Abortion in Poland

Until 1932, abortion was banned in Poland without any exceptions (although an abortion performed in order to save the pregnant woman's life in the absence of any other means to do so, might have been unenforced, as an act of necessity). In that year, the new Penal Code legalised abortion only when there were medical reasons and, for the first time in Europe, when the pregnancy resulted from a criminal act.[8] This made Poland the first country in Europe outside the Soviet Union to legalize abortion in cases of rape and threat to maternal health.[9] Except during the German occupation during the Second World War, this law was in effect from 1932 to 1956. In Nazi Germany, which included territories of Poland from 1939 to 1945, the law allowing unlimited abortions by Polish women was in force since 9 March 1943. This was the only time in the history of Poland when abortion was legal on request, and in fact, abortion for Poles was often forced by Nazis, especially in German concentration camps such as Waltrop-Holthausen and Ravensbrück.[10]

In 1956, the Sejm legalised abortion in cases where the woman was experiencing "difficult living conditions". The interpretation of the change in the law varied from a restrictive interpretation in the late 1950s, to one in which abortion was allowed on request in the 1960s and 1970s. It was not uncommon that women from countries where abortions were restricted, such as Sweden, travelled to Poland to carry out abortions which were accessible and affordable there.[11] The procedural requirements needed for obtaining a legal abortion were changed several times over the years, in 1956, 1959, 1969, 1981 and 1990.[12]

The most important change was that of 1990, after the end of Communist rule, when the Ordinance of 30 April 1990 made access to abortion more difficult. Another major change came in 1993, when the law was further tightened, removing entirely "difficult living conditions" as a ground for abortions. As such, abortions could be legally obtained only in cases of serious threat to the life or health of the pregnant woman, as attested by two physicians, cases of rape or incest confirmed by a prosecutor, and cases in which prenatal tests, confirmed by two physicians, demonstrated that the fetus was seriously and irreversibly damaged.[12] In 1996, the law was amended to allow abortion on social grounds.[13] However, this law was struck down in 1997 by the Constitutional Court.[14]

In June 2011, Polish anti-abortion NGOs collected over 500,000 signatures for a proposed bill to ban abortion in Poland altogether. The bill, while rejected by a majority of the MPs, got enough support to be sent to a Sejm committee for further amendments. The move was criticised by two right-wing opposition parties, Law and Justice and Poland Comes First, which expressed their support for the bill. The left-wing Democratic Left Alliance pursues a pro-choice policy and was against the bill. The ruling Civic Platform, while considering itself in favour of the current legislation, was divided on the matter; more than 60 of the party's MPs voted in favour of the bill.[15]

Poland is one of Europe's most strongly Catholic countries. Despite the Catholic Church opposing abortion, polls show that a majority of Polish people would prefer it to be easier to get an abortion in Poland.[16] However, in 2020, Bishops and lay Catholic groups pressured the governing Law and Justice party to impose a stricter law. This included preventing abortions in the case of foetal abnormalities, which accounted for 98% of all abortions at the time.[17] The Law and Justice party support traditional Catholic values but changing the law was problematic. There was opposition both in parliament and on the streets. In 2016 an estimated 100,000 people, mostly women, protested to block any attempt to tighten the law.[18]

Abortion rights advocates say those numbers reflect the restrictions already in effect, which make it all but impossible for Polish women to obtain a legal abortion, prompting them to seek an illegal abortion or to have an abortion abroad.

"In practice it takes weeks, sometimes months," to obtain a legal abortion, said Karolina Wieckiewicz, a lawyer and activist with the group Abortion Without Borders (Polish: Aborcja bez granic). "Some people decide to risk the battle in Poland; others look for alternatives."

Dunja Mijatovic, the human rights commissioner of the Council of Europe, which advocates for rights and democratic rule, noted that situation in criticizing the court decision.

