Poland’s Constitutional Tribunal Rolls Back Reproductive Rights

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Protestors prepare to take part in a car demonstration organized by Women’s Strike against imposing further restrictions on abortion law in Poland. Krakow, Poland on October 19th, 2020. 
© 2020 Beata Zawrzel/NurPhoto via AP

(Berlin) – The Polish Constitutional Tribunal’s ruling to invalidate the constitutionality of access to abortion on the ground of “severe and irreversible fetal defect or incurable illness that threatens the fetus’ life” will further harm women and girls and violates their human rights, Amnesty International, the Center for Reproductive Rights, and Human Rights Watch said today.

Amnesty International, the Center for Reproductive Rights, and Human Rights Watch sent independent expert monitors to observe the hearing of Poland’s Constitutional Tribunal and to analyze the decision.

“Today’s judgement puts the health and lives of women in Poland at great risk and violates Poland’s obligations under international human rights treaties to refrain from retrogressive measures that roll back women’s rights to sexual and reproductive health care,” said Leah Hoctor, regional director for Europe at the Center for Reproductive Rights. “Poland must act now to bring its law into line with other European Union member states and legalize abortion on a woman’s request or broad social grounds, and guarantee women’s full and effective access to care in situations where women’s physical or mental health is at risk.”

“This judgement is the result of a coordinated systematic wave of attacks on women’s human rights by Polish lawmakers, and represents their latest attempt to ban abortion in Poland,” said Esther Major, senior research adviser at Amnesty International. “Legal prohibitions on abortion do not prevent abortion or reduce the rates of abortion; they serve only to damage women’s health by pushing abortions underground or forcing women to travel to foreign countries to access abortion care they need and to which they have a right. Although all women may be affected by this cruel judgement, marginalized groups of women who cannot afford to travel will disproportionately suffer the consequences of the judges’ actions today.”

“Instead of safeguarding and protecting people’s rights, Poland’s Constitutional Court has contributed to violating them,” said Hillary Margolis, senior researcher on women’s rights at Human Rights Watch. “The European Commission and EU member states should urgently address breaches of rule of law and their impact on fundamental rights in Poland. Ensuring women’s human rights, including their reproductive rights, is essential to upholding EU values. Poland’s flagrant disregard for these values is dangerous not only for women and girls in Poland, but throughout Europe. Women in Poland have sustained attacks against their rights again and again and will not stop fighting for their right to abortion care. We stand with them every step of the way.”

Background
Poland has one of Europe’s most restrictive abortion laws. It is one of only two of twenty-seven EU member states that do not allow abortion on request or on broad social grounds. Under Polish law, abortion is only permitted to safeguard the life or health of women, or where the pregnancy results from rape. Prior to today’s ruling it was also legal in situations of “severe and irreversible fetal defect or incurable illness that threatens the fetus’ life.” Even in situations in which abortion is legal, multiple barriers combine to severely limit access to care in practice.

The ruling Law and Justice party has repeatedly moved to further curb sexual and reproductive health and rights, including through a bill that would have enacted a total abortion ban. Such attempts have been met by mass public protests and condemnation by international human rights bodies and European institutions.

Since coming to power in 2015, the Law and Justice government has undermined the Constitutional Tribunal’s independence and its effectiveness as a check on the executive. The Council of Europe’s legal advisory body, the Venice Commission, and the European Commission have censured the Polish government’s interference with the Tribunal. In its September 2020 rule of law report, the Commission noted that “concerns over the independence and legitimacy of the Constitutional Tribunal” remain unresolved. In 2017, the European Commission launched proceedings against Poland under Article 7(1) TEU in 2017 due to breaches of rule of law, including concerns related to the lack of an independent and legitimate constitutional review.