Author: Eska-Mikołajewska, J
Published in National Security Journal, 05 April 2021
The demonstrators protested not only against the very content of the judgment of the Constitutional Tribunal, but also – which is no less important – against the form in which this body has been functioning. A number of doubts regarding the constitutionality of the process of appointing some judges to the Tribunal and the constitutionality of appointing the chairwoman of this body, Julia Przyłębska, have already been expressed by experts in the field of constitutional law and legal institutions. They have noticed legal flaws and questioned the legality of the Tribunal in general.
In the light of the Penal Code,49 the organisers of demonstrations during Covid-19 (a global pandemic) may be imprisoned for up to 8 years. The wave of protests flooded Polish cities again after the publication of the long-awaited justification of the Tribunal’s ruling on abortion.50 According to a survey conducted at the end of November 2020, as much as 66% of respondents were in favor of a woman’s right to abortion until the 12th week of pregnancy, while only 26% opposed. The Federation for Women and Family Planning calls the violation of reproductive rights in Poland a case of “institutional violence”.
Even before the judgment of the Constitutional Tribunal on the admissibility of termination of pregnancy, in October 2020, over 600 doctors from all over Poland signed a letter to the judges of the Constitutional Tribunal, in which they appealed not to ban abortion due to severe and irreversible damage to the fetus or terminal disease. In this document, they referred to a significant threat to the physical and mental health of women. According to the facts, removal of the medical premise on termination of pregnancy due to fetal defects, which account 98% of all abortions, will worsen the quality of care provided to pregnant women and will negatively affect the conditions of practicing the medical profession.51
Nevertheless, according to the current legal status, abortion in Poland has become practically illegal. The person who performed the abortion (doctor); the person who provided assistance in performing the abortion and the person who persuaded the woman to terminate the pregnancy are criminally liable, while the woman who undergoes the abortion does not bear such responsibility.52
The way into the 21st century: New Zealand’s example of shifting abortion law from its criminal framework
When the introduction of an abortion ban in Poland has become a fact, the new extremely liberal abortion law in New Zealand has been in force for almost a year. It accomplished something groundbreaking as it removed abortion from the crime list. New Zealand is an interesting case to study as one of non-Catholic majority countries in which, however, abortion-rights advocates were long unsuccessful in achieving liberal abortion reform. For the first time in 40 years New Zealand has modernized its abortion laws and de-criminalised abortion. Now abortion is legal and regulated under the health legislation.53