On October 22nd, Poland’s Constitutional Tribunal outlawed all abortions linked to fetal defects, one of the only abortion scenarios previously permitted and the most common reason for abortion in the country. This ruling has devastating consequences for women’s rights and violates Poland’s international human rights obligations. It has resulted in weeks of daily protests by tens of thousands of women (and men), against the court’s move to strip away reproductive rights. Police estimated 430,000 people attending many demonstrations around the country on Wednesday, October 28th, marking the largest protests in Poland in decades. For many protesting, the removal of abortion rights aligns with a pattern of policies eroding basic human rights in Poland.
Grycuk, a Polish NGO, has stated that they do not recognize the legitimacy of Poland’s Constitutional Tribunal. Similarly, the European Commission has expressed concerns about the Tribunal’s independence and legitimacy, in part due to how judges are selected. The Tribunal’s ruling was justified by abortion in cases of fetal defects as being discriminatory and violating unborn children’s right to life. UN human rights experts have argued, “it [the new law] cannot be justified by invoking the protection of the right to life, as the right to life and all other human rights under international human rights law are accorded to those who have been born. Those who believe that personhood commences at the time of conception have the freedom to act in accordance with their beliefs but not to impose their beliefs on others through the legal system.”
As a State Party to the International Covenant on Civil and Political Rights (ICCPR), since 1977, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), since 1980, Poland is failing to uphold its legal obligation under these international human rights standards. Article 12 of the CEDAW for instance, states all parties eliminate discrimination against women in the field of health care, ensuring access to health care services including those related to family planning. A UN report stresses international human rights mechanisms recognize women’s right to access safe and legal abortion as necessary for the protection of women’s dignity and implicit in the right to equality, right to private life, and right to be free from inhuman treatment. The decision of the Constitutional Court clearly goes against these standards.
Poland is the only EU member state to have such harsh laws—besides Malta, where abortion is entirely banned. UN experts estimate that prior to this new law, around 100,000 Polish women travel abroad for abortions each year. Socio-economically marginalized women, who do not have the means to travel abroad, are thus most vulnerable under this law. Protests of this scale have not been seen in the country since the Solidarity Movement in the 1980s, which led to the collapse of the Communist government. The protesters last week were joined by groups who fear the hard-won freedoms of the post-communist era are slipping away under the rule of the increasingly autocratic Law and Justice Party.
Moving forward, the decision to restrict abortions by Poland’s highest court cannot be appealed, but on Friday, President Duda filed an amended bill, which would make abortion possible if the fetus suffers from a terminal condition. Duda’s government itself, however, has previously attempted to restrict abortion laws in 2016 and 2017, with prison sentences for women who had illegal abortions. The MPs of Poland’s ruling conservative party were instrumental in bringing abortion before the Constitutional Tribunal today in the first place. Mass protests succeeded in stopping the 2016 and 2017 attempt to restrict abortions, and currently, perseverance remains amongst the Polish people and rights groups globally to protect women’s rights in Poland.
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