Agnieszka Kubal
Many believe that the nomination of Amy Coney Barrett to the US Supreme represents a likely threat to reproductive rights in the USA. In Poland that threat has already happened. The Constitutional Court, with judges appointed by the votes of the conservative Law and Justice Party, on 22nd October 2020 deemed unconstitutional termination of pregnancy based on a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life-threatening ailment. In response, hundreds of thousands of Polish citizens took to the streets all over Poland – from major cities like Warsaw and Kraków to the small town of Zawadzkie – to protest against this draconian law.
Access to legal abortion in Poland
As a matter of context, Poland already had one of the strictest abortion laws in Europe, which since the 1993 Family Planning Act had been termed the ‘abortion compromise’. In other words, termination of pregnancy in Poland is legal only in three instances, when:
- pregnancy endangers the mother’s life or health;
- prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life threatening ailment;
- there are strong grounds for believing that the pregnancy is a result of a criminal act (e.g. rape or incest).
Immediately upon the announcement of the Constitutional Court decision, international media outlets (e.g. CNN) highlighted that the risk of severe foetal abnormalities amounted for 98% of all abortions in Poland. While this is true, the scale of legal abortion in Poland was already very low. According to the official Ministry of Health statistics (published by Polish Press Agency, PAP), in 2019 in Poland there were 1,110 legal abortions. In another Catholic country in Europe – Ireland in 2019 had over 6,000 legal abortions, while in Poland’s immediate (but much smaller) neighbour, the Czech Republic, there were over 18,000 abortions in 2018 alone. In Poland in 2019, 1,074 abortions took place because of the high risk of severe foetal impairment. Polish women’s access to legal abortion is severely limited, and women do not take this decision lightly.
The fact that all three cases concerning women’s reproductive rights that reached the European Court of Human Rights (ECtHR) from Poland were about the impossibility to access even the existing legal provisions speaks volumes about the de facto situation with regard to legal abortion. The law is very strict, and yet women are denied legal abortion. This is the reality that has been recognized by the ECtHR in Tysiąc v Poland (2007), R.R. v Poland (2011) and P and S v Poland (2012).
Challenges before the European Court of Human Rights
These three cases indicate the inability to obtain legal abortion under one of the conditions permitted by the existing 1993 law. Tysiąc v Poland (2007) concerned a woman who, as a result of her pregnancy could become blind. P and S v Poland (2012) concerned an underage girl who ‘became pregnant as a result of rape and was humiliated, harassed, and manipulated in her quest for a legal abortion’ (Westeson, 2012). The third case, which is particularly relevant in the context of the recent Constitutional Court ruling ,was R.R. v Poland (2011). This specifically dealt with a lack of access to timely prenatal examinations in order to make an informed decision whether or not to continue with a pregnancy. In all three cases, the ECtHR held that these women’s rights were violated by effectively making a legally available abortion unavailable in practice.
The case of Mrs R makes for sombre reading. She was 29 years old at the time, married, and it was her third pregnancy. During the initial ultrasound scans the doctors suspected a severe genetic abnormality of the foetus (Edwards or Turner syndrome), but they withheld the specialist tests until the legal time limit for abortion had expired (i.e. after the 23rd week of pregnancy). Mrs R saw numerous (16) specialists both privately and within the remit of the public health system; she had five ultrasound scans; she was admitted to several hospitals and clinics, and even travelled to see doctors outside her own region in Poland. On at least four occasions during her visits at different hospitals, she demanded access to legal abortion if the specialist tests confirmed the nature of the genetic abnormalities. She finally received a doctor’s certificate confirming that the foetus had ‘A chromosomal aberration (…) indicating the presence of congenital defects which can have a serious impact on the child’s normal development’ (Judgment R.R. v Poland, 2012, Para 33). The specialist doctor’s certificate clearly stated that: ‘Further handling of the case under the provisions of the 1993 law on termination of pregnancy can be envisaged. A relevant decision should be taken with due regard to the parents’ opinion’ (Judgment R.R. v Poland, 2012, Para 33). However, when Mrs R received these results, it was too late for an abortion, and the child was subsequently born with Turner syndrome.
