The changes to the Constitutional Court have also changed the reason politicians make its decision. For the opposition, it seems that it will be futile to submit their case to a review by a tribunal composed of candidates for law and justice, unless it is done for purely symbolic purposes. The ruling party, which controls the parliamentary majority in the lower house (which has not been in the upper house since 2019) and the presidential office (with veto power), is unlikely to need constitutional review of ordinary laws, as its legislative objectives can be achieved without resorting to them. In some cases, however, it may be politically desirable to make an amendment to the law through constitutional jurisprudence rather than the usual parliamentary legislative process. That is essentially what happened with the abortion law. Poland, home to about 20 million women and girls, has the lowest official abortion rate in the European Union. Poland joined the Council of Europe in 1991 and has been a party to the European Convention since 1993. The case law of the European Court of Human Rights in abortion-related cases against Poland illustrates in detail the thesis of Ní Ghráinne and McMahon. So far, Poland has lost three such cases (R.R. v. Poland in 2021, Tysiąc v.
Poland in 2021 and P. and S. v. Poland). They all relate to the situation in which a pregnant woman does not have access to legal medical diagnosis and treatment, including abortion. In these cases, the European Court of Human Rights found Poland in violation of Article 3 (right not to be subjected to inhuman and degrading treatment), Article 5 (right to liberty and security) and Article 8 (right to respect for private life) of the Convention in several respects. Since the European Court of Human Rights delivered these judgments, the Polish authorities have not made the necessary legislative changes, as the Committee of Ministers of the Council of Europe regularly reminds the Polish Government (Helsińska Fundacja Praw Człowieka 2021, p. 5). In January 2020, the European Court of Human Rights filed a new complaint with the Polish government regarding the impossibility of accessing legal abortion on the basis of Articles 3 and 8 (B.B. v. Poland, pending in 2021).
In July 2021, the European Court of Human Rights filed twelve new complaints with the Polish government regarding abortion rights in Poland. The Court also informed the Polish Government that it had received “more than 1000 similar applications” (ECTHR 2021, p. 1). The Council of Europe Commissioner for Human Rights intervened in these twelve cases in October 2021 and stated: In 2016, the UN Human Rights Committee held that the prohibition of torture and other forms of ill-treatment in article 7 of the Covenant allows the right to abortion in cases of life-threatening foetal abnormalities (Mellet v. Ireland 2021, confirmed in Whelan v. Ireland 2021). The Committee`s decision marked an important milestone in the development of the global reproductive rights regime. The common denominator of the previous jurisprudence of the various judicial bodies has been to emphasize the inadmissibility of arbitrary denial of access to legal abortion as a possible violation of women`s rights not to be subjected to cruel, inhuman or degrading treatment and to privacy. In the Mellet case, the Human Rights Committee went further and addressed the prohibition of abortion as such rather than the factual difficulty of obtaining access to legal abortion. Dr.
Janusz Rudzinski is on the phone with a woman who wants an abortion when he performs the procedure in March 2017 in Prenzlau. Kaja attended an online forum for women seeking abortions in Poland and was referred to Dr. Janusz Rudzinski, a Polish doctor who has been practicing in Germany for over 35 years. Kaja called Rudzinski – known for taking calls from women at any time of the day – and told him to come to his clinic in Prenzlau. Despite her pain, Kaja crossed the border about 200 miles from her village in Poland at Rudzinski`s clinic. In a 2017 Pew Research poll, 8% of Polish respondents thought abortion should be legal in all cases and 33% that it should be legal in most cases. On the other hand, 38% thought it should be illegal in most cases and 13% thought it should be illegal in all cases. [66] The failure of the outlaw law in 2016 was considered a success for abortion rights advocates in the country, although restrictions remain. A poll conducted during the first week of Polish protests from October to November 2020 found that 22% of respondents support abortion on demand up to the 12th week of pregnancy, 62% support it only in certain circumstances, 11% support the complete illegality of abortion, while 5% are undecided. [60] Article 4(1) of the American Convention on Human Rights of 22. November 1969 established that “every human being has the right to respect for his life.
This right is protected by law and generally from the moment of conception” (OAS 1969). While the protection of life from the moment of conception appears to be an indirect prohibition of abortion, the jurisprudence of the Inter-American Court of Human Rights includes cases in which the Court has concluded that abortion is compatible with human rights on the basis of the prohibition of torture or inhuman or degrading treatment. The recent judgment in the case of Manuela y otros v. El Salvador (2021), rendered by the Inter-American Court of Justice on 2. November 2021, although it does not go as far as the plaintiffs had hoped, it represents an important development, as the Court specifically asked El Salvador to amend its rules on the application of criminal sanctions for infanticide, which currently include the criminalization of abortion (“adecuar su regulación relativa a la dosimetría de la pena del infanticidio”, Manuela y otros v. El Salvador, § 14, p. 92). Footnote 2 Until 1956, abortion was subject to the interwar provisions of the 1932 Penal Code, which was reintroduced after the end of the Nazi occupation of Poland in 1945. Pre-war regulations were relatively liberal at the time, allowing abortions for medical reasons and in cases of pregnancy as a result of a crime. In 1950, certain restrictions on pre-abortion documentation requirements were added by the Medical Profession Act. However, in 1956, the new legal regulation of abortion was established in the Law on Abortion Conditions, which remained in force until 1993. It authorizes abortion for medical reasons, in the event of pregnancy as a result of a crime, but also because of the “difficult living conditions” of the pregnant woman (art.
1 para. 1). The requirement to document “difficult conditions” was quickly dropped and abortion was made possible upon request. Catholic pro-life activists have responded with anti-abortion campaigns in churches and other public actions, such as the 1977 petition to Parliament by a relatively marginal, church-sponsored and nationalist-leaning opposition committee for the defense of life, family and nation (Sikorski 2012, p. 101), signed by 12,000 citizens (Senate Committee Minutes 2017). The purpose of this action was not really to bring about a change in the law, which was hardly imaginable in the circumstances, but to raise public awareness of the moral problems related to abortion from a Catholic point of view. At the same time, pro-life positions at the time emphasized the link between abortion and national well-being. Communist authorities were portrayed as enemies of the Polish nation, and legislation allowing abortion on demand was considered biologically harmful to the nation`s existence, an act of anti-Polish communist biopolitics. Abortion was presented as a central issue from the point of view of national-conservative political forces concerned with Polish national identity long before 1989. The judge`s president, Julia Przyłębska, said in a ruling that the existing legislation – one of the most restrictive in Europe – allowing the abortion of malformed fetuses is incompatible with the constitution. Once the decision comes into force, abortion will only be allowed in Poland in cases of rape, incest or threat to the health and life of the mother, which account for only about 2% of legal dismissals in recent years.
[20] The symbols of the demonstration were umbrellas and hangers. The specific weather conditions of 3 October 2016 helped create a symbol for the recent women`s protests in Poland. It rained that day, but thousands of people still attended events and brought their umbrellas to the protests to protect themselves from the rain.