Abortion Law and Human Rights in Poland: The Closing of the Jurisprudential Horizon

Abstract

On 22 October 2020, the Constitutional Tribunal of Poland ruled that an abortion due to foetal impairment was unconstitutional. This article discusses the context of this controversial ruling as well as its main tenets, focusing on the interpretation of the human rights proffered by the Tribunal and on the rule of law concerns raised by the Tribunal’s decision. Against the backdrop of a brief history of the legal regulation of abortion in Poland since 1945, the article offers a critical assessment of the human rights framework used in the Polish abortion debate. Based on a close reading of the Tribunal’s ruling and the dissenting opinions, the article points out the particularities in the Tribunal’s engagement with international law and human rights jurisprudence. The article argues that the Tribunal’s decision is yet another symptom of the crisis in which the rule of law in Poland has found itself since 2015. It bears evidence to the closing of the jurisprudential horizon caused by the political change which has been taking place in Poland since 2015, consisting of the reduction of the role of international human rights debates as a reference in Polish constitutional jurisprudence. The ruling is therefore a portent of Poland’s future compliance with its international commitments in human rights matters.

Consequences of the Constitutional Tribunal’s Ruling of October 22, 2020. On the Citizens’ Bill on Safe Termination of Pregnancy and Other Reproductive Rights

“…First, when drafting the ruling, which concerned one of the most fundamental human rights issues, the Tribunal almost completely ignored, or rather attempted to abuse, the standards of international human rights protection systems in relation to reproductive rights, which Polish law (and Polish courts) must respect (Gliszczyńska-Garbias & Sadurski 2021, 152). As rightfully pointed out by Bucholc, this demonstrates the narrowing of the jurisprudential horizon as a result of the political change taking place in Poland since 2015, which consists in the reduced importance of debates on international human rights as a reference in Polish constitutional jurisprudence (Bucholc 2022).…”

Poland as Gilead. Pop culture fiction and performative protests in the era of the pandemic

“…However, in the late 1990s and in the 21st century, the compromise has been regularly contested by many social organisations making efforts to amend the law. For 25 years, these had not met with any support of a parliamentary majority (Bucholc, 2022; Hussein et al, 2018; Szelewa, 2016).…”

Failure Privilege in Policymaking: Exploitation, (In)visibilization, and Future Projection in Abortion Policy in Poland

“…The Constitutional Tribunal's ruling of 22 October 2020 that delegalized abortion due to irreversible fetal impairment, and thus introduced a near-total ban on abortion in the country, was a quite firm intervention in the local reproductive futurism and regime. as observed by Bucholc, 109 it amounted to a "legal-cultural turn" in the protection of rights and international law. This, we may add, also elicited failurerelated mobilization around the new changes in abortion policy in the sense that building consent and justification for the enforced acceptance of radicalization of abortion policy was achieved by the ruling party through attempts to reimage failure in women's reproductive health.…”

“…Changes in the legal governance of abortion are linked to interpretative, political, and legal contexts of human rights protection. 71 Meanwhile, the impact of constitutional rights manifests itself in whether they include the right to abortion, as in the case of the United States, or the constitutional protection of life, as in the cases of Poland and Honduras.…”