Polish Eugenic Abortion Law Maintained
The coronavirus epidemic currently gives pro-abortion organizations a pretext to advance their agenda with international organizations and states. Thus, while the World Health Organization promotes medical abortion at home, France has lengthened the time period allowed for it, thanks to containment measures and despite the risk of complications for women in such cases.
In this context, the Polish draft law resulting from the citizens’ initiative “Shut Down Abortion” (Zatrzymaj aborcję), which was considered by the Diet on 16 April 2020, is an exception, since it is aimed at banning eugenic abortion, i.e. when there is a high probability of serious congenital abnormality or serious and incurable disease of the unborn child. Unfortunately, the lack of audacity once again affected the Diet on the issue of abortion: while it is to be welcomed that it did not reject this project from the outset, it kicked into touch by sending it back to "quarantine" in the parliamentary committees on "Health" and "Social Policy and Family".
Stay for the new citizens’ initiative against abortion
Stemming from the compromise voted on in 1993, after the Communist period during which abortion was widespread, current Polish law provides for three grounds that may justify such an intervention: eugenic grounds, pregnancy resulting from a criminal act such as rape, and pregnant woman’s life or health endangered. “Shut Abortion down” is not the first citizen’s initiative against abortion led by Poles. Already in 2016, “Stop Abortion” (Stop Aborcji) had gathered more than 450,000 signatures to demand the removal of the first two grounds, leaving only the possibility of having an abortion to preserve the pregnant woman’s life or health. The parliamentary committee “Justice and Human Rights” had then recommended that the Diet rejected this project, which was done on 6 October 2016. However, the Poles did not give up and the citizens’ initiative “Shut Down Abortion” was introduced before the Polish legislature on 30 November 2017 with, this time, 830,000 signatures in favour of a draft law that is barely less ambitious than “Stop Abortion”: the aim is to amend the 1993 law “on family planning, protection of the human foetus and conditions for terminating a pregnancy” by removing only the eugenic ground justifying about 95% of abortions currently performed in Poland. This citizens’ initiative is based on the observation that a very large proportion of these abortions concern unborn children suspected of having diseases that in no way prevent them from living: mainly Down syndrome or Turner syndrome (gonadal dysgenesis for girls).
However, this draft was referred back to committee on 16 April 2020 by 375 votes to 68 (7 abstained, 10 did not vote); at this time, no date is scheduled regarding a vote. Yet, there was hope for this draft law to be adopted, following the speech to the Diet by Abby Johnson, whose story inspired the film Unplanned, which has recently been a great success in Polish cinemas. When she visited Poland in February 2020, the former director of a Planned Parenthood abortion clinic in the United States questioned the Polish parliamentarians and people: “Don’t think your situation is better, because your law is better than other states. (...) In Poland, there is a project signed by almost a million people who want to put an end to eugenics. Eugenics! Do you hear this word? Eugenics was at the origin of the Holocaust! Make yourself heard and demand that the members of parliament vote for this law!”
A lack of political will on the part of the ruling majority
In this context, a political analysis is necessary. It shows that this new referral back to committee is largely due to a lack of political will on the part of the ruling majority (from the Law and Justice Party - Prawo i Sprawiedliwość or PiS) to tackle the 1993 compromise. Similarly, the “Stop Abortion” project had been rejected, while the PiS party had a majority in the Sejm and the Senate, which is no longer the case in the Senate. We are therefore far from what was reported in the French press, which for example headlined “Abortion in Poland: The government is taking advantage of the crisis to destroy our rights” (Libération, 15 April 2020). Indeed, if the Polish Diet is obliged to express itself on citizens’ initiatives collecting at least 100,000 signatures, “Shut Down Abortion” seemed to be “frozen” in the parliamentary committees and sub-committees, while the deadline for examining the project at first reading was expiring on May 12: the agenda that led to this examination in a time of health crisis is therefore in no way the underhanded manoeuvre denounced by some media.
