On 23 March 2018, more than 90 thousand people spilled out onto the streets of Poland’s cities. In Warsaw alone, 55,000 women and men paralyzed the capital city’s center for several hours. The reason for this mass protest in Poland—one of many in recent times—was that the Sejm (lower house of the Polish Parliament) had rejected a bill liberalizing abortion legislation, while the Sejm’s Commission on Justice and Human Rights issued a positive opinion on the “Stop Abortion” citizen-sponsored bill prohibiting termination of pregnancy even in cases of fetal abnormality. On 23 March, the Sejm was scheduled to vote on the latter bill but had to adjourn the vote when faced with vocal public opposition.
There was another important aspect to the action, named in the tradition of “black-wearing” protests founded in 2016: this time, there were almost as many men as women in the streets. Polish society has developed a certain solidarity and awareness that severe restrictions on abortion could turn into a tragedy not only for women but for entire families, including husbands, fathers, sons and partners. A video was posted online mobilizing men to join the action in support of women’s struggle for dignity and freedom of choice.
The Black Friday protests also manifested public discontent over the enormous and ever growing political influence of the Catholic Church in Poland. Banners and posters carried by the protesters featured anti-clerical slogans urging the separation of church and state. The outrage on the streets was triggered by the Polish Catholic Church’s unceremonious pressure on the government to tighten anti-abortion legislation. On 12 March 2018, the Conference of the Polish Episcopate urged MPs to step up their process on the “Stop Abortion” bill. The Parliament responded promptly, and on the next day, the agenda of the Sejm’s Commission on Justice and Human Rights was amended by adding a discussion of the “Stop Abortion” bill, although initially it had not been considered a priority. However, the Black Protest forced the authorities and the Church to realize that although Poland is a Catholic country, a bill which would further aggravate the situation with abortions should not count on broad public support. The Church reacted and severely condemned the protests (Polish) in its Easter sermons.
Why is the Church setting the tone in this highly sensitive public sphere? The answer lies in the country’s history and contemporary political life. The Catholic Church has always been an influential player in the Polish political arena. All political forces and successive governments have considered the church a guarantor of public order, a peacemaker and a mediator in disputes. Before every election, politicians massively seek the support of the high ranking clergy, and the latter’s endorsement influences key government decisions (e.g. with strong support from the Episcopate, President Andrzej Duda dared to veto the laws on the Supreme Court and the National Council of the Judiciary in the summer of 2017).
It all started in the 1980s with the introduction of martial law in Poland, which outlawed the activity of all civic institutions and organizations except the Catholic Church. According to sociologist Wiktor Osiatyński, the Poles were thus pushed into the embrace of the Church, and civil society became a church society. It is not surprising therefore that the struggle to ban abortion started almost immediately after the country’s political transformation.
In December 1989, a group of senators launched a bill restricting termination of pregnancy to situations when it actually threatened a woman’s health or life. The bill was sent to the Sejm which initiated public consultations on the matter and set up a commission to work on the draft law. However, debates on abortion-related issues stopped before the first free parliamentary election in 1991. The newly elected Sejm, once again, set up a commission to draft a bill on the legal protection of life from the moment of conception. In response, a nationwide movement emerged and some 1,700,000 signatures were collected under a petition calling for a referendum on abortion.1In 1992, the Public Opinion Research Centre (CBOS) published the findings from a public opinion survey on abortion: 74% of the respondents answered “Yes” to the question “Do you think that the issue of whether abortion must be banned or permitted should be decided by a nationwide referendum?” The Sejm, however, rejected the petition and on 7 January 1993 passed a law on family planning, protection of the human fetus and conditions permitting termination of pregnancy. The law limits termination of pregnancy to three exceptional cases: if the woman’s life or health are in danger; if pregnancy is the result of a crime; or in case of severe and irreversible fetal abnormality. Thus, without consideration for Polish society’s opinion, the country adopted one of the most restrictive laws in Europe, effectively prohibiting abortion.
