Not One More - After the ruling of the Polish Constitutional Tribunal of 22nd October 2020

By Anna Górska and Martyna Jałoszyńska, members of Lewica Razem in Poland

“For now, thanks to the abortion act, I have to lie down. And they can't do anything...Either the heart has to stop beating or labour must begin” – Izabela from Pszczyna texted her mother. She was in hospital after her waters broke. This was the time of the COVID-19 pandemic, therefore no visits were allowed in hospitals. Izabela laid down and waited... for her own death. Alone. Deprived of doctors and hospital staff's care, left by the very people who should have been fighting for her life. She had been texting her family for as long as she could. 

She was dying in the middle of a modern, developed European country. Unfortunately, it was the very country that decided a couple of months earlier, by the power of the decision of its highest tribunal, that Izabela has no right to demand medical professionals save her life. That no woman has the right to make decisions about her own life. 

Izabela from Pszczyna died in a Polish hospital, in the same way as women died a hundred years earlier. The reason for her death was a decision of religious fanatics in power, and the actions of doctors who (in the best case!) chickened out. Her nine-year-old daughter writes to her dead mother: "I love you, Mummy. I can't believe you died". 

The doctors who were supposed to take care of Izabela were accused by the prosecutor amongst other things, of manslaughter. However, this will not bring Izabela back to life. No charges and no judgements to the state which decided that women do not matter will bring back the lives of Izabela from Pszczyna, Agnieszka from Częstochowa, Justyna from Wodzisław Śląski... and other women about whom we have not heard about in media, who were denied help because in Poland “conceived life” is more important than our life. 

Dura lex [the law is hard]

On the 22nd of October 2020, the Constitutional Tribunal ruled that the right to terminate a pregnancy because of foetal impairment (which was the reason for approximately 90% of legal abortions in Poland) is unconstitutional. This meant that it was no longer possible to legally terminate a pregnancy in Poland when severe and irreversible foetal impairments were detected. It was a huge success for Catholic fundamentalists who have been fighting for a total ban on abortion in Poland. In 1993 they managed to restrict abortion law and introduce the so-called "compromise". Abortion was legal in three cases:

● when the foetus was severely and irreversibly damaged (the decision on termination after confirming the defects was up to a pregnant person or her legal guardians) 

● when pregnancy was a result of rape (after the prosecutor confirmed this fact, the decision was up to the pregnant person or her legal guardians) 

● when a woman's life is threatened (the decision is made by doctors according to the best of their knowledge). 

Since the act came into force, right-wing parties and their supporters fought for further restrictions, at least for forbidding the termination of the pregnancy when a foetus is impaired. The most popular example they mentioned were foetuses diagnosed during early pregnancy (between 11 and 13 weeks) with trisomy 21, also known as Down syndrome. Among the main supporters of this restriction were parents of children with this condition who decided not to terminate the pregnancy. Kaja Godek or Patryk Jaki, privileged people in positions of political power did not hold back on using the image of their smiling, beloved children affected by this condition. They believe that all such children have to be born, regardless of the level of their disability, family or financial situation. 

They were supported in the public debate by the parties they represented: Law and Justice (Prawo i Sprawiedliwość), United Poland (Solidarna Polska), Confederation (Konfederacja), and Polish and foreign NGOs fighting for a total abortion ban (the most important is Ordo Iuris Institute for Legal Culture), and the Catholic Church. 

After a couple of unsuccessful attempts to push through a new draconian law as a citizens' legislative initiative, the Sejm [Polish parliament] members from United Right (Zjednoczona Prawica) and the fascists (Confederation) decided to choose a different method. 

On the 23rd of December 2019, a group of 119 members of Sejm from Law and Justice, Confederation, Polish People's Party (PSL) and Kukiz submitted a referral to the Constitutional Tribunal to declare that terminating pregnancy because of foetal impairments is incompatible with the Constitution. The signatories argued that allowing abortion due to severe and irreversible fetal defects “legalizes eugenic practices towards unborn child and therefore denies him or her respect and protection of human dignity”. The referral had not proceeded for almost a year, and the Tribunal's sitting was postponed a couple of times. Not everyone was convinced that it was ever going to take place because the topic of abortion was rather avoided by Law and Justice representatives who were afraid of further protests. However, for the ruling party, the year 2020 was generous in conditions which allowed them to finally take care of restricting access to abortion – it was during the COVID-19 pandemic, a ban on social gatherings was introduced and there was a lot of time left before the next elections. 

