Constitutionality of Abortion: Legal Analysis of the Recent Case in Poland

Piotr Szymaniec holds the degree of Habilitated Doctor of Law from the University of Wrocław. He is a professor at the Institute of Socio-Legal Studies at the Angelus Silesius University of Applied Sciences in Wałbrzych (Poland)

The judgement of the Polish Constitutional Tribunal on the controversial issue of limiting the admissibility of abortion was passed on October 22, 2020. It aroused great social emotions. There were stormy demonstrations in major Polish cities, which—despite the restrictions related to the COVID-19 pandemic—lasted over a week. After the protests, the Polish government decided not to publish the judgment until the majority opinion was prepared. Finally, the majority opinion was made public on January 26, 2021. The next day, the judgment was officially published in the Journal of Laws and thus began to produce legal effects. This time it did not raise major public protests, with the exception of mass protests in Warsaw. In this article, I will indicate what the controversial judgment really contained and show the reasoning of the Constitutional Tribunal. However, I will start with a brief introduction on the history of the legal regulations on abortion in Poland. This issue is very important for understanding the content and context of the judgment.

The 1997 Abortion Case

In 1918, when Poland was re-established as an independent state, the prohibition on abortion, provided for by the still binding Austrian, German and Russian law, was in force. The Criminal Code of 1932 defined abortion as a crime for which both the woman having an abortion and any person assisting her in any way could be criminally liable (articles 231, 232, 234). At the same time, a narrowly defined catalog of cases in which abortion was permissible was introduced. The regulation on abortion was relaxed in 1956, at the very end of the Stalinist period in Poland.

Since then, abortion has been permitted in Poland without any major restrictions. This state of affairs was changed as a result of the adoption of a fairly restrictive Act of January 7, 1993 on family planning, protection of the human fetus and conditions for the admissibility of termination of pregnancy. In 1996, the left-dominated Parliament re-relaxed abortion laws. However, this amendment was found to be unconstitutional to a large extent by Constitutional Tribunal’s judgment of May 28, 1997 (case No K 26/96).

In particular, the Court questioned the provision allowing abortion when the woman was “in difficult living conditions or in a difficult personal situation.” The Tribunal stated that the constitutional provisions protect human life, regardless of the development phase in which this life is found. In the opinion of the Tribunal, there are no grounds for differentiating the protection of life depending on whether it concerns a person who is already born or a child who is yet to be born. The judgement caused that abortion was only permissible in three cases, namely when “pregnancy poses a threat to the life or health of a pregnant woman,” “prenatal tests or other medical indications indicate a high probability of severe and irreversible impairment of the fetus or an incurable life-threatening disease,” and when “there is a justified suspicion that the pregnancy resulted from a criminal act” (article 4a para. 1 of the act of January 7, 1993).

The 2020 Abortion Case

In 2019, a group of 118 members of the lower chamber of Polish Parliament, representing right-wing parties, submitted a request to the Constitutional Tribunal for examination of the second of the above-mentioned exceptions with the Constitution, i.e. regarding the admissibility of abortion when there is a high probability of severe and irreversible impairment of the fetus or an incurable disease that threatens its life. According to this group of MPs, this very provision allowed for eugenic abortions, for instance, in cases where it is probable that a child would be born with Down Syndrome. The application of the MPs was supported by the Minister of Justice and the Speaker of the lower chamber of Parliament (both representing the ruling coalition). The Polish Ombudsman did not take a position on the matter.

The Constitutional Tribunal found the above-mentioned exception contrary to three articles of the Constitution of April 2, 1997: Article 38 (protection of life) in connection with Article 30 (the inherent and inalienable dignity of a human being) and Article 31 para. 3 (proportionality clause). In the majority opinion, the Tribunal presented a brief history of eugenics and stated that the analyzed case concerns “liberal eugenics”, i.e. genetic manipulations performed not at the request of the state (as was the case with eugenics in the interwar period), but at the request of private persons, especially parents. The effect of genetic manipulation would be “a human individual of the best quality” (point III.2.3 of the majority opinion).

