Poland: Constitutional Court Rolls Back Abortion

This judgment comes after various twists and turns that are worth recalling, especially as they have been distorted by the media’s presentation which was aligned with political correctness.

Historical Review

Abortion was banned in Poland until 1932, when a law was passed allowing it in cases where the life of the woman or the fetus were in danger or if the pregnancy were the result of a criminal act (rape or incest). This law was very advanced for the time. It took effect under the regime led - even though he was not president - by Marshal Józef Piłsudski (1867-1935), who was a socialist.

Communist power introduced a new motive in April 1956: if the pregnant woman lived in difficult socio-economic conditions (poverty, single mother, low income, etc.), the judgment came under the jurisdiction of the doctor. It was abortion without calling it thus. This easy option would be used by women from other countries until the 1970s.

After the fall of the Communist regime, an ordinance was passed on January 7, 1993 in parliament reverting to the changes made to the law in 1956. Difficult living conditions were no longer a factor to be taken into account when a woman wanted to terminate her pregnancy. Abortion was therefore no longer authorized: only in case of danger to the mother’s life, villainous acts (rape and incest), and for eugenic reasons - the possibility of the child’s illness or disability.

The Polish Deputies’ Appeal to the Constitutional Court

An appeal by a hundred Polish deputies was filed in 2017 at the Tribunal, asking for the eugenics clause to be removed from the abortion law, as unconstitutional. Indeed, the Polish constitution of 1997, in its number 38, reads: “The Republic of Poland guarantees to every man the legal protection of life.”

The issue was debated in legal circles, but the legal opinion was clear: Several former presidents or members of the Tribunal claimed that this law contradicted the constitution. But at the time, the Law and Justice party introduced the principle of discontinuity of appeals: the Tribunal not having considered the appeal before the parliamentary elections, it became void in principle.

This situation was paradoxical, because the majority of the signatories of the appeal were precisely deputies belonging to the Law and Justice party. But its chairman, Jarosław Kaczyński believed that “the time was not right to address the issue of abortion.” This is why his party did not want to vote on several anti-abortion bills, tabled in parliament by citizens’ initiatives, frozen in parliamentary committees, and which are still there.

This evasive attitude was strongly criticized by Catholic and pro-life circles. The Polish episcopate also showed great dissatisfaction with a government which gave itself a pro-Catholic and conservative electoral image, but which was not followed up by action.

The deputies’ new appeal to the Tribunal concerned the 1993 eugenics abortion law. The October 22 judgment was made with 13 votes against 2, when, in an unusual way, the Constitutional Court gathered its fifteen judges in solemn session. The eugenics motif of the 1993 law will therefore be repealed as soon as the court's verdict is published in the Official Journal.

Real Scope of This Judgment

From a “quantitative” point of view: in 2019, out of 1,116 “legal” abortions, 1,074 were registered in the eugenics category, i.e., 96.2%.

Statistics show a predominance of trisomy 21 - with or without other associated disorders (435). Another important batch includes multiple malformations (200). But, the latter number is difficult to interpret, as doctors advised this motive to obtain the abortion.

Note, the 13 cases of Turner syndrome, while, in recent studies, after treatment with growth hormone, young women carrying this anomaly have a quality of life perceived as normal in comparison with young women from the same age.

The foreign press did not fail to speak of the “women's rights” being violated by this vote. Which is to forget two things: in many countries - including France - abortion is not a right. It is a “decriminalized” act, therefore prohibited, but which should no longer be judged as culpable. On the other hand, the unborn child also has rights, recognized by most constitutions, but effectively flouted and nullified by laws allowing abortion.

From a “qualitative” point of view, the verdict is a logical consequence of previous judgments, which had already shown that in Poland there is constitutional protection of human life. This protection does not differentiate between prenatal and postnatal life, and protects human beings from conception.