International experts condemn attempt to further restrict abortion in Poland

Warsaw, Poland - Women on Waves and the Sisterhood Network teamed up to fight attempts to further restrict abortion rights in Poland. A case bough by the group of Members of the Lower Chamber of The Parliament (Sejm) to the Constitutional Tribunal argues that the current Polish abortion law which allows for a legal abortion in the case of severe fetal malformation, violates the Polish constitutional protection of the life of everyone (incl. fetuses) under the case reference K 13/17.

Women on Waves, a Dutch non-profit organisation and the Sisterhood Network, an informal support group from Stockholm, Sweden are both supporting women’s right to reproductive freedom by providing access to reproductive healthcare including abortion. Both organizations deal with hundreds of women every month who were denied their right to terminate a pregnancy due to severe fetal anomalies or pregnancy threatening their health or life.

To stop this attempt to further tighten the already very strict Polish abortion law, we requested to be heard by the Constitutional Tribunal which - according to the media - is scheduled to hear testimonies in this case (K 13/17) in the coming months.

The request is accompanied by a Amicus curiae written by Professor Joanna N. Erdman, B.A., LL.M. who is an Associate Professor and the MacBain Chair in Health Law and Policy in the Schulich School of Law, Dalhousie University and Professor Rebecca J. Cook, A.B., M.P.A., J.D., J.S.D. who is Professor Emerita in the Faculty of Law, the Faculty of Medicine and the Joint Centre for Bioethics, University of Toronto and Co-Director of the International Reproductive and Sexual Health Law Program. They are internationally recognized experts in reproductive health and human rights, and they have acted as third party experts in constitutional and human rights cases before domestic, regional and international tribunals on comparative and international abortion law.

This opinion describes the consensus in international human rights law that the decriminalization of abortion on all grounds is based on international and regional human rights treaties.It addresses the following facts:

• The criminalization of abortion contributes to unsafe abortion, adversely impacts vulnerable and marginalized women, and inherently limits the rights of women to physical and psychological integrity, to dignity and worth as human beings and to be free from all forms of discrimination. International human rights law supports the progressive decriminalization of abortion to protect the lives and health of women and to improve their quality of life.
  
• Given that any state action on abortion impacts on the human rights of women, international law sets limits on the state power to criminalize abortion based on principles of non-arbitrariness and proportionality.
  
• To ensure criminal abortion laws are non-arbitrary and proportionate, international human rights law requires as a minimum the decriminalization of abortion on the ground of risk of serious fetal malformation, and procedural protections to ensure safe and respectful access to services under this ground to the full extent of the law.
  

While constitutional courts in the USA, Canada and the UK have ruled that the restrictive abortion laws violate the constitutional rights of women (for example to privacy and prevention of cruel and inhuman treatment) and lead to the legalization of abortion in these countries, it is ironic that this same strategy is now being used to curtail women’s rights in Poland.

If the Tribunal declares the “Law on family planning” to be unconstitutional, this will lead to even more severe violations of women’s human rights under the international law. Even in these very restrictive circumstances theoretically allowing abortion (risks to maternal life or health, fetal anomalies, pregnancy is an effect of a crime) abortions are not provided in Poland.

So far the Polish government has systematically ignored decisions of international institutions as the European Union, European Court of Human Rights, European Court of Justice and also the Council of Europe, which recently called on Poland to immediately grant women access to legal abortion care and services. There are severe international concerns that the rule of law in Poland has been totally undermined by the current far-right government. The decision of the Constitutional Tribunal on this case will be a showcase for the actual state of rule of law in Poland.