On October 22, Poland’s Constitutional Tribunal declared unconstitutional the country’s 1993 law that allowed for eugenic abortion in cases where there was a “strong likelihood” of fetal handicap (e.g., Down syndrome). The court found that allowing eugenic abortion violated the constitutional requirement for respect and protection of human dignity.

Under communism, abortion on demand was permitted in Poland due to “difficult socio-economic conditions.” The revision of the law in 1993 allowed for abortion only in the case of serious threat to the life or health of the mother (attested to by two independent physicians), and for rape, incest, or eugenic reasons (fetal handicap). The October 22 ruling nullified the eugenic exception.

The Polish Tribunal announces decisions in the courtroom, usually accompanied by oral commentary, with its written opinion following separately, typically in a few days. In their oral remarks during the court session, judges said that the “strong likelihood” criterion for allowing eugenic abortion did not in fact establish with certainty that a fetus was handicapped, but only suspected to be so.  The mere “likelihood” of handicap, especially when such abortions posed no threat to maternal life, clearly subordinated unborn life to other values.   

Official Polish statistics report a total of 1,100 abortions in 2019, of which 1,078 were for eugenic purposes. (Gazeta Wyborcza, a major left-wing Polish daily, claims there are 100,000-150,000 illegal abortions annually in Poland, without providing any documentation as the basis for that claim.)

The Tribunal’s decision, which came on a motion of pro-life Parliamentarians to review the constitutionality of the 1993 abortion law, makes Poland’s abortion laws more protective than any other country in Europe, and is likely to ignite a firestorm—on the continent and beyond. It is also likely to fuel charges of Polish “totalitarianism,” which have been launched in response to changes the ruling conservative Law and Justice Party has made to the Polish court system since 2016, which some claim undermine “judicial independence” and the Tribunal’s “institutional integrity.” The Law and Justice Party is responsible for selecting a majority of the Tribunal’s current justices. 

A translation of the Tribunal’s decision follows.

File # K1/20

DECISION

In the Name of the Republic of Poland

Warsaw, October 22, 2020

The Constitutional Tribunal, consisting of the panel of

Julia Przyłębska, Presiding

Zbigniew Jędrzejewski

Leon Kieres

Mariusz Muszyński

Krystyna Pawłowicz

Justyn Piskorski – [writing the opinion—translator note]

Piotr Pszczółkowski

Bartłomiej Sochański

Jakub Stelina

Wojciech Sych

Michał Warciński

Jarosław Wyrembak

after having considered the case with the participation of the petitioner, the Sejm (Parliament), and Procurator General, in its session on October 22, 2020, on the motion of a group of Members of Parliament regarding the question of   constitutionality of:

—Article 4a, paragraph 1, point 2 and Article 4a, paragraph 2, sentence one of the Act on Family Planning, Protection of the Human Embryo and the Conditions for Allowing for Abortion of January 7, 1993 (Journal of Laws, Nr 17, position 78 as amended ) with Article 30 of the Constitution of the Republic of Poland— regarding whether the legalization of eugenic practices with regard to a child yet unborn, denies him the same respect and protection of human dignity; and

Eventually, if the above position is not affirmed,

—Article 4a, paragraph 1, point 2 and Article 4a, paragraph 2, the first sentence, of the Act on Family Planning, Protection of the Human Embryo, and the Conditions for Allowing for Abortion of January 7, 1993, with Article 32, paragraphs 1 and 2 of the Constitution of the Republic of Poland—regarding whether, by legalizing eugenic practice with respect to the right to life of a child yet unborn and conditioning the legal protection of the yet unborn child’s life on the state of his health constitutes direct discrimination, which is prohibited; and

—Article 4a, paragraph 1, point 2 and Article 4a, paragraph 2m the first sentence of the Act on Family Planning, Protection of the Human Embryo, and the Conditions for Allowing for Abortion of January 7, 1993 with Article 38 in conjunction with Article 31 as Articles 2 in conjunction with Article 42 of the Constitution of the Republic of Poland—regarding whether, by legalizing abortion without sufficient justification of the need to protect other values, the law, or Constitutional freedom, and by employing undefined criteria for that legalization, it thereby violates Constitutional guarantees for human life.

Declares:

Article 4a, paragraph 1, point 2 of the Act on Family Planning, Protection of the Human Embryo and the Conditions for Allowing for Abortion (Journal of Laws, Nr 17, position 78 of 1995; Nr 66, position 334 of 1996; Nr 139, position 646 of 1997; Nr 141, Position 943 and Nr 157, Position 1040 of 1999; Nr 5, Position 32 and Nr 154, Position 1792 of 2001) is not in agreement with Article 38 in conjunction with Article 30  in conjunction with Article 31, paragraph 3 of the Constitution of the Republic of Poland.

It further declares:

—to enjoin further proceedings in the matter.

The decision was handed down by majority vote:

Julia Przyłębska, Presiding

Zbigniew Jędrzejewski

Mariusz Muszyński

Leon Kieres (separate vote)

Krystyna Pawłowicz

Stanisław Piotrowicz

Justyn Piskoraski

Piotr Pszczółkowski [separate opinion]

Bartłomiej Sochański

Jakub Stelina

Wojciech Sych

Michał Warciński

Jarosław Wyrembak