Guest post by Dr Atina Krajewska, University of Sheffield
A couple of weeks ago news hit the headlines about attempts to introduce a total ban on abortion in Poland. The legislative proposal that caused outrange among women’s rights organisations has been drafted by a citizen’s initiative, “Stop Abortion”, and is the fourth attempt to restrict abortion access to have been given a parliamentary hearing in Poland in the last 5 years. The proposal must be supported by 100 000 signatures before it can be voted in Parliament. However, as this threshold has been easily met in the past, it is worth reflecting on its causes and possible legal and social consequences for Poland and Europe.
Poland is well known for its conservative approach towards reproductive rights. The current Act on Family Planning, from 1993, extends the protection of the right to life to the prenatal phase of human life. It allows doctors to perform lawful abortions in only three sets of circumstances: when a) the pregnancy constitutes a danger to the life or health of the mother; b) prenatal tests suggest a high risk of a serious and irreversible abnormality or a severe life-threatening illness of the foetus; c) there is a justified suspicion that the pregnancy is a result of a criminal act (rape or incest). A lawful termination can take only place within the first 12 weeks of pregnancy. The Act has been often criticised as one of the most restrictive in Europe.
Nevertheless, despite popular belief, it is not the current law that seems to lie at the root of the problem. The reason for the limited access to abortion services for women is not the restrictive legislation, but its highly limiting and narrow interpretation and incorrect implementation. Poland has recently lost three major cases before the European Court of Human Rights (Tysiac, R.R., and P & S) due to the lack of adequate procedures guaranteeing the full exercise of statutory rights and medical practice substantially limiting access to lawful abortions. For the first time in the abortion context, the Court found that the actions of Polish authorities and medical professionals have met the threshold of inhumane and degrading treatment, set in Article 3 of the European Convention on Human Rights. Poland is the best example of how social, historic and political circumstances led to the bifurcation of different forms of legality, i.e. to discrepancies between formal and informal rules, between law and other – ethical and social – norms.
The new proposal
The new bill “on the general protection of human life and preparation for family life” defines “prenatal life” as starting from the moment of conception, which is described as “the fusion of the female and male gametes”. The same definition applies to the term “conceived child”, used in the Polish criminal code.
Crucially, the Bill proposes to delete all three conditions under which lawful abortion is currently permitted. This, of course, constitutes a dramatic departure from the current legal framework, and converts the current legislation into an administrative tool setting general directions for (limited) sexual education and social care necessary for families affected by the new regulation. At the same time, and more importantly, the new proposal sets out changes to the Polish criminal code, according to which ‘the causation of the death of a conceived child’ would carry a sentence between 3 months and 5 years of imprisonment. The same sanction would apply if someone were to assist with, or incite, abortion.
There is only one exception. According to the Bill, abortion would constitute a crime in all but one case – if the death of the foetus is a consequence of an action aiming to avert a direct threat to the woman’s life. The proposal does not clarify the meaning of “direct threat to the woman’s life”. However, interestingly, the justification of the bill claims that “according to contemporary medical standards, abortion can under no circumstances be perceived as necessary to save the life of the mother”. “If there are any available means that would help avert the risk to the mother’s life, then there is no justification for the sacrifice of the child’s life.”
Furthermore, the so-called “unintended causation of the death of the foetus” carries a sanction of imprisonment for up to 3 years. At the same time, the Bill opens up the possibility of mitigation or cancellation of a sentence, where a woman “intentionally causes the death of a conceived child”. The omission of unintentional occurrences in the provisions concerning mitigating circumstances could be interpreted in two ways. First, it could mean that the new provisions of the criminal Code apply only to those women who terminate their pregnancies intentionally, and to doctors who “cause the death of a foetus” either intentionally or unintentionally. A second interpretation could mean that the court would have no choice but to sentence a woman who caused the death of a foetus unintentionally. The latter reading has been dismissed by an ultra-conservative organisation, Ordo Iuris, involved in the drafting of the bill. On its website, that organisation claims that the criminal sanctions would only apply to women attempting or undergoing intentional terminations. However, this interpretation does not appear in the official justification of the proposal, leaving room for further speculations.
In order to alleviate the dramatic consequences of the legislative reform, the proposal simultaneously imposes a duty on the central administration and local government to provide financial support and social care for families whose children were born with disabilities or a life-threatening illness, and for mothers whose pregnancy was a result of a criminal act (rape or incest). However, no further details have been offered, and it is not clear what kind of financial support, at what level, and exactly in what circumstances, would be provided to those in need. Poland is well known in Europe for its neo-liberal approach to welfare and very limited social care provisions. It is easy to imagine a situation in which central and local government, under constant budgetary pressures, both to try to evade responsibility and ‘pass the buck’ to one another.
This proposal requires a few words of commentary.
The reasons underlying the restrictive approach to reproductive rights in Poland have been extensively analysed in the past. They are usually associated with the dominant conservative streak in Polish society and the authority of the Catholic Church, which gained unprecedented political influence during the last 25 years of democratic transition and market liberalisation.
However, this rise of excessive institutional, financial, and political power led to disenchantment and modest resistance by some groups in society previously sympathetic to the Church’s activism and the role it played before 1989. It also coincided with latent and very slow process of secularisation (although the extent of these process is still highly disputed). Therefore, it has been argued that the recent attempts to restrict abortion law in Poland are simply a reflection of the Church’s ever-stronger efforts to regain the lost ‘territory’ and send a powerful message to politicians and society as a whole. Of course, the Polish Catholic Church is not a monolithic institution and the current abortion controversy might also be a reflection of internal tensions between conservative and liberal fractions, and an attempt to pacify the more radical wing, which has been gaining prominence in recent years. What seems obvious, however, is that the Church’s leadership is trying to use the opportunity that presented itself after the last elections, as a result of which, for the first time since 1989, there are no social-democratic parties represented in the Polish Parliament. It is widely accepted that the ruling Law and Justice party would not have won such a decisive Parliamentary victory without the Church’s overwhelming support. It seems the time has come to pay the bill.
