Throughout the history and across the globe, women have been marginalized and deprived of their basic rights. It took the United Nations 55 years since its creation to specifically address women in its resolutions. The United Nations Security Council Resolution 1325 (2000) was symbolically passed at the dawn of the 21st century. Women of the 21st century seek independence in every single meaning of that word. One of the key elements of that independence is a desire of women to have participatory rights in their societies and take part in the decision-making processes. The decision making capabilities of women should not be limited to the social and political rights, but should also include decisiveness in the sphere of the family life. This view is shared by millions of people around the world and thousands of Poles, who in autumn 2016 flooded the streets of many Polish cities in order to protest against a bill restricting the abortion law in Poland. The bill originated from an anti-abortion citizens’ initiative called ‘Stop Abortion’ that gathered over 450,000 signatures. The bill sought to ban all abortions, unless the mother’s life was at risk. It has to be said that Poland already has a very restrictive law on abortion, in fact one of the tightest in Europe. Being a pregnant woman in Poland and wanting to have an abortion thus remains one of the most controversial issues, as women continue to struggle with restrictive laws regulating abortions.

Abortion in Poland is legal only in very limited and restrictive circumstances; such as when the pregnancy endangers the life or health of the woman; when there is a high probability of a severe and irreversible fetal impairment, abortion is permitted until the fetus reaches viability; and when the pregnancy results from a crime including rape or incest, abortion is permitted during the first 12 weeks of pregnancy.[1] In all situations beyond these three circumstances, abortion is forbidden and doctors or anyone else who helps a woman to obtain an abortion outside of the scope of the law is liable to a three-year prison sentence.[2]

The bill proposed by the Stop Abortion group would extend the ban to the cases of rape and incest. The only exception would have been where the mother’s life was in danger. Women or girls who would have undertaken an abortion would have been sentenced to imprisonment between three months and five years. While in the majority of the European States abortion is legal upon the request of a woman,[3] the vision of imprisoning victims of such heinous crimes as rape who undertook an abortion seems unacceptable. As the proposed amendment to the abortion law generated public outcry, the contentious bill has not been passed by the Polish parliament, where 352 MPs voted against it and 58 in favour.[4]

However, the fight for more liberal abortion law in Poland is not over. In fact, it has not even started properly yet. On October 27, 2017, a group of MPs which consists of members of Poland’s ruling, socially conservative Law and Justice party (PiS) alongside with Kukiz15 and Free and Solidary parties, submitted a motion to the Polish Constitutional Tribunal that the provisions of the Act of January 7, 1993 on family planning, protection of human fetus and admissibility conditions termination of pregnancy (available here) are inconsistent with the Constitution of the Republic of Poland. The group claims that the inconsistency with the Constitution lies in the exception of allowing abortion in the case of a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening his life. It has to be mentioned that while most of the Polish and western media are losing interest in Poland’s Constitutional Tribunal crisis, the Constitutional Tribunal is very soon to be composed by the majority of the justices elected by the current parliament in which Peace and Justice party has a majority (for a thorough analysis of Poland’s Constitutional Tribunal crisis, see post published by Aleks Szczerbiak). Hence, the motion is very likely to be accepted as legitimate by the Constitutional Tribunal.

However, even under the current legal regime access to abortion is preposterously limited. In many regions of Poland, women who are entitled to legal abortion face an almost impossible task of finding a doctor or hospital willing to perform an abortion under the law. I contend that the reason for that is the fact that doctors are simply scared to perform legal abortions. In the conservative Polish society – where the majority of citizens believe that the abortion should be illegal – in most, if not all, cases[5] doctors are afraid of being stigmatized and exposing the reputation of their hospital at risk.

In recent years Poland’s abortion laws have been challenged in the European Court of Human Rights (ECHR). The Court found in the three cases, namely P. and S. v. Poland, R.R. v. Poland and Tysiąc v. Poland that Poland had violated the European Convention on Human Rights. I would like to bring your attention to P. and S. v Poland case, as I find this case deeply disturbing. The case concerns a 14-year-old rape victim who sought an abortion. The applicants in the case were the victim of the rape and her mother.

