The Judgment That Wasn’t (But Which Nearly Brought Poland to a Standstill)

Abstract

The Constitutional Tribunal (hereafter: the Tribunal), firmly controlled by the Law and Justice party and chaired by Mrs Julia Przylebska, who was unlawfully appointed to the position of the President of the Tribunal (though properly elected, earlier, as a judge of the Tribunal), as part of a panel partly comprised of persons not legally appointed judges of the Tribunal, announced that provisions of the law allowing pregnancies to be terminated when there is a high probability of a severe or irreversible foetal impairment or when the foetus is diagnosed with an incurable and life-threatening disease – are unconstitutional. 2 Hours later, the streets of cities and towns, large and small, all over Poland, teemed with tens of thousands and later hundreds of thousands of protesters loudly proclaiming their opposition – frequently using expletives so far unheard of in public spaces – to this assault on fundamental human rights paraded as a legitimate judicial act as part of the Tribunal’s constitutional review of legislation. 3 The protest, initially aimed at the Tribunal’s pronouncement, quickly turned into a global protest against the Law and Justice party’s rule over Poland in general, at first triggering incredulity in government circles and then prompting a series of nervous reactions from them. The ‘compromise’ consisted of a generalised ban on abortion save in three situations: (i) when pregnancy posed a threat to the woman’s life or health (regardless of the stage of development of the foetus);(ii) when pre-natal tests or other medical procedures indicated a high probability of a severe and irreversible foetal impairment or when the foetus is found to be afflicted with an incurable and life-threatening disease (prior to the foetus becoming viable outside the body of the pregnant woman);and (iii) when there are legitimate reasons to suspect that the pregnancy is a result of a prohibited act, such as rape or incest (in which case abortion was allowed in the first 12 weeks of pregnancy). [...]from day one, legislation in Poland has been shaped without regard to the prevailing standards for women’s rights and the protection of reproductive rights. The first move to amend the law was made in 1996 when the then ruling left-wing coalition voted to allow pregnancies to be terminated by women finding themselves in difficult living conditions or dramatic personal circumstances. 10 On 28 May 1997, however, the full panel of 12 judges of the Tribunal ruled – with three dissenting opinions – the latter amendment unconstitutional. 11 The Tribunal argued that the so-called ‘social premise’ for abortion, ‘serves to legalise the termination of pregnancies without sufficiently demonstrating the need to safeguard some other constitutional value, right or liberty, while also relying on vague legalisation criteria, thereby undermining the constitutional guarantees serving to protect human life’.