However, despite initial declarations of support from the Prime Minister, the timing for the government is far from ideal. Since it came to power in October last year, Law and Justice has been vigorously introducing very controversial and widely debated reforms, aiming at a far-reaching socio-political transformation. Introducing draconian abortion laws would risk antagonising large parts of the voting constituency and putting these reforms in jeopardy. It is worth remembering that issue of abortion had led to a split in the party and a departure of a small number of conservative MPs some years ago.
These concerns are legitimate. According to a recent opinion opinion poll, Poles are in favour of the existing legal framework, with 80% of respondents supporting lawful abortion for the protection of the woman’s life, 71% for the protection of the woman’s health, 73% in case of rape and incest, and 53% on the grounds of serious disability of the foetus. Worryingly, however, the poll revealed that about 65% of respondents supporting potential restrictions, including an absolute ban on abortion, are between 18-24 years old. In this age group 49% declare pro-life views, while only 19% identify with pro-choice values. In favour of limitations are also about 55% of those between the age of 35 and 44. Finally, even more puzzling are the figures mapping attitudes toward abortion law onto political affiliation. 42% of left-oriented voters are in favour of the current provisions, while nearly 25% support some form of restrictions (!), and only 30% are in favour of liberalisation of the current provisions.
The results of the opinion poll reveal striking resemblance with Latin American countries, where there is also a large support for conservative legislative frameworks and where the processes of democratisation and the extraordinary developments of socio-economic rights have not been accompanied by similar liberalisation of abortion laws.* This observation does not give many reasons for optimism. Nevertheless, the Polish proposal may paradoxically have some very desirable consequences.
First of all, domestically, it might constitute the necessary incentive for the activation and consolidation of support, not only against further restrictions, but also in favour of liberalisation of abortion law. The reaction to the proposed changes has been remarkable, in that, demonstrations taking place in different cities across Poland were gathering up to 7000 people each time. This might not seem like a lot at first glance, but it is remarkable by Polish standards, where society is – despite common perceptions – extremely politically passive.** The organisers of these protests were vocal in expressing their disapproval not only for the new proposals, but also for the existing legal framework.
For years, the pro-choice movement has been painted into a corner by the supporters of the so called “abortion compromise” in the form of the current legislation. Supporters of liberalisation were immediately described as extremists and… “feminists” – a term that in Poland is still often used as a mild insult. The pro-life movement has completely seized human rights terminology to refer to the foetus, which has become “the purest democratic citizen” with full rights and a special status.*** A proposal to introduce a near-absolute ban on abortion provides an excellent chance to regain ownership over human rights notions, such as human dignity, the right to life, non-discrimination, and equality. It gives much more prominence to the judgments of the ECtHR and the claims of degrading and inhumane treatment of Polish applicants and Polish women. This leads to the second observation.
Internationally, the adoption of a new draconian law would give the Council of Europe and the Court in Strasbourg another opportunity to engage with the abortion debate and to comment on the substantive aspects of the law. If the legislation became a reality, Poland would have more restrictive laws than Ireland and Northern Ireland. It would also be the largest of all the European states prohibiting abortion in almost all circumstances, and there is a big chance that many Polish cases would appear before the ECtHR. It would be interesting to see if the Court would find a violation of Art. 3 and Art. 8 (as well as Art. 2, and Art. 14) not on the basis of procedural gaps and incoherencies, but on the basis of substantive provisions. A long-awaited clear stance on the access to safe abortion could be secured by finding the right to therapeutic abortion encapsulated in Art. 3 and Art. 8 ECHR, and by redefining the margin of appreciation. The Human Rights Committee and the CEDAW Committee have both paved the way for such interpretation.
Another way would be for the Council of Europe to adopt an instrument similar to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (otherwise known as the Maputo Protocol). Art. 14(2)(c) of the Protocol on the Rights of Women in Africa imposes a duty on states “to protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus”. For the majority of European states, it would not be of any major significance and should therefore be easily accepted. For many it might sound like far too little, too late. However, it would send an important signal to those member states, in which the abortion debate in not settled. It would also set an important benchmark for the future. Recent developments in Poland, and in countries like the USA, suggest the struggle for women’s rights is far from over. Let us hope Polish women will not have to start dying to make the European community act.
* See R. J Cook, J. N Erdman, B. M. Dickens (eds.) Abortion Laws in Transnational Perspective: Cases and Controversies (Philadelphia: University of Pennsylvania Press, 2014). At the same time, a comparative analysis of the regulatory framework governing reproductive health and the socio-political processes underlying the attitudes toward reproductive rights in Poland and some Latin American countries, e.g. Argentina or Chile, seems long overdue.
** And yet, these protests attracted much less attention than demonstrations against the government taking place regularly since November 2015. N.B. the anti-government demonstrations were organised in support of the Constitutional Court, the same court that in October 2015 has issued a judgment considerably widening the scope of the conscientious objection for doctors, which would inevitably lead to further limitations of the access to abortion services. As the government is trying to dismantle and undermine the position of the Constitutional Court it is interesting to see if and to what extent the court ruling will be implemented.
*** See Holc, J. P. (2004). “The Purest Democrat: Fetal Citizenship and Subjectivity in the Construction of Democracy in Poland”, Signs, 29(3), 755-782.