On the 22nd of October, Julia Przyłębska, president of the Constitutional Tribunal, read the ruling declaring that the abortion law allowing termination of pregnancy in the three aforementioned cases was unconstitutional. This meant that the time of "compromise" had ended. 

Hundreds of thousands of people protested for a couple of weeks on the streets of small towns and big cities, blocked main roads in the villages and marched towards the ruling party's offices and the offices of its Sejm (lower house of the Polish parliament) representatives. Protesters were arrested, received charges (which were dropped by courts in the following years), were clubbed, sprayed with tear gas and brutally thrown into police vans to threaten them. Among the victims, there were even members of Sejm protected by their immunities who went out on the streets with people and used their position to protect others. MPs Magdalena Biejat and Barbara Nowacka were intentionally sprayed with tear gas directly in the face. MP Maciej Kopiec was brutally thrown into the police van and only after a few hours of driving around the city was released in a random place. Violence against protesters was used on a scale similar only to what took place during martial law in the years 1981-1983. We know from the leaked emails of Chief of the Chancellery Michał Dworczyk that the government was considering using the army to suppress the demonstrations. 

Eventually, the protests began to naturally diminish. The government had waited out the social rage for this drastic change of law. In January 2021, the ruling was published and came into force. 

““Protesters were arrested, received charges (which were dropped by courts in the following years), were clubbed, sprayed with tear gas and brutally thrown into police vans””

"In pain you shall bring forth children" 

This is not going to be, even though it could be, the part of the article talking about a lack of professional birth care and a lack of access to effective methods of birth pain relief. This is going to be a part about the pain of women who are confronted with the tragic diagnosis of severe foetal impairment and then left on their own. About the persons who want to terminate a pregnancy and because of this need to hide like outlaws and go to the clinics abroad, very often not sharing the secret even with their own husbands, afraid that the police will find out. This is the part about women forced by the state to carry virtually every pregnancy, no matter what, who were promised "rooms for crying out". The only help comes from brave NGOs. This is the part about Poland ruled by right-wing politicians who hate women and despise their life, health, emotions and mental state. This country denies them the right to make the most important decisions about their lives. 

““The ruling of the Tribunal had a chilling effect on the doctors.””

In the first days after the ruling was announced, abortion activists started receiving information that hospitals are refusing to perform abortions. It was an illegitimate action – the ruling came into force only after the reasons were published on the 27th of January 2021, three months after the Tribunal's decision. During this time, some of the women, often supported by the lawyers, won the fight for the right to terminate their pregnancies. We do not know how many were deprived of that right – not everyone decided to report it. Some of them definitely decided to terminate the pregnancy illegally, by ordering pills or going to clinics abroad. Some of them were forced to give birth. 

The ruling of the Tribunal had a chilling effect on the doctors. Many of them, scared of the criminal proceeding, are too afraid to carry out the abortion even in a situation when it is advisable and allowed based on current law. This was probably the case with Izabela from Pszczyna. 

Let's not forget that doctors still can refuse to perform an abortion, due to the so-called "conscience clause". This leads to the situation in which women have to travel around Poland, looking for the hospital which agrees to perform the procedure. Such a situation exhausts women both emotionally and financially – private doctor's visits, examinations, and hospital stays cost a lot of money. 

At the beginning of 2021, a few hundred women supported by Federacja na Rzecz Kobiet i Planowania Rodziny (Federation for Women and Family Planning) sent applications to the European Court of Human Rights with complaints on the ruling of the Constitutional Tribunal. In July 2021 the ECHR announced that it would deal with the substantive consideration of some of these complaints. This will obviously take many years – such institutions require a lot of time for their work – however, it gives some hope that European institutions will support Polish women in their fight. 

Meanwhile, quite recently new sad statistics were published – in 2021 in Poland there were only 107 legal abortions (for comparison, before the ruling of the Constitutional Tribunal, it was approximately a thousand abortions per year). 75 of them were performed in a short time before the reasons for the ruling were published on the 27th of January 2021. During the next 11 months, there were only 32 abortions performed, all of them due to the threat to the life or health of a woman. There was not even one abortion performed because the pregnancy was a result of the rape. 