In 1994, the ruling coalition of the Democratic Left Alliance and the Polish People’s Party voted for amendments to liberalize the rules for pregnancy termination, but President Lech Walesa vetoed the amendments, and the Sejm failed to override the veto. In 1996, the Sejm liberalized these provisions once again. President Alexander Kwasniewski signed the law into effect, but the Solidarity Movement complained to the Constitutional Tribunal arguing that the amendments conflicted with the so-called Minor Constitution of 19922Poland’s fundamental law in 1992 to 1997.by failing to protect life from the moment of conception.
After winning the 2001 parliamentary elections, the Democratic Left Alliance, despite earlier promises, stopped the debate on liberalization of anti-abortion legislation in exchange for the Catholic Church’s support during the EU accession referendum.
In February 2002, a group of women prominent in science, culture, art, politics and business submitted a Hundred Women’s Letter (Polish) to the European Parliament, expressing the concern that “on the margins of Poland’s EU integration some kind of bargaining in women’s rights is going on; protection of life at conception is treated as an objective dogma, while abortion on social grounds is mentioned in quotes as if it were some ideological claim raised by feminists trying to legalize murder.”
In 2007, a group of Law and Justice (PiS) party MPs, including the Speaker of the Sejm, proposed amending Poland’s Constitution with provisions for protecting human life from the moment of conception. The public reacted by protesting outside the Sejm building, and a group of prominent women in the mass media met with the first lady, Maria Kaczynski. The meeting resulted in an appeal to the MPs urging them to stop trying to tighten the legislation on abortion. Father Tadeusz Rydzyk (influential founder of the conservative Radio Maryja station mobilizing the PiS party’s loyal electorate) called Maria Kaczynski “a witch who should submit herself to euthanasia.” Father Rydzyk never apologized to Maria Kaczynski for these words, but the bill that would tighten the rules on abortion failed in the first reading at the Sejm.
The next phase of the anti-abortion campaign began in September 2016, when the Sejm forwarded the bill proposed by the Stop Abortion Committee to impose a total ban on abortion without exceptions to a parliamentary commission for further consideration.3The Helsinki Foundation for Human Rights (Warsaw, Poland) published a critical opinion on the bill, available at http://www.hfhr.pl/en/foundation-critical-on-draft-of-anti-abortion-law/ At the same time, the Sejm rejected a liberalizing bill prepared by the Committee to Save Women, which permitted abortion before the 12th week of pregnancy. The “Stop Abortion” bill, in addition to a total ban on abortion, provided for criminal liability for anyone causing the death of a conceived child, including the mother. In response to these developments, on October 3, women all over the country went on a strike; many women took a day off work or university, while those who were not employed said they would stay away from household chores on that day. Those who were unable to join the strike came to work dressed in black (thus, the color black came to symbolize protests against tightening the abortion law). In turn, those who pushed for tougher legislation staged “white protests” and “white days,” and the Polish Episcopal Conference, in its official communiqué, called upon people to pray for a decision favoring legal protection of conceived life and asked them to wear white clothes to church. Three days later, the Sejm rejected the bill prohibiting all abortion. Those who voted against the bill included Jarosław Kaczyński, leader of the ruling Law and Justice party, and the then Prime Minister Beata Szydło, but they said that efforts to protect conceived life would continue.
A year later, in October 2017, the non-governmental Committee to Save Women 2017 submitted to the Sejm a bill permitting termination of pregnancy before the 12th week of gestation. After the 12th week, termination would still be possible if the pregnancy threatened the woman’s health or life, the fetus had severe and irreversible abnormality or a fatal disease or if the pregnancy was the result of a crime. In early January 2018, the Sejm rejected the bill in the first reading, and the Stop Abortion Committee’s bill was forwarded to the Sejm’s commission for further work. This situation triggered an avalanche of events, the most striking of them the March protests.