The ECHR found two violations of Article 8’s right to respect for private life when the girl was hindered in her attempts to obtain an abortion, and when one of the hospitals released details of her case to the media including her personal information. The applicants had been given misleading and contradictory information by the medical staff in the hospitals and had not received objective medical counselling. No set procedure had been available to them under which they could have had their views heard. The information made available to the public by the medical staff had been detailed enough to make it possible for third parties to establish the applicants’ whereabouts and to contact them, given that following publication of the press release, P. had been contacted by various people via e-mails and text messages urging her to abandon the abortion.[6]

Further, the Court found a violation of Article 5’s right to liberty when she was placed into a juvenile home to separate her from parents who ostensibly advocated for the abortion. The ECHR held that the essential purpose of P.’s placement in the juvenile shelter had been to separate her from her parents and to prevent the abortion.

Finally, the ECHR found a violation of Article 3’s prohibition against degrading treatment when she was forced to speak with a Catholic priest who tried to convince her to carry on the pregnancy, when her mother was forced to sign a consent form stating that her daughter may die during the procedure, and when she was targeted for unlawful intercourse.

In my opinion, the case denotes dysfunctionality of the system regulating access to legal abortion in Poland. A teenage victim of rape who had already suffered from a heinous crime, has been stigmatized by members of the medical community, local authorities and even the representative of the Catholic church. It seems like these actors did all they could to thwart her willingness to undergo an abortion. The case also highlights the serious limitation of Poland’s abortion law. Polish law in principle provides for mechanisms to reconcile doctors’ right to conscientious objection with patients’ interests, in particular by obliging the doctor to refer the patient to another physician carrying out the same service. As a result, the applicant in the P. and S. v Poland case was sent off from one doctor to another, which significantly delayed performance of an abortion and exposed her to further stress. It has to be reminded that in order for an abortion to be legal in the cases of rape and incest under the Polish law, it has to be performed within first 12 weeks of the pregnancy.

Further, the Helsinki Foundation of Human Rights has recently sent a report to the ECHR in which it stated that the Strasbourg’s Court judgments on access to abortion are not being implemented in Poland.[7] Jarosław Jagura, a member of the Helsinki Foundation of Human Rights legal team said ‘’In our assessment, there are no mechanisms that would guarantee that women have effective and timely access to the lawful procedure of termination of pregnancy. Regrettably, the existing procedure for objecting against a certificate or opinion of a doctor who refuses to perform abortion is too formalistic and does not guarantee that the final decision is issued before the end of the period in which a pregnancy may be legally terminated.’’[8]

Hence, it can be said the practicable access to legal abortion in Poland is still a myth. As I mentioned before, according to the public opinion surveys conducted in 2014 and 2017, the majority of Poles still oppose to the legal abortion.[9] More disturbingly, a significant number of Polish citizens are against abortion even in the case of rape. From my perspective, there is a strong correlation between religious faith and one’s opinion on the law regulating abortion. Poland is in the top 5 of the most religious countries in the European Union, where over 90% of Poles identify themselves with the Catholic church.[10] Historically, the Catholic church has played a significant role in shaping people’s views on the concepts of morality and ethics. Nowadays, many Polish priests and highly ranked bishops are against abortion in all forms. Hence, I argue that the opinions of the members of the clergy are reflected among the Polish society. However, I believe that regardless of the results of the surveys, the Polish government should amend the legislation in order to give women the freedom of choice when it comes to their life decisions. As I argued in the beginning of this contribution, women seek independence in the decision-making which includes their right to decide whether or not to undergo an abortion. I contend that a pregnant woman is the only right person to decide on whether she wants to have a child or not, especially in the cases where the pregnancy was result of rape or incest. The question of abortion is undoubtedly the question of one’s religious, ethical and moral views. In the legal literature, much has been said on the rights (some argue that we should refer to them as human rights) of the fetus.[11] There seems to be a lack of consensus among the scholars as to the question whether the international law protects the rights of unborn child. Nonetheless, a thorough analysis of arguments for and against such a claim is beyond the scope of this contribution. However, regardless of the academic debate on that issue, I argue that this is a question which every pregnant woman should have a right to answer contingent upon her own believes, not believes of the majority of the society, Catholic church or ruling political party. I believe that very often the question of whether to carry on or terminate the pregnancy is extremely difficult even for women who are citizens and residents of countries where the law allows for the legal abortion on request. That being said, I find it beyond my imagination to comprehend what is is like to be a woman who has been a victim of rape in Poland and faces impediments in obtaining access to legal abortion combined with social stigma.