19 million women live in Poland – and yet, only 32 legal abortions were performed that year. Religious fanatics were very proud of this number, boasting that they "saved" so many "unborn children". But even they had to be aware of how far this number is from reality. 

In reality, there are tens, if not hundreds of thousands of abortions each year in Poland. The only difference is that the obligation to help, which should be provided by the state, has been taken over by activists. On the 22nd of October 2021, Aborcyjny Dream Team (Abortion Dream Team) reported that within the first 12 months after the ruling of the Constitutional Tribunal its activists helped to terminate 34,000 pregnancies. Federacja na Rzecz Kobiet i Planowania Rodziny estimates the number of abortions outside the system at about 150,000 yearly. In 2013, CBOS (Centre for Public Opinion Research) conducted research and concluded that the number of women who had an abortion can range from 4.13 to 5.78 million. 

Abortion is a common experience in Poland and after the ruling of the Constitutional Tribunal, it became paradoxically less and less stigmatized. The intense resistance by women against this barbaric law; widespread protests and demonstrations (both on the streets and the internet), showing objection to tortures have contributed to the popularisation of the phone number to the Aborcja Bez Granic (Abortion Without Borders) (22 29 22 597) and to the greater awareness of how to terminate your pregnancy. Thanks to the growing popularity of pharmacological abortion, its costs have also decreased significantly. In most cases, it is no longer needed to travel to an abortion clinic in Czechia or Germany to undergo the procedure there. It is no longer necessary to take a few days off, buy tickets or book accommodation in a hotel. This means that more women can afford to terminate a pregnancy. And they do so, regardless of the opinion of authorities or the Catholic Church. 

““As long as abortion is illegal, women will continue to die.””

Unfortunately, even though activists do whatever is in their power, they cannot replace state structures. They are not able to provide the access to safe, legal and free abortion for every person who needs it. They will not have sufficient resources, effective enough communication channels and human resources. As long as abortion is illegal, women will continue to die. Women who trusted the system. Women who were controlled by violent men. Women who did not know other methods, did not have access to other information sources. Women who were not lucky enough. Women like Izabela from Pszczyna.

Without compromises 

The situation in which we find ourselves in 2022 in Poland is so horrible that looking for positives seems almost immoral, but... the truth is that all these actions of the ruling right-wing parties have triggered an enormous social change. 

““66% of people living in Poland confirmed that they believe that abortion should be legal””

It is worth noting that the tightening of the abortion law was introduced by Law and Justice against the opinion of society. Even in 2016, only 11% of respondents supported stricter abortion laws.[1] In the following years, there was growing support for the possibility of legal termination of the pregnancy until its twelfth week, regardless of the reason. A month after the Tribunal's ruling was announced, it turned out that the majority of the population – 66% – wanted a legal abortion, without compromises.[2] While at that time some commentators believed (and not without reason) that such support was a result of both the “shocking” ruling and the scale of the protests that carried on during the time of the research, the next survey gave clear answers. 

In May 2022, OKO Press asked again the questions concerning the possibility of terminating pregnancy – and again 66% of people living in Poland confirmed that they believe that abortion should be legal.

In May 2021 the committee "Legal Abortion. Without Compromises" was established by a broad coalition of NGOs, supported by politicians. It included representatives of many organizations: Federacja na Rzecz Kobiet i Planowania Rodziny (Kamila Ferenc), Strajk Kobiet (Marta Lempart, Bożena Przyłuska), Aborcyjny Dream Team (Karolina Więckiewicz, Natalia Broniarczyk), Łódzkie Dziewuchy Dziewuchom (Aleksandra Knapik-Gauza), Wielka Koalicja za Równością i Wyborem (Aleksandra Magryta), Centrum Praw Kobiet (Urszula Nowakowska), Kobiety w Sieci (Justyna Wydrzyńska), Akcja Demokracja (Karolina Skowron), the Greens (Magdalena Gałkiewicz), members of Sejm of the Left: Katarzyna Kotula, Wanda Nowicka, Joanna Senyszyn, Monika Falej, Katarzyna Ueberhan, Katarzyna Kretkowska and members of Sejm of the Razem party: Marcelina Zawisza, Magdalena Biejat. 