Despite the fact that until now—largely due to the public protests—the authorities have not been able to tighten the legislation on abortion to the maximum extent, the pro life groups have nevertheless produced a certain effect. Today, the 1993 law is presented to society as a good compromise for abortion. However, neither “good” nor “compromise” is a fitting description of this law. One can hardly describe as a compromise a legal act adopted without any public consultations or any desire to hear the voice of society: as we know, the 1,700,00 signatures under the petition to hold a referendum on this sensitive issue with serious implications for private and family life were simply ignored by the Sejm. It is all the more difficult to describe it as a “good compromise,” given that even in the three exceptions—critical and extremely challenging situations for the woman and her family when abortion is permitted—women continue to be denied the right to terminate a pregnancy. A few high-profile cases can illustrate the systemic barriers to legal abortion in practice.
In 2000, a gynecologist refused to perform an abortion on Alicja Tysiąc although the woman suffered from a serious visual impairment (severe myopia of minus 20 dioptres); three ophthalmologists who examined the woman during her pregnancy confirmed that giving birth constituted a risk to her eyesight and could cause blindness. However, the gynecologist refused to recognize these as medical reasons for abortion. As a result, after the woman gave birth to her third child, her vision deteriorated to such an extent that any physical exertion was contraindicated, including the effort of caring for her children. In March 2007, the European Court of Human Rights awarded Tysiąc 25,000 euro in compensation to be paid by the Polish state. The Court found a violation of Article 8 of the European Convention on Human Rights (respect for one’s private life).
In 2012, another ruling of the European Court of Human Rights found Poland in violation in respect of a 14-year-old girl who was raped by a 15-year-old and became pregnant. Her pregnancy was thus the consequence of a crime. The girl and her mother obtained a paper from the prosecutor’s office confirming that her pregnancy was the consequence of a criminal act, but abortion was still denied. A regional consultant for gynecology and obstetrics referred the girl and her mother to another hospital, but instead of performing an abortion, hospital staff brought a priest to see her; the priest who was the director of the Single Mother’s House urged the girl to carry the pregnancy to term. Since the hospital’s obstetrics department refused to perform the procedure, the girl’s mother took her to a hospital in Warsaw indicated by the national consultant for gynecology and obstetrics. However, the priest found out the girl’s location and continued to intimidate her into having the baby. Some members of the pro life movement visited and harassed the girl while in hospital, and the hospital received hundreds of letters. Scared by plans to hold a demonstration outside the hospital, its management asked the mother to have the girl discharged. Meanwhile, following a complaint from the priest, a court stripped the girl’s mother and father of parental rights and placed the girl in a juvenile shelter.4Such shelters provide temporary custody and care to children and adolescents in difficult life situation or in need of round-the-clock monitoring. Children can stay in such shelters for a maximum of three months, or, in exceptional cases, for up to six months. The shelters accommodate children who live in the streets or have run away from home or institutions, victims of domestic violence, or juvenile offenders pending a court verdict. Eventually, after appeals to the Ministry of Health, the Prime Minister and the mass media, the Office of the Patients’ Rights Ombudsman secretly arranged an abortion for the girl. The story caused a storm in the press, and an anonymous informant published the girl’s personal data. The European Court found violations of Article 5 (right to liberty and security of person) and 3 (right to be free from inhuman or degrading treatment) of the European Convention.
