On the observation of Human Rights Day (10 December 2020) the eyes of many are once again focused on Poland, where mass protests against further limitations of an already very restrictive abortion law have been taking place.
The protests began at the end of October, after the Polish Constitutional Tribunal struck down a statutory legal provision, which had previously allowed women to access abortion in cases where there was a high risk that the foetus would suffer severe and irreversible impairment or an incurable life-threatening illness after birth.
The majority of the Constitutional Court found that this provision violated the protection afforded to the foetus by the Polish Constitution 1997 in Art. 38 in connection with Art. 30 and art. 31 para 3.
These provisions guarantee respectively:
- legal protection of every person’s life;
- respect for and protection of human dignity, and;
- the principle of proportionality.
Abortion law after these changes still allows abortions in cases where:
- the woman’s life or health are at risk;
- the pregnancy is a result of an illegal act (rape or incest).
However, given that the overwhelming majority of registered abortions in Poland are performed on grounds of ‘severe or fatal foetal abnormality’, the judgment practically amounts to a ban on abortions in Poland.
The judgment – which will come into force if and when published – has been criticised by lawyers, human rights activists, and the international community.
Critics highlighted the devastating consequences the judgment will have for the Polish women and the society at large. The two judges, who delivered dissenting opinions, pointed out that the judgment completely ignored the rights of women guaranteed by the Polish Constitution 1997, including the guarantee of human dignity (Art. 30), the right to freedom (Art 31(1), the right to life (Art. 38), the prohibition of torture and degrading treatment (Art. 40), the right to privacy (Art. 47), the protection of health (Art. 68) and the special protection of mothers before and after birth (Art.71(2)).
Similarly, no regard was given to the potential suffering of children born with severe abnormalities, and for the families of such children. Furthermore, the dissenting judges also argued that the Tribunal had acted ultra vires (a Latin phrase used in law to describe an act which requires legal authority but is done without it), as, by striking down the particular provision of abortion law, which decriminalises a certain type of activity, it had established a new type of criminal offense in the Criminal Code. This in turn, they argued, violated the Polish Constitution of 1997, which requires that new offenses be created exclusively by legislative acts (Art. 41(1)).
It is important to note that proposals to amend the current abortion legislation failed on numerous occasions in Parliament even after the governing Law and Justice party came into power in 2015.
Less has been said about the way, in which the majority opinion utilised international human rights law to argue the right to life of the foetus.
The Tribunal referred briefly to Art. 2 of the European Convention on Human Rights (ECHR), Art. 2 and Art. 3 of the Charter of Fundamental Rights of the EU, and Art.10 of the UN Convention on the Rights of Persons with Disability, arguing that the lack of ‘temporal scope’ of these provisions suggests that human life could and should be protected from conception.
The judges suggested that this particular reading of these human rights provisions is commonly accepted and uncontroversial. At the same time, they ignored the case law and opinions produced by the human rights bodies, such as the European Court of Human Rights (Vo v. France), the Committee on the Elimination of Discrimination against Women (CEDAW), and the UN Human Rights Committee (Mellet v Ireland).
These decisions demonstrate that human rights law is increasingly interpreted in a way that imposes obligations on states to guarantee women’s access to safe abortions. For instance, in 2018, CEDAW held that thousands of women and girls in Northern Ireland are subjected to grave and systematic violations of rights through being compelled to either travel outside Northern Ireland to procure a legal abortion or to carry their pregnancy to term.
The Committee concluded that ‘the situation in Northern Ireland constitutes violence against women that may amount to torture or cruel, inhuman or degrading treatment’. The Polish Constitutional Tribunal further ignored important documents such as the General Comment no. 22 (2016) on the Right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), which also speaks broadly about the need for safe abortion care and the elimination of restrictive abortion laws.
The way in which the Polish Constitutional Tribunal utilised human rights instruments brings into the foreground an important observation. While the restrictive abortion regime and the continuous human rights violations in the context of sexual and reproductive rights in Poland have been widely reported and often condemned, the international community did not do enough to address them.
The European Court of Human Rights (ECtHR) held that Poland violated Art. 3 and 8 of the ECHR on multiple occasions in the context of abortion, in cases of R.R. v Poland, and P.S. v Poland.
In these cases women were prevented from getting access to lawful abortion services, stigmatised, and subjected to degrading treatment by healthcare professionals and public authorities.
However, it is important to remember that these cases concerned the enjoyment of existing rights under Polish law. The Court fell short of taking an unequivocal stand with regard to access to safe abortion in Europe. A clear right to access safe abortion services is still to be recognised. The recent liberal reforms of abortion law in Ireland and Northern Ireland could make it easier for the Court to set clear human rights standards in this respect. The recent judgment of the Polish Constitutional Court, and the cases that will inevitably follow, provides an opportunity to take this crucial leap. The ECtHR and other human rights bodies in Europe and beyond should not shy away from it.