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Sunday, October 24, 2021

Abortion in case of severe impairment of the fetus is unconstitutional. Judgment of the Constitutional Tribunal

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On Thursday, the Constitutional Court ruled unconstitutional abortion laws when the fetus is severely handicapped. This is the first change in the abortion compromise developed in 1993. The decision was made by a majority of votes. Two judges – Piotr Pszczółkowski and Leon Kieres – submitted a dissenting opinion.

The application was examined at the hearing before the Constitutional Tribunal on Thursday, which started at 11. The Constitutional Tribunal heard the representatives of the applicants – PiS MPs Bartłomiej Wróblewski and Piotr Uściński, Barbara Bartuś MP representing the Seym and prosecutors Robert Hernand and Andrzej Stankowski representing the Prosecutor General.

The TK examined the case in full court. The chairman of the adjudication panel was the president of the Constitutional Tribunal, Julia Przyłębska, and the rapporteur – Judge Justyn Piskorski.

The ruling on the non-compliance of the provisions with the constitution was made by a majority of votes. Two judges – Piotr Pszczółkowski and Leon Kieres – submitted a dissenting opinion.

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The Constitutional Tribunal examined the case as a full benchTrybunal.gov.pl

“Article 4a (1) (2) of the Act of 7 January 1993 on family planning, protection of the human fetus and conditions for the admissibility of termination of pregnancy (…) is inconsistent with Article 38 in conjunction with Article 30 in conjunction with Article 31 (3) of the Constitution “reads the operative part of the judgment read out by the President of the Constitutional Tribunal, Julia Przyłębska.

The judgment of the Constitutional Tribunal makes abortion legal only in cases where the woman’s life or health is at risk and when there is a justified suspicion that the pregnancy was a result of a criminal act, rape or incest.


“Discrimination on grounds of fitness is no less shameful than discrimination on grounds of race.”

– Discrimination on the grounds of fitness is no less shameful than discrimination on the grounds of race, sex or religion – said MP Wróblewski in front of the Constitutional Tribunal on Thursday. He emphasized that in the case of the challenged regulation on termination of pregnancy, it may be the probability of a fetal defect that can be determined by the fact, and not the fact.

The MP admitted that the awareness of having a terminally ill child may evoke “negative emotions”. – However, it cannot be argued that in the event of the inadmissibility of termination of pregnancy for eugenic reasons, the law would require a pregnant woman to be treated as such, he assessed.

In the opinion of the applicants, it can even be claimed that the justification for termination of pregnancy referring to the protection of women “for eugenic reasons” is in fact “a disguised social premise”. This, as indicated by the applicants, was denied by the Constitutional Tribunal in 1997.

Constitutional Court Adrian Grycuk CC BY-SA Wikipedia

MP Bartuś argued that human life as a constitutional value was assigned “the foreground importance within the entire system of individual freedoms and rights”.

She also emphasized that it follows from the principle of inherent human dignity that he should not be treated as an object. – Submitting a fetus to an abortion resulting in its death may be qualified as a manifestation of the treatment in question – she stated.

Prosecutor Hernand spoke in a similar vein. – The Constitutional Tribunal is consistent in the position that the constitution protects the life of every human being, also in the prenatal phase, he said, adding that from the moment of conception we can talk about a man with his innate dignity.

Questions at the hearing from judges who later dissenting

The parties were asked questions – this possibility was used by, among others judge Piotr Pszczółkowski and Leon Kieres.

– Can you tell the Constitutional Tribunal with a clear conscience that sharing your application today is a good time, taking into account the epidemic threat? Are you prepared for the consequences that will result in a possible ruling by the Tribunal as intended? – judge Pszczółkowski asked Wróblewski.

The deputy recalled that the application was submitted to the Constitutional Tribunal for the first time three years ago. – We are not the keepers of time or place. However, no circumstances weaken what, according to the constitution, is due to the sick and the disabled – said Wróblewski. He added that he was against the claim that the applicants’ actions “are against women”. – Not against. I think it is definitely at their cost and risk, replied Pszczółkowski.


Judge Kieres asked, inter alia, to take a stance on the thesis of the supporters of the current provision, according to which the introduction of an absolute obligation to continue pregnancy when a child has lethal defects “violates the dignity of a woman” and “is a manifestation of her treatment”

– There is never absolute certainty in what condition a child will be born. (…) It should also be remembered that taking life is a definitive action, and emotional and psychophysical states are temporary states, replied Wróblewski.

As Judge Julia Przyłębska noted at the beginning of the hearing, several opinions and letters were received in the case, including positions of the RPD Mikołaj Pawlak and the Ordo Iuris Institute, who supported the arguments contained in the application. The letter expressing disapproval of the request was received from the MP, Lewica Wanda Nowicka.

The case first came to the Constitutional Tribunal three years ago

The request of a group of deputies on this issue was submitted to the Constitutional Court for the first time three years ago. However, due to the end of the parliamentary term, it was discontinued. Once again, the application was submitted to the Constitutional Tribunal in 2019 – it was submitted by a group of 119 MPs from PiS, PSL-Kukiz’15 and the Confederation.

