Background to The Situation in Poland
Nation-wide protests, reportedly the most colossal in decades of its history, had erupted last week in Poland, following the Polish Constitutional Tribunal’s recent order nullifying women’s right to abortion in case of foetal abnormalities. Prior to this order, Poland was already known to have one of the strictest abortion laws in Europe, with a blanket ban on abortion while allowing three exceptions - one of which included foetal abnormalities. This exception had been in force for over 27 years. The only situations where abortions can henceforth legally be performed is in case of incest or rape, and if the mother’s life is in danger. In practice, almost all legally availed abortions until now were in the case of foetal abnormalities (while exponentially more were availed abroad or illegally). Thus, the Tribunal’s finding that this exception was unconstitutional de facto results in illegalizing nearly every potential abortion in Poland. While the judgment’s text has not been publicly released, it struck down the foetal abnormalities exception while focusing on the rights of the unborn child – noting that women should not be allowed the choice to abort “abnormal” foetuses as this would legalize ‘eugenics’. However, since the ruling had no discussion of the rights of the woman, it has invited significant international criticism.
This year in April, the ruling right-wing Law and Justice party had proposed a Bill limiting access to abortion in cases of foetal abnormalities, which could not gain fruition then. The party, which secures patronage from Poland’s Catholic majority, at its core seeks to defend and foster “traditional Polish values” against “damaging Western liberalism”. Further, concerns have plummeted over the deterioration of the tribunal’s independence in light of major institutional ‘reforms’ by the party that have led to greater executive involvement in the tribunal’s affairs. Thus, many analysts have opined that this recent decision may have been impacted by the party’s external influences. However, given the complexities of these narratives, both politically and jurisprudentially, the purpose of this piece is somewhat modest. This post seeks to analyze existing international human rights law (“IHRL”) frameworks in relation to abortion to assess the legality of this decision. This dialogue assumes prominence not only since the domestic law of Poland has failed its women; but also, since the language of these rights may provide legal legitimacy to the cause of these protests.
Is There An Unqualified Right of Abortion?
Many analysts and protestors have claimed that Polish women enjoy an unconditional right to abortion. However, such a right could be located in IHRL only if it has crystallized in the text of international human rights treaties, state practice, or in the decisions of adjudicatory bodies with the mandate to interpret these treaties. Poland has ratified the International Covenant on Civil and Political Rights (“ICCPR”) and the European Convention on Human Rights (“ECHR”). Many international scholars today contend that the decisions of the United Nations Human Rights Committee (“HRC”) and the European Court of Human Rights (“European Court”) have recognized an unconditional right to abortion. This would entail full bodily autonomy for women, i.e., the choice to terminate a pregnancy would be ipso facto permissible, if indeed exercised of their own volition or desire. However, this proposition does not reflect the existing position of law.
For instance, there are strong reasons to conclude that the right to life under Article 6(1) of the ICCPR guaranteed to “every” human being extends even to unborn children. The travaux of Article 6(1) and related provisions reveals states’ support for extending these rights to the foetus along with the rejection of the idea that these rights are triggered upon ‘conception’. In a similar vein, the European Court has consistently confirmed that the foetus enjoys the right to life under the ECHR while conceding that in compelling situations, such as in rape or incest, this may have to be “balanced” against women’s rights. In essence, the predominant position is that both the foetus and the pregnant woman enjoy certain competing guarantees, where the latter may override the former’s. Regardless, the Polish court’s decision contravenes IHRL as it fails to consider basic factors required in such balancing.
Foetal Abnormalities - Against Privacy And Inhuman Treatment
In K.L. v. Peru (2005), the HRC was faced with a situation where Peru had denied the claimant medical access to terminate her pregnancy despite medical opinions that it was a case of foetal abnormalities, which would lead to great pain to the child (if born). The HRC concluded that this denial constituted at least two violations. First, it noted that forcing women to undergo pregnancy against their wishes in such cases violates Article 17 of the ICCPR (¶6.4), which guarantees protection against “unlawful” or “arbitrary” interferences with one’s privacy and family. This is since it breaches their decision-making autonomy for their reproductive health. Thus, while abortion as a right is not absolute, it is protected by privacy and must be prioritized in the balancing of rights.
Second, Article 7 of the ICCPR guarantees protection against “cruel, inhuman or degrading treatment”. As evident from the HRC’s General Comment 20, this guarantee applies for both physical and mental cruelty. In Peru, the HRC held (¶6.4) that compelling a woman to continue with such pregnancies degrades them physically since it intrudes their bodily autonomy; and also imposes an inhuman treatment on them mentally, as women must face anxieties for their child’s health, and also potentially face the trauma emerging from their death after child-birth. This decision has since received significant support. In fact, an identical conclusion was reached by the European Court in R.R. v. Poland (2011), in relation to Article 3 (right against inhuman treatment) and Article 8 (right to respect for private and family life) of the ECHR. Here, Poland’s (note the lamentable irony) denial led to the woman being forced to look after a severely-ill child against her wishes. Thus, the Polish Court’s decision interferes with women’s privacy and subjects them to inhuman treatment.
Unsafe Abortions and Equality Breaches
In General Comment 28, the HRC stated that states are obligated to ensure that women with unwanted pregnanci