications for their position.

Crucial constitutional questions

Apart from its consequences for access to abortion, the recent judgment raises two far-reaching questions concerning the rule of law and the proper functions of constitutional organs in a democratic society.

The first question was addressed by two judges who submitted dissenting opinions. These judges criticised the majority judgment for showing complete disregard for the rights and well-being of the mother, for the potential suffering of children born with severe abnormalities, and for the families of such children. However, they also claimed that the Tribunal had acted ultra vires, as, by striking down the provision of Article 4a para 1(1), which decriminalises a certain type of activity, it had established a new type of criminal offense in the Criminal Code. This in turn, they argued, violated the Polish Constitution of 1997, which requires that new offenses be created exclusively by legislative acts (Art. 41(1)). According to the dissenting opinions, the CT had in recent years become an instrument utilised by politicians to change legislation in controversial matters, where attempts in Parliament to revise legislation or the Constitution had been unsuccessful. On this analysis, the majority judgment allowed legislative changes to be introduced through the back door, permitting the CT to exercise powers beyond its designated constitutional role, categorised in constitutional literature as those of a ‘negative legislator’.

The background to this dissenting opinion in Poland is a matter of high importance and it has significant implications that reach well beyond the political situation in Poland. During the process of political transformation in the late 1980s and 1990s, the CT frequently played an important role in promoting norms likely to stabilise democratic institutions, at times operating in environments in which the limits of its constitutional competence were not yet fully defined (See: Sadurski, Wojciech (2019) ‘Polish Constitutional Tribunal under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler’, Hague Journal on the Rule of Law 11:63–84, and Osiatynski, Wiktor (1994) ‘Rights in new constitutions of East Central Europe’, Columbia Human Rights Law Review 26: 112-165).

By contrast, in recent years the CT has been strongly affected by very selective and strategically politicised appointment procedures. The result of this is that the CT has been exploited to pursue the political objectives of the current government, whose commitment to democratic values is at least a matter of dispute. In this respect, Poland starkly exemplifies a phenomenon, which is now common in a number of post-transitional societies (e.g. Hungary, Brazil). It illustrates what can happen to activist courts, which typically acquire authority under progressive governments, in circumstances where their competences are harnessed to the interests of governing parties whose recognition of democratic processes and procedure is less certain. It thus raises a question of how the position of such courts can be adequately constitutionalised. (A similar question is raised in Kim Lane Scheppele’s analysis of constitutional borrowing in transitional and post-transitional states; see: Kim Lane Scheppele (2013) ‘Commentary:  The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work’, Governance, 26: 559-562).

The second question raised in the judgment concerns the legitimacy of the CT as a whole. The Helsinki Foundation for Human Rights has argued that, according to Polish constitutional law, the recent decision taken by the judges currently sitting in the CT should not be recognised as a judicial ruling and it does not have legal force. On this interpretation, the judges have been appointed to the court in violation of constitutionally prescribed procedure. This problem has been discussed in great length by the Venice Commission of the Council of Europe. The Helsinki Foundation for Human Rights called upon doctors and hospitals to ignore this judgment. However, some members of the legal establishment, like Ewa Łętowska, have argued that, while the fact that the judgment has not been published is in violation of the PC 1997, the judgment nonetheless remains a valid judgment. Given that the Public Prosecution Service in Poland is hierarchically subordinate to the government, we can expect a rise in criminal litigation against healthcare professionals. The outcomes of such cases are difficult to predict. More defiant members of the judiciary may be inclined to dismiss them. However, based on anecdotal evidence, courts are more likely to suspend initiated proceedings in anticipation of the publication of the Constitutional Tribunal judgments. This uncertainty will inevitably have a further chilling effect on the provision of abortion services in Poland.

Reproductive Rights and Democracy

One point that comes into view in the current political situation in Poland is the relation between reproductive rights and democracy. Academic literature on the importance of protection for basic rights in transitional and post-transitional societies typically emphasises the significance of rights with obvious political or perhaps also socio-economic implications. In Poland, however, it is possible to observe how disregard for reproductive rights both reflects and in turn intensifies weaknesses in democratic culture, and it contributes to the broader erosion of legitimate institutions. As a result, it makes clear that adequate protection of reproductive rights cannot be viewed as a marginal aspect of democracy and that such rights are an essential element of the legal fabric of a democratic society.

We can see this for a number of reasons.

First, it is difficult to classify as democratic a state in which the rights and freedoms of half of the population can be subject to arbitrary curtailment. Reproductive rights contain implications that affect the interests of certain, often vulnerable, groups with such intensity that it is at least arguable that a strong democracy will provide particularly robust protection for such rights. As we can see in Poland, the disregard for or the violation of such rights can often go hand in hand with the violation of rights required and exercised by other vulnerable minority groups. That is to say, the recent decision reflects a wider political landscape, in which tolerance of ethnic, sexual, and religious minorities is visibly diminishing.

Second, restrictive abortion regimes almost invariably stimulate illegal medical practices, giving rise to the phenomenon known as the ‘abortion underground’. Such regimes also have a chilling effect on official medical practices. This in turn can undermine general confidence in legal principles and procedures; self-evidently, it can also undermine confidence in medical organisations. In both respects, public regard for institutions that are fundamental to functioning democracies is likely to be diminished. At the very least, more research is needed into the correlation between the attempts to restrict abortion law and the emergence of anti-democratic governments.

Since 1989, Poland has been widely heralded as a key example of a state that underwent a successful transition from authoritarianism to stable constitutional democracy. Many people have been shocked by the rapid decline of the rule of law and the weakening of democratic principles in recent years. The recent judgment of the Constitutional Tribunal demonstrates that reproductive rights can often provide a litmus test for the effective institutionalisation of democracy, especially where it has uncertain foundations.

I would like to thank Alison Young, Michael Gordon, Mairead Enright and Chris Thornhill for their very helpful comments and suggestions.

Dr Atina Krajewska, Senior Birmingham Fellow, Birmingham Law School, University of Birmingham

(Suggested citation: A. Krajewska, ‘The judgment of the Polish Constitutional Tribunal on abortion: a dark day for Poland, for Europe, and for democracy’, U.K. Const. L. Blog (12th Nov. 2020) (available at https://ukconstitutionallaw.org/))