The Court held that Mrs R’s rights under Article 3 (‘prohibition from inhuman and degrading treatment’) and Article 8 (‘right to private and family life’) of the Convention had been breached, and it awarded her EUR 45,000 compensation. It was the first time in the European Court’s jurisprudence that Article 3 has been used in a case concerning female reproductive rights. The Court observed that ‘women who are obstructed in their efforts to obtain legal and available medical services suffer a particularly acute form of pain that is more likely to amount to inhuman or degrading treatment’ (Zureick, 2015): 124). The Court held that RR’s suffering reached the minimum threshold of severity under Article 3 of the Convention, whereby Mrs R:
“was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result, of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her family’s future, and the prospect of raising a child suffering from an incurable ailment. She suffered acute anguish through having to think about how she and her family would be able to ensure the child’s welfare, happiness and appropriate long-term medical care” (Judgment R.R. v Poland, para 159).
Consequences of the Constitutional Court for women human rights in Poland
The judgment of the Polish Constitutional Court from 22 October 2020 deemed this condition of legal termination of pregnancy unconstitutional. The judgment speaks volumes about the dignity of unborn life. However, what about the dignity of a woman, the mother, and her right to be free from inhuman and degrading treatment? How many more Mrs Rs are we going to have in Poland, who in a state of great vulnerability will be transferred from one hospital ward to another, from one specialist to another, because the decision of the Constitutional Court might be interpreted as indicating that it is no longer necessary to ensure that pregnant women have timely and effective access to diagnostic services? Will the decision of the Constitutional Court inhibit the medical consultations between a woman and her doctor, thereby affecting the physical and psychological wellbeing of the pregnant woman, causing her mental and physical anguish? Will it interfere with the State’s positive obligation to secure for their citizens the right to effective respect for their physical and psychological integrity, including a general right of access to information about one’s health?
Will the decision cause serious system-blockages in terms the accessing the diagnostic services and antenatal medical care and – in extreme cases – deem redundant the assessment of the medical condition of the foetus? Finally, when combined with the risk of incurring criminal responsibility under article 155 para 1 of the Criminal Code, the decision of the Constitutional Court is likely to have further chilling effect on doctors when deciding whether the remaining requirements of legal abortion are met in an individual case (see Tysiąc v Poland 2007, para 116; R.R. v Poland 2012, para 193).
Two judges – Leon Kieres and Piotr Pszczółkowski – submitted dissenting opinions to the decision of the Polish Constitutional Court. Judge Pszczółkowski argued that the Court had insufficiently and marginally treated the complex matter of the dignity of women, and mothers.
“A woman has a full right to demand from the state the protection of her heath and cannot be treated as an object, or a means to realise the constitutional role of a family. The dignity of a woman is no less important than the protection of unborn life. Demanding of women heroic acts is humiliating (undignified) in the common sense of the word” (Dissenting Opinion, announced 22 October 2010, my translation).
It therefore looks highly probable that the recent decision of the Polish Constitutional Court might find its final denouement before the European Court of Human Rights. However, the question is: how many women, as a result of this judgment, might be unnecessarily denied access to medical care, diagnostic services and specialist antenatal examinations in Poland, before it will be challenged?
References:
Westeson, J. (2012) ‘P and S v. Poland: adolescence, vulnerability, and reproductive autonomy‘, Strasbourg Observers. Published 5 November 2012.
Zureick, A. (2015) ‘(En)gendering Suffering: Denial of Abortion as a Form of Cruel, Inhuman, or Degrading Treatment’, Fordham International Law Journal, 38.
Agnieszka Kubal is Lecturer in Sociology at the School of Slavonic and East European Studies, University College London,
Image: Jakub Zabinski