Your body is not only your business: commentary on Poland’s Constitutional Tribunal Judgment of 22 October 2020 no.K1/20

Abstract

For about 30 years, the topic of abortion has remained a “bone of contention” between conservative and liberal members of Polish society. In October 2020, these discussions moved from the political and religious planes to the legal field: the Constitutional Tribunal of the Republic of Poland considered the issue of women’s right to “eugenic abortion”. The Constitutional Tribunal scrutinized the provisions of a specialized law, allowing the termination of pregnancy in case of a high probability of a severe and irreversible fetal malformation or an incurable disease threatening its life. As a result, in the Judgment of 22 October 2020 no. K1/20 the Constitutional Tribunal upheld the position of the applicants, a group of deputies of the Sejm, and declared the contested legal norms unconstitutional. This process was the center of attention of mass media and the reason of mass protests throughout Poland. This article is the commentary on the decision, that attempts to comprehend the premises of the decision, its substantive and procedural aspects, as well as the consequences. The author concludes that the main purpose of the decision is to constitutionalize the traditionalist state policy in the field of reproductive rights. This decision is difficult to analyze in isolation from political and religious factors. The article notes that the value of the “eugenic abortion” case is not limited to legal aspects. The Constitutional Tribunal tried not only to change approaches to the correlation of competing rights (the right of an unborn child to life and woman’s rights in the context of freedom of reproductive choice), but also to increase “chilling effect”. It is expressed in the phasing out of abortion on pain of criminal prosecution.