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On the 22nd of October 2020, the Constitutional Tribunal of Poland ruled that the present law authorising abortions for malformed foetuses was unconstitutional, banning most abortions performed in the country. Poland already had some of the harshest restrictions on abortion in Europe. This has led Polish women to take advantage of the European Union’s freedom of movement and look for safe abortions in other member states.
Abortion and Conservatism in Poland
Formalised by the law of 1956, abortion was legal in Poland during the period of state-socialism, when pregnancy termination was possible based on social grounds. Despite the many protests organised by several women’s organisations, new legislation was adopted in 1993 that severely restricted the possibility of having a legal abortion. In particular, according to Article 4a of the new law, termination of pregnancy is possible only in three specific circumstances:
1. If the pregnancy constitutes a threat to the life or health of the mother.
2. If the pre-natal examination or other medical reasons point to a high probability of severe and irreversible damage to the foetus or of an incurable life-threatening disease of the child.
3. If there is a confirmed suspicion that the pregnancy is a result of a criminal act, the termination of pregnancy in this case is allowed, if the woman is less than 12 weeks pregnant.
Performing an illegal abortion is a criminal offence subject to a fine and/or 10 years imprisonment.
However, more recently, the governing Law and Justice party has tried to ban abortion as a whole. In March and April of 2016, an initiative to completely ban abortion led to a series of street protests and the mobilisation of women’s organisations. The initiative was eventually voted down.
Access to contraceptives in Poland is also quite restricted, as in most cases no refunds are available from the National Health Fund and the costs of contraceptives need to be covered privately. Consequently, the use of contraceptives in Poland is one of the lowest in Europe. A recent survey shows that methods such as coitus interruptus or the “natural method” (the so-called “marriage calendar”), which carry no cost, are popular, while modern contraception methods, such as intrauterine devices (IUD), have little use.
Until 2015, emergency contraception was only available with an adequate prescription. In February 2015, the law was amended so that any person at least 15 years old was free to purchase the pill in a pharmacy, without the need of a prescription. This law was reversed by the current government in March 2016, and again emergency contraception is only available after a prescription. Additionally, pharmacists started to use the so-called “conscience clause” which allows them to refuse sell of contraception in their pharmacies.
In 2019, a group of MPs from the Law and Justice party referred the abortion law, then in force, to the Constitutional Tribunal. The Tribunal is mostly composed of judges nominated by Law and Justice, after a series of moves by the party to have more control over the judiciary.
In October 2020, the Constitutional Tribunal ruling banned abortion on the grounds of severe health defects of the foetus – which accounted for 98% of all legal terminations in Poland in 2019. One opinion poll suggested 59% of Poles disagreed with the ruling. Abortion is now only possible when a mother’s health is at risk, or in cases of criminal acts.
With these restrictions, Polish women are turning to the freedom of movement in the European Union – which means that abortions available in one member state are available to all citizens of the EU. A situation that is not new.
Freedom of Movement and Medical Tourism
Until 2018, Ireland also had restrictive laws on abortion. The Eighth Amendment of the Constitution Act 1983 equated the unborn foetus’ life to that of its mother and allowed for abortion only in circumstances where the life of a pregnant woman was at risk.
Abortion law in Ireland received worldwide attention resulting from the death of Savita Halappanavar, who had been denied an abortion while suffering from a septic miscarriage. This case resulted in the Protection of Life During Pregnancy Act of 2013, which allowed for abortion when the pregnancy endangers a woman’s life, including through the risk of suicide.
In 2018, this amendment was replaced by the Health Act 2018, which permitted abortion in the first 12 weeks of pregnancy and later in cases of risk to the woman’s life or fatal malformations of the foetus. Abortion services commenced on 1 January 2019.
Before the Health Act of 2018, women in Ireland seeking abortions often found them abroad, typically in Britain. In 1992, the Attorney General sought to prevent a 13-year-old, who had become pregnant as a result of rape, from obtaining an abortion in England. The Irish Supreme Court ruled in favour of the girl. This case led to the thirteenth and fourteenth amendments to the Irish constitution, legalising women travelling abroad for abortions.
After the passage of the thirteenth amendment in 1992, the practice became more common. In 2001, an estimated 7.000 women travelled abroad to obtain an abortion. Statistics showed that 4.149 Irish women had abortions in Britain in 2011, and 3.265 did so in 2016. A study found that in 2014 a total of 5.521 women gave Irish addresses to English and Welsh clinics that provided abortion services. In some cases, women travelling do it with the assistance of the Abortion Support Network – a UK-based charity that helps women in countries such as Poland, Malta and (formerly) Ireland to obtain abortions abroad.
Abortion is also illegal in Malta, where the practice is a criminal offence punishable with 18 months to three years in prison. It is currently the only country in the European Union to ban abortion in all cases. A key argument against the decriminalization of abortion is to preserve Maltese national identity as rooted in conservative politics, Catholic morality, and family values.
It is estimated that 300-400 women a year travel out of Malta to perform abortions, mostly to the UK (around 60). As a result of the ongoing pandemic and closing of borders, this has become impossible. The Abortion Support Network saw a dramatic increase in calls to its hotline when borders closed in March of last year.
Abortion Laws in Europe
Currently, 24 EU member states allow abortion on request – everyone but Poland, Malta, and Finland. In Finland, a woman can have an abortion with a note from two doctors and a social or financial reason to justify her decision. As mentioned, Malta is the only EU country to prohibit abortion in any case. Poland now has, after Malta, the most restrictive abortion law of any EU member state.
The European Union follows a principle of subsidiarity as laid down in article 5 of the Treaty of the European Union – meaning that decisions are the responsibility of the member states if the intervention of the EU is not necessary. Additionally, under the principle of proportionality (article 5 as well), the EU must only act when it is necessary to achieve the objectives of the treaties. In 2014, both the European Commission and the EU Parliament stated that Member States are free to choose their own abortion legislation since there exists no right to abortion under the treaties of the EU and other international law. Having this in mind, it seems unlikely that the EU will find legal grounds, or even motivation, to impose an EU abortion law without amending the treaties.
With the tightening of abortion restrictions in Poland, and the continued growth of conservative and populist movements in the country, Polish women seeking an abortion will probably have no option in the near future but to travel abroad, by their own means or with the support of organisations. This provides a daunting preview into the tightening of other civil liberties in Poland and in other countries.
The Economist, Amnesty International UK, ABC News & The Guardian
João Sande e Castro