Despite this mixed vote, neither rejection nor adoption, the existence of a hard core of parliamentarians supporting the project, mainly from the PiS (52), PSL/Kukiz15 (5) and Konfederacja (11) parties, should be pointed out. Likewise, state personalities have been in favour, such as the Ombudsman for the Rights of the Child (Rzecznik praw dziecka) Mikołaj Pawlak, or the President of the Republic Andrzej Duda, who stated: “I am firmly opposed to eugenic abortion and I believe that killing disabled children is simply murder. If a draft that goes against this is on my desk, I will certainly sign it”. Mr. Pawlak’s speech to the Diet on 16 April is noteworthy: brandishing a placard reproducing Article 2 of the Law on the Ombudsman for the Rights of the Child (“A child is every human being from conception to majority”), he reminded parliamentarians that they must give tools to ensure that this provision is respected in order to protect all rights, including the right to life, of all children, whether born or not: “You can invent as many rights as you want, even a right to recreation in times of pandemic, but the right to life and when it begins is already defined”. He finally implored the Diet to adopt the project: “It has already been frozen once, but something that comes out of the freezer is no longer fresh. (...) You all have a conscience, and for those who seldom use it, it is a clean one. It can sometimes be used to point the right path for yourselves and for us all. Use it. I ask you in the name of the children. Of all children.”
Eugenic abortion contrary to the Polish Constitution?
This lack of political will can also be explained by the case currently pending before the Polish Constitutional Court and brought before it in October 2017 by 100 PiS deputies asking it to rule on the constitutionality of eugenic abortion: it seems that the authorities are resorting to the authority of the judges on this issue. Yet eugenic abortion, which the citizens’ initiative was intended to put an end to, appears to be inconsistent with the Polish Constitution, as many renowned jurists such as Professor Andrzej Zoll, former President of the Constitutional Court and former Ombudsman (Rzecznik Praw Obywatelskich), have argued.
Indeed, the obligation to protect the unborn child, including the disabled or sick, can be inferred from several provisions of the Constitution concerning the democratic rule of law (art. 2), protection of maternity (art. 18), human dignity (art. 30), prohibition of discrimination (art. 32 § 2), protection of human life (art. 38), the requirement of special protection for disabled persons (art. 68 § 3 and 69). Moreover, the Constitutional Court already ruled that “the value of the constitutionally protected legal subject-matter that is human life, including life developing in the prenatal phase, cannot be subject to distinction” and that “the prohibition of the violation of human life, including the life of the conceived child, results from norms of a constitutional nature. In such a situation, the ordinary legislature cannot thus be empowered to decide on the conditions of such a prohibition, which would make constitutional norms conditional by nature. In particular, it cannot make it depend on provisions contained in ordinary laws” (28 May 1997, K 26/96). And for the same court, “there is no doubt that the value of a person’s life cannot be assessed on the basis of age, state of health, life expectancy or any other criterion” and “it would be completely unacceptable in a democratic state governed by the rule of law, implementing the principles of social justice and protecting life and inalienable human dignity, to limit the legal protection of human life in order to protect subject-matter situated lower down in the constitutional hierarchy, for example property (...), public morality, environmental protection or even the health of other persons” (30 September 2008, K 44/07).
The European Court of Human Rights enters the debate
While the issue of eugenic abortion divides the Polish people, its judges and elected representatives, the European Court of Human Rights (ECHR) seems to invite itself into the debate: on 29 January 2020, it communicated to the Government the application B.B. against Poland (No. 67171/17). It was brought before the Court almost 3 years ago (on 21 August 2017) by a woman who complained that she could not get an abortion, for various reasons and despite the possibility offered by Polish law, despite the fact that several foetal anomalies had been detected. She gave birth to her child, who died a few days later. Her application is based on the prohibition of torture (art. 3 of the Convention), the right to respect for private and family life (art. 8), the right to an effective remedy (art. 13) and the prohibition of discrimination (art. 14).
In this context, it is important to recall that no international text obliges States to allow recourse to abortion and that, on the contrary, they have committed themselves to prevent it. Moreover, in a document addressed in 2018 to the UN Human Rights Committee, which was revising General Comment No. 36 on the right to life, the Committee on the Rights of Persons with Disabilities condemned eugenic abortion as discriminatory. It stated that “laws which explicitly allow for abortion on grounds of impairment violate the Convention on the Rights of Persons with Disabilities (Art. 4, 5, 8)” to which Poland is a party. He went on to explain that this type of abortion is often based on misdiagnosis, and that “even if it is not false, the assessment perpetuates notions of stereotyping disability as incompatible with a good life.” Either way, while the authorities are reluctant to legislate to limit the use of abortion, the Poles are constantly showing their determination to this end, given the success of recent citizens’ initiatives in this area. A survey conducted in spring 2017 by the polling institute CBOS showed that 70% of Poles are in favour of protecting human life from conception.