The application challenged the provision that an abortion is permissible when prenatal tests or other medical grounds indicate a high probability of severe and irreversible impairment of the fetus or an incurable life-threatening disease, and a provision clarifying this regulation. In the opinion of the applicants, these provisions legalize eugenic practices in relation to a child who is not yet born, thus refusing to respect the protection of human dignity.

“The legal justification of the eugenic premise in a democratic state ruled by law raises fundamental doubts” – reads the application. It emphasizes that a broad understanding of the concept of “human”, also including the human being in the prenatal stage of development, “finds a strong justification in the protection of human dignity.”

The Constitutional Tribunal dealt with the issue of the admissibility of abortionMarcin Obara / PAP

“The concept of ‘human’ also includes the phase of a human being’s life before birth”

“Since the attribute of human dignity belongs to man from the moment of the inception of human life, and the protection of the right to life is a direct consequence of the protection of human dignity, the interpretation of Article 38 of the Constitution in the light of Article 30 of the Constitution of the Republic of Poland leads to the conclusion that the right to life is a human right in stage of development, at which he is also entitled to the protection of human dignity, and therefore also in the prenatal period “- we read.

On Wednesday afternoon, positions on this matter were posted by the Prosecutor General and the Sejm on the website of the Constitutional Tribunal. Both organs requested that the challenged provisions be found inconsistent with the constitution.

“According to the prevailing views of the doctrine (…) there is an obligation to protect human life in the prenatal phase and the prohibition of discriminating against conceived human beings by public authorities, and the concept of ‘man’ used in the provision of Article 38 of the Constitution also covers the phase of a human being’s life before birth “- we read in the position of the Public Prosecutor General. As then pointed out, “since life begins at conception, from the first day of pregnancy, constitutional protection applies to human life in every phase of it.”

In the position of the Sejm, it was stated that the analysis of the constitutionality of the challenged provisions leads to confirmation of the applicants’ allegations “as to the failure to fulfill the obligation of the Republic of Poland to provide legal protection of life”. In the opinion of the Sejm, interference in this area is disproportionate and constitutes unequal and discriminatory treatment leading to a violation of dignity. Moreover, the provisions setting out the grounds for termination of pregnancy, according to the Sejm, “lack sufficient specificity”.

“This is a step towards women’s incapacitation”

The debate on the position of the Sejm took place last Friday at the session of the parliamentary legislative committee – then in voting on the draft position prepared by the Sejm Analysis Bureau, the deputies split 14 to 14, which means that the position did not receive support. However, this vote was not binding.

At the committee meeting, there were also critical voices from MPs and members of the opposition, who emphasized that it is unacceptable to force women to bear a child that has no chance of survival. These arguments have appeared before, incl. as part of the action #WyroknaKobiety initiated by the members of the Left. As the originators explained, the Tribunal’s recognition of the unconstitutionality of the challenged provisions “will be a judgment issued against all women in Poland, on their rights.

– The application to the Constitutional Tribunal is a step towards incapacitating women and, above all, reducing women to the role of silent incubators who have no right to decide about their health, body and life – said Katarzyna Kotula, MP from Lewica in October. According to another member of this group, Agnieszka Dziemianowicz-Bąk, the United Right has found “a cunning way to ban abortion completely while avoiding social protests.”

Organizing larger gatherings is currently impossible due to the coronavirus pandemic. This week, the National Women’s Strike conducted several days of protest using other forms of expressing objections. As part of it, a car strike was carried out. On Thursday, it is to be held on the route between the Constitutional Tribunal and the Supreme Court.

Demonstration in front of the Constitutional TribunalMarcin Obara / PAP

Doctors appeal to the Constitutional Tribunal

So far, over 800 doctors have signed an open letter to the Constitutional Tribunal, in which they argue that deleting the premise on termination of pregnancy due to fetal defects will pose a significant threat to women’s physical and mental health.

“The medical vocation is to alleviate suffering, and the highest moral imperative is the good of the patient and public health. The waiver of the admissibility of termination of pregnancy will put doctors in a situation where they will have to inflict or prolong this suffering against the patient’s will and with the awareness of possible complications” – we read.

The Act on family planning, protection of the human fetus and conditions for termination of pregnancy, in force since 1993, allows for abortion in three cases – when pregnancy poses a threat to the life or health of a woman, there is a high probability of a severe and irreversible impairment of the fetus or an incurable disease that threatens its life, or when the pregnancy arose as a result of a prohibited act.

In the first two cases, termination of pregnancy is acceptable until the fetus is able to live independently outside the mother’s body; in the case of a prohibited act – if no more than 12 weeks have elapsed from the beginning of pregnancy.

According to the data of the Ministry of Health, 1110 procedures of legal termination of pregnancy were performed in Poland in 2019. As many as 1074 of them were made precisely because of an irreversible handicap or incurable disease of the fetus. It is not known what the total number of procedures performed is – some of them are performed outside the country, and some illegally. Some statistics say about several thousand, others about over 100 thousand treatments per year.

Main photo source: Trybunal.gov.pl


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