In the majority opinion there are no references to religion and the only reference to ethics or ethical theory concerns the concept of “liberal eugenics.” The justices strongly emphasized that their reasoning is based solely on legal argument taken from the Constitution of 1997, not from any religion. Materials from the preparatory work on the Constitution are cited extensively in order to indicate how the provision on the protection of human life was shaped. The Tribunal recalled its earlier jurisprudence on the notion of dignity. It must be emphasized that this jurisprudence is largely based on the understanding of human dignity, developed in German constitutional-law doctrine and case law of the Federal Constitutional Court. Therefore, the so-called “object-formula” (Objektformel), emphasizing that human beings cannot be treated as mere objects, is often utilized. In the abortion case, the Tribunal stressed the linkage between dignity and the protection of life. In fact, this linkage had already been put forward in the case concerning the destruction of an aircraft used as a tool of a terrorist attack (judgement of September 30, 2008, No K 44/07). The novelty of the analyzed judgment is that it emphasized the dignity of a child who has not yet been born. The language used in the judgment is also significant. The term “unborn child”, rather than “fetus”, was consistently used. The justices wrote:

the development of a person and her personality is a gradual process that extends to the period before and after birth. This means that the dignity that is innate and inalienable, and consequently the legal protection of life, cannot be arbitrarily limited to a fully formed human being, or [acquired] from a specific moment in the child’s development in the prenatal phase (point III.3.3.2).

The Tribunal found this restriction on the legal protection of life contrary to the principle of proportionality specified in Article 31 para. 3 of Polish Constitution (point III.4.2).

The Tribunal stated that because of the phrase “a high probability of severe and irreversible impairment of the fetus,” used in Article 4a of the 1993 Act, abortion was permitted if there was only a “high probability” of impairment of the fetus, rather than certainty about it. Moreover, it was emphasized that modern medicine makes it possible to successfully perform an operation on a fetus in the womb (point III.2.2.). Therefore, in Tribunal’s view, the premise of a high probability of the fetus’ impairment as a justification to restrict the right to life is not sufficient. The Tribunal also stated that the challenged provisions also allowed for an abortion in cases where the defect of the fetus did not endanger its life in any way, therefore the right to life was disproportionately limited. As it was strongly emphasized in the judgment, “a child not yet born, as a human being—a person who enjoys innate and inalienable dignity—is a subject equipped with the right to life…” (point III.3.4 of the majority opinion). Only as a kind of obiter dicta, the Tribunal pointed out that the legislator cannot transfer the entire burden of bringing up a disabled child to its mother (point III.6).

It should be emphasized that the Tribunal only questioned one of the circumstances in which abortion was permissible in Poland. In the other two cases, i.e. when the pregnancy threatens the life or health of pregnant woman and when the pregnancy is a result of a crime, abortion is still possible. The issue of abortion is also controversial among the justices of the Constitutional Tribunal. As many as 5 out of 15 justices wrote separate opinions, two of them concurring and the rest dissenting.

The Debates in Progress

The issue of abortion will continue to be controversial in the Polish society. The purpose of my text is not to evaluate the judgment, since such an evaluation depends on the worldview and system of values of the person who evaluates, but I restricted myself to summarizing the arguments presented in the judgment. I would like to add only that in November 2020, just after the Constitutional Tribunal’s judgment was issued, the President of Poland sent Parliament his own project of amending the 1993 Act. According to this amendment, abortion would also be permitted, when “prenatal tests or other medical indications indicate a high probability that the child will be born still or burdened with an incurable disease or defect, leading inevitably and directly to the death of the child, regardless of the therapeutic measures used.” This draft is currently being discussed in Parliament. In the future we will see what the ultimate shape of the abortion law in Poland will be.