In difficult pandemic conditions, 200,000 signatures for a new abortion bill were collected. Its premise restored not only the possibility of terminating a pregnancy when foetal impairments were detected in the later pregnancy, but also what is most important, introduced the possibility of terminating a pregnancy up to its twelfth week regardless of the reasons (including pharmacological abortion at home). The collection of signatures was accompanied by a social campaign presenting the tragic consequences of the abortion ban and the health and social benefits of the law which simply gives women the possibility to make sovereign decisions about their fertility, including the terminating of unwanted pregnancy. Further cases of death were revealed to the public: deaths of the women who were denied the right to terminate a pregnancy because of the law in force since 2021, even if they had this right based on the provision about saving the life of a pregnant woman. Federacja na Rzecz Kobiet i Planowania Rodziny conducted a wide-ranged action to help women who were hospitalised because their pregnancy was a potential threat to their lives and to whom doctors refused to fulfil their legal obligation of care to the life of their patient, the pregnant woman. #PoselskaSiećRatunkowa (MPs’ Help Network) was started[3] by members of the Sejm, mainly from the Left and Razem party, together with Federacja to intervene in hospital cases when women were denied the right to save their lives. 

Aborcyjny Dream Team launched an online fund collection to help women who need abortions and raised almost 2 million PLN. They help Polish women in terminating their pregnancies despite the harassment from the government, prosecutorial investigations, constant denunciations and blackmail from right-wing and Catholic politicians, and the Ordo Iuris Institute. Justyna Wydrzycka, one of their activists, has criminal charges for sharing abortion pills with another woman. Her trial started in July 2022. In this case, the informer was a violent partner of the pregnant woman. One of the reasons why she wanted to have an abortion was because of the abuse she experienced from him. He not only prevented his partner from terminating her pregnancy by once again abusing her but also handed over to the prosecutor the correspondence between her and Justyna which served as evidence in the case. At the time when we write this text, Justyna's trial has not yet ended. Her case was commented on not only by Polish NGOs but also by international NGOs, such as Amnesty International and European Union institutions which explicitly considered her actions to be right. Wide social support for Justyna can be observed on the Internet by following the hashtag #JakJustyna (#LikeJustyna). Not only politicians and activists but also thousands of ordinary women declare that they would behave exactly like Justyna – they would help another woman in need of an abortion. Many of them openly say that they have already provided such help, despite the restrictive law that punishes assistance. The member of Sejm, Katarzyna Kotula, was reported to the prosecutor by Ordo Iuris for such a declaration . 

During the time of the campaign (over a year), slogans that once were controversial became very popular: "abortion is OK", "abortion saves lives". They were shouted out by thousands of activists who collected signatures for the bill on the streets. 

The bill was submitted to the Sejm at the end of March 2022 and three months later it was presented during the parliamentary debate by Marta Lempart and Natalia Broniarczyk. The right-wing governing party has a custom of postponing debates until late evening hours and the proceeding of this project was no exception – however, this was the moment a historic thing happened. Natalia Broniarczyk, activist of the Aborcyjny Dream Team used her speech to explain in detail how to perform pharmacological abortion and showed pills that can be used. This action is in full compliance with current law because no provision prohibits informing about abortion. Nevertheless, Ordo Iuris filed another complaint against her. 

Bill "Legalna aborcja. Bez kompromisów" was rejected. The whole groups of United Rights and Confederation voted against it. The only parliamentary group that unanimously supported it was the Left. Almost the entire Civic Coalition group supported the bill. Joanna Fabisiak from Civic Platform voted for rejection and a couple of other members (including Paweł Poncyliusz and Paweł Kowal) did not attend the voting. The majority of the Polish People's Party including Władysław Kosiniak-Kamysz voted against the bill. Poland 2050 was divided and its leader Szymon Hołownia after the voting proposed again to organize a referendum on the right to abortion – a basic human right. 

On the night of 22nd to 23rd June Natalia Broniarczyk appealed in Polish Sejm: 

To politicians proposing an abortion referendum I want to say only one thing: the only legitimate abortion referendum takes place in a private bathroom over a positive pregnancy result. They have 100% attendance, there are no wrong answers and the question is very simple: do I want to continue this pregnancy? … Whether you like it or not, it's none of your business. 

She told only the obvious truth.

Article originally published in Issue 9 of Rupture Magazine. Subscribe or purchase previous issues here.

Notes

1. IPSOS Survey for OKO Press

2. IPSOS Survey for OKO Press, 29th December 2020 

3. The network still operates and will continue to do so until the current law is liberalised