In 2014, in Warsaw, Professor Bogdan Chazan, director of the Hospital of the Holy Family, refused to perform an abortion on a woman despite medical indications, i.e. severe fetal abnormalities. Multiple medical opinions confirmed extensive congenital defects, including hydrocephalus and partial absence of skull bones making it impossible for the baby to survive after birth. The hospital director did not only refuse to perform an abortion referring to the conscience clause,5The “conscience clause” is a legal provision in Poland and some other countries which allows pharmacists, physicians and other medical professionals to refuse to provide certain types of care to patients based on their religious and other beliefs. but also extended the effect of the clause to include the entire hospital under his direction. He also failed to comply with the legal requirement to refer the patient to a physician in another hospital who could perform an abortion on her. As a result, the woman was forced to give birth to a child who died after ten days of terrible agony. The prosecutor’s office dropped the criminal case instituted against the hospital director, with the reason that the patient’s life had not been at risk and the pregnancy did not cause serious damage to her health. The Supreme Medical Council did not find any violations in Professor Chazan’s conduct.
In October 2015, the Constitutional Tribunal sided with the Supreme Medical Council by finding unconstitutional the provisions of the Law on Doctor and Dentist Professions allowing physicians and dentists to refuse to provide certain services based on their religious and personal beliefs, except if failure to provide such care could lead to loss of life, severe trauma or disease, and in other emergencies. According to this provision, a medical professional who invoked the conscience clause was required to indicate another doctor who could provide the required service to the patient, and also to document their refusal to provide care. The Constitutional Tribunal found the aforementioned provisions incompatible with freedom of conscience. Following the Constitutional Tribunal’s ruling, statements were made (Polish) in the Polish public debate that the Court had given priority to the doctor’s freedom of conscience over the patient’s right to health and constitutionalized “through the back door” a total ban on abortion and subordination of Polish law to the Church.
Government statistics published in early 2018 (Council of Ministers Report (Polish) on the implementation of the Law of 7 January 1993 on Family Planning, Protection of the Fetus and Termination of Pregnancy) reveal that the number of legal abortions in Poland has increased from 159 in 2002 to 1058 in 2016. Each year, the majority of abortions were due to diagnosed fetal abnormalities or life-threatening conditions. In 2016, a total of 1,042 of abortions were performed on this ground versus just 56 based on the other two legally permitted grounds: one because the pregnancy was the consequence of a crime and 55 because it threatened the woman’s life or health.
In November 2017, a group of the PiS ruling party MPs requested the Constitutional Tribunal to check the constitutionality of the permission to terminate a pregnancy in case of severe and irreversible fetal abnormalities. It is not yet known when the Tribunal will consider the request. But something else is well-known, namely that appealing to the Constitutional Tribunal provides an opportunity to resolve the issue quietly without more public turmoil. Having a parliamentary majority, PiS can vote for the amendment in question, disregarding both public opinion and that of international institutions, as it has done more than once before. But a ruling of the Constitutional Tribunal allows “resolving the matter by someone else’s hands.” Since the Constitutional Tribunal is fully subordinate to the ruling party, its decisions are not hard to predict. Facing serious problems with its own legitimacy, the Constitutional Tribunal is now expected to tackle one of the most controversial worldview issues—and its ruling may impose a absolute ban on abortion in Poland.
|↑1||In 1992, the Public Opinion Research Centre (CBOS) published the findings from a public opinion survey on abortion: 74% of the respondents answered “Yes” to the question “Do you think that the issue of whether abortion must be banned or permitted should be decided by a nationwide referendum?”|
|↑2||Poland’s fundamental law in 1992 to 1997.|
|↑3||The Helsinki Foundation for Human Rights (Warsaw, Poland) published a critical opinion on the bill, available at http://www.hfhr.pl/en/foundation-critical-on-draft-of-anti-abortion-law/|
|↑4||Such shelters provide temporary custody and care to children and adolescents in difficult life situation or in need of round-the-clock monitoring. Children can stay in such shelters for a maximum of three months, or, in exceptional cases, for up to six months. The shelters accommodate children who live in the streets or have run away from home or institutions, victims of domestic violence, or juvenile offenders pending a court verdict.|
|↑5||The “conscience clause” is a legal provision in Poland and some other countries which allows pharmacists, physicians and other medical professionals to refuse to provide certain types of care to patients based on their religious and other beliefs.|