Abstract
On 22 October 2020, the Constitutional Tribunal of Poland ruled that an abortion due to foetal impairment was unconstitutional. This article discusses the context of this controversial ruling as well as its main tenets, focusing on the interpretation of the human rights proffered by the Tribunal and on the rule of law concerns raised by the Tribunal’s decision. Against the backdrop of a brief history of the legal regulation of abortion in Poland since 1945, the article offers a critical assessment of the human rights framework used in the Polish abortion debate. Based on a close reading of the Tribunal’s ruling and the dissenting opinions, the article points out the particularities in the Tribunal’s engagement with international law and human rights jurisprudence. The article argues that the Tribunal’s decision is yet another symptom of the crisis in which the rule of law in Poland has found itself since 2015. It bears evidence to the closing of the jurisprudential horizon caused by the political change which has been taking place in Poland since 2015, consisting of the reduction of the role of international human rights debates as a reference in Polish constitutional jurisprudence. The ruling is therefore a portent of Poland’s future compliance with its international commitments in human rights matters.
Highlights
Human rights serve to protect the basic values of what may yet become the global community of humankind
The protection of human rights can be raised as an argument in support of radically different variants of the legal regulation of abortion, which has been argued to lead to a “global legal indeterminism” in this field
What was usually—rather misleadingly— dubbed the “1993 abortion compromise” has been contested unsuccessfully by various social and political forces for almost three decades. This compromise was abolished by a ruling of the Constitutional Tribunal on 22 October 2020 (K 1/20) that declared abortion for foetal impairment unconstitutional, a decision which has been described as a “tragic judgment” (Łętowska 2020)
Summary
The choice of sources from which the jurisprudence draws its interpretations, arguments, and justifications belongs to the foundational elements of a legal culture, just as much as the institutional context as well as the styling and phrasing of its expressions (Wieacker and Bodenheimer 1990, pp. 1–29). It is true that an institutional or political change may lead to a shrinking of the horizon of valid references by eliminating some of them This need not occur by way of a modification of the rules by which jurisprudential practice operates, it may be a de facto change, an act of the “politics of jurisprudence” (Cotterrell 1989). I argue that the 2020 abortion ruling by the Polish Constitutional Tribunal is symptomatic of the narrowing of the jurisprudential horizon which I venture to describe as its “closing down” This process has been instigated by a political change which has been taking place in Poland since 2015, consisting of the reduction of the role of international law and the jurisprudence on human rights as a reference in Polish constitutional jurisprudence
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
