Poland’s Supreme Court ruled on Thursday that a law allowing abortions of fetuses with congenital defects is unconstitutional and closes a major loophole in the predominantly Catholic country’s abortion legislation, which is among the strictest in Europe.
Two judges in the Constitutional Court with 13 members did not support the majority decision. Activists lamented the decision, and the Council of Europe Commissioner for Human Rights wrote on Twitter that it was a “sad day for women’s rights.”
The decision came in response to a proposal by right-wing lawmakers who argued that termination of a pregnancy due to fetal defects – the most common cause of legal abortions in Poland – is contrary to a constitutional provision requiring the protection of every human life .
The court argued that termination of pregnancy due to birth defects constituted eugenics – a notion of 19th-century genetic selection that was later used by the Nazi Germans in their pseudo-scientific experiments.
It agreed with the applicants that it was a form of prohibited discrimination when the decision on the life of an unborn child was conditional on its health.
The challenged law was introduced by Poland’s young post-communist democracy in 1993 as a hard-won compromise between the influential Catholic Church and state authorities. It allows abortions when a pregnancy endangers the woman’s health or life, or as a result of rape or other illegal act, and also in cases of congenital defects. Only the last provision was challenged.
Even before Thursday’s decision, many Polish women have sought abortions abroad.
This damaging ruling puts women’s health and lives in #Poland at further risk AND violates their human rights. We stand in solidarity with women in Poland and everyone who works to ensure access to safe abortion treatment. #WyrokNaKobiety #OstraJazda
Center for Reproductive Rights (@ReproRights) October 22, 2020
Ministry of Health figures show that 1,110 legal abortions were held in Poland in 2019, mainly due to fetal defects.
In justification of its decision, the court said: “there can be no protection of the dignity of a single person without the protection of life.”
The verdict was announced by the president of the court, Julia Przylebska, a loyalist from the right-wing government that is focused on family and Catholic values. Przylebska’s appointment to court in 2015 was one of the government’s first steps towards taking control of the judiciary.
Archbishop Marek Jedraszewski, known for his strong conservative views, praised the verdict, expressing “great appreciation for the judges’ courage” in defending human life “from the time of conception to (the moment of) natural death.”
But opposition lawmakers struck out.
The leader of the civic coalition, Borys Budka, said on Twitter that the government used a “false” court in its own appointees to do something “simply inhuman.”
Council of Europe Commissioner for Human Rights Dunja Mijatović regretted the decision.
Removing the basis for almost all legal abortions in #Poland constitutes a ban and violates #HumanRights. Today’s decision by the Constitutional Court means abortions underground / abroad for those who can afford and even greater trials for everyone else. A sad day for #WomensRights.
– Commissioner for Human Rights (@CommissionerHR) 22 October 2020
“Removing the basis for almost all legal abortions in #Poland is tantamount to a ban and violates #HumanRights,” she tweeted. “Today’s decision by the Constitutional Court means abortions underground / abroad for those who can afford and even greater trials for everyone else. A sad day for #WomensRights. ”
Former European President and former Prime Minister of Poland Donald Tusk criticized the timing of such a key dominance in the difficult times of the pandemic.
Police guarded the court building as groups of pro-abortion rights and anti-abortion activists gathered outside when the verdict was announced. The groups were small because anti-COVID-19 rules prohibit gatherings of more than 10 people.
Today’s decision by the Polish Constitutional Court means that many people can resort to secret or unsafe abortions, especially those who cannot afford to travel or seek private care. This is a sad day for all of us. pic.twitter.com/lOqrUDs86q
– Amnesty International (@amnesty) October 22, 2020
One of the judges who did not support the verdict, Leon Kieres, claimed that he was aware of the situation and condition of women when they were deprived of the right to decide a pregnancy with defects.
Polish lawmakers considered legislation earlier this year that would have introduced an almost total ban on abortion by banning the procedure in case of fetal abnormalities, even when a fetus has no chance of surviving. They ended up postponing a final vote on the proposal from a Catholic group. Similar efforts were also painted with balls in the past after nationwide protests that are now not possible under the anti-COVID-19 rules.