As we entered the 21st century, the tremendous effort was made to ensure equality between men and women, yet, in many aspects of every-day life, women still face obstacles to be fully independent. While the majority of European States implemented liberal laws towards abortion, Poland is still way behind. The legal regime regulating abortion in Poland, which is currently in force is highly ineffective, and the current political developments might even further restrict the rights of women.

[1] Article 4a of Act of the Polish Parliament of January 7, 1993 on family planning, protection of human fetus and admissibility conditions termination of pregnancy

[2] Ibid, Article 7.

[3] United Nations, Department of Economic and Social Affairs, Population Division (2014). Abortion Policies and Reproductive Health around the World, available at http://www.un.org/en/development/desa/population/publications/pdf/policy/AbortionPoliciesReproductiveHealth.pdf.

[4] Official website of the Polish parliament, the link refers to the report from a voting on the abortion bill. The report is only available in Polish  http://www.sejm.gov.pl/Sejm8.nsf/agent.xsp?symbol=glosowania&NrKadencji=8&NrPosiedzenia=27&NrGlosowania=12

[5] Fundacja Centrum Badania Opinii Społecznej, Komunikat z Badan CBOS, NR 15/2014, RELIGIJNOŚĆ A ZASADY MORALNE, Warsaw February 2014, available in Polish at http://cbos.pl/SPISKOM.POL/2014/K_015_14.PDF.

Pew Research Center, Religious Belief and National Belonging in Central and Eastern Europe, at 29, available in English at http://assets.pewresearch.org/wp-content/uploads/sites/11/2017/05/09154356/Central-and-Eastern-Europe-Topline_FINAL-FOR-PUBLICATION.pdf.

[6] P. and S. v. Poland, no. 57375/08, ECHR 1853 (30 October 2012, paragraph 27

[7] Helsinki Foundation of Human Rights, Communication from Helsinki Foundation of Human Rights concerning the execution of ECHR judgments in cases P. and S. v Poland ( Application No. 57375/08), R.R. v Poland ( Application No. 2761/040, Tysiav v Poland ( Application No. 5410/03), Warsaw, 1st of Septmeber 2017, available in English at http://www.hfhr.pl/wp-content/uploads/2017/09/HFHR_Execution_P_andS_against_Poland.pdf.

[8] Liberties, Legal Abortion in Poland Is Still Mostly an Illusion, Polish Helsinki Foundation for Human Rights, October 12, 2017.

[9] See supra note 5.

[10] Eurobarometer Report 73.1, BIOTECHNOLOGY, Conducted by TNS Opinion & Social on request of European Commission Survey co-ordinated by Directorate General Research, Special Eurobarometer, European Commission (October 2010), available at http://ec.europa.eu/commfrontoffice/publicopinion/archives/ebs/ebs_341_en.pdf. For the date concerning the religious believes see for instance page 204.

[11] See for instance Howard Minkoff and Lynn M. Paltrow, “The Rights of ‘Unborn Children’ and the Value of Pregnant Women,” Hastings Center Report 36, no. 2 (2006): 26–28; Joseph, Rita. Human Rights and the Unborn Child. Leiden: Martinus Nijhoff Publishers (2009); Philip Alston, ‘The Unborn Child and Abortion under the Draft Convention on the Rights of the Child’, 12 HRQ 1 (1990) 156–178.

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