Protest in Gdańsk against Poland's new abortion laws, 24 October 2020

On 22 October 2020, the Polish Constitutional Tribunal found that abortion on eugenic grounds is unconstitutional as it discriminates against the unborn on the grounds of his/her state of health and violates the right to life of every human being, as protected by Article 38 of the Polish Constitution.[19]

The chief justice, Julia Przyłębska, said in a ruling that existing legislation – one of Europe's most restrictive – that allows for the abortion of malformed fetuses was incompatible with the constitution. After the ruling goes into effect, abortion will only be permissible in Poland in the case of rape, incest or a threat to the mother's health and life, which make up only about 2% of legal terminations conducted in recent years.[20]

Support was expressed by Kaja Godek, who additionally supports the prohibition of abortion when conception occurs as a result of rape. The anti-abortion activist was asked on Radio Zet about the remaining cases of termination of pregnancy. The second option allows abortion if the pregnancy resulted from a prohibited act, such as rape (up to 12 weeks from conception). Godek stated, "I trust that this regulation will also be abolished, because we are for the full protection of life. A child conceived of rape is also a victim of rape. It has the right to conceive."[21]

Most members of the European Parliament condemned Poland's new anti-abortion resolution.[22]

On 27 January 2021, the judgment of the Constitutional Tribunal entered into force following its publication in the Journal of Laws.

The death of a 37-year-old pregnant woman, after her doctors told her they could not perform an abortion of her dead foetus as the foetus's twin was still alive, led to increased protests from women's and abortion-rights activists.[23][24] The family, as well as the women's rights group All-Poland Women's Strike blame the death on the 2020 verdict, claiming it had a chilling effect on Polish doctors.[25]

In September 2015, a civil initiative to introduce a complete ban on abortion was rejected in the Sejm. 178 MPs backed the measure, while 206 voted against.[26]

In April 2016, Polish organizations proposed amended legislation to ban abortion in all cases except to save the woman's life.[27] The bill included penalties to abortion providers with up to five years' imprisonment.[28] The bill passed and was debated in the Sejm from 22 September 2016. The Sejm voted, with the majority in favour of continuing work on the bill.[29] A competing bill proposing liberalization of abortion laws, supported by a civil initiative that succeeded in gathering the required number of signatures, was rejected outright in the same session of the Sejm.[29] If the ban had passed, Poland's abortion restrictions would have mirrored those of Malta and the Vatican, the two countries in Europe with the strongest restrictions on abortion.[30]

Agnieszka Dziemianowicz-Bąk of the Razem National Board during the 2016 protests against a total ban on abortion

On 22 September 2016, on the day when the bill to ban abortion was debated in the Sejm, the Razem party organized a demonstration called "Czarny Protest" ("Black Protest"), initiated by party member Małgorzata Adamczyk. This was part of a larger campaign, in which people published selfies in black clothing in social media, tagged #czarnyprotest (#blackprotest).[31] In the subsequent days, similar protests were being organized in other Polish cities, such as Wrocław, Łódź and Kraków. Thousands of people took part in the protests in various parts of Poland.[32][33] On 1 October 2016, a large protest also took place near the Sejm building, organized by Barbara Nowacka of Inicjatywa Polska, who had collected signatures under a citizens' bill to liberalize the Polish abortion law.[34]

On 3 October 2016, thousands of Polish women went on strike to oppose the proposed legislation for a total ban on abortion. The event was called "Czarny Poniedziałek" ("Black Monday") and was originally proposed in a Facebook post by Polish actress Krystyna Janda.[30][35] The women modeled their strike on the successful strike for women's rights in Iceland in 1975, refusing to attend school, work, or participate in domestic chores.[30] The pro abortion protesters marched in Warsaw, Gdańsk, Łódź, Wrocław, and Kraków, and demonstrators across Europe marched in solidarity.[36] Approximately 98,000 protestors showed up to decry the new bill.[3][37] Supporters of the new legislation held counterprotests and Catholic Masses to express alignment with the abortion ban.[36]

By 5 October 2016, politicians were distancing themselves from the proposed legislation.[3] On 6 October, lawmakers voted the bill down with plans to present a counterproposal from the government.[38]

In 2016, Foreign Policy magazine included Agnieszka Dziemianowicz-Bąk of the Razem party and Barbara Nowacka of Inicjatywa Polska on its annual list of the 100 most influential global thinkers for their role in organizing protests against a total ban on abortion in Poland.[39] In 2018, Forbes magazine included Marcelina Zawisza on its annual European Forbes 30 Under 30 list in the "Law & Policy" category for her role as a co-founder of Razem and one of the organizers of "black protest".[40]

This protest inspired a similar event in Ireland, Strike 4 Repeal, to repeal the Ireland's Eighth Amendment which banned abortion in nearly all cases.[41]

What was especially powerful about the Black Protest was the fact that there were events organized in smaller locations, too.[42]

The Polish Black Protests sparked protests in a number of cities internationally.

The protest activities included not only demonstrating in the streets but also (depending on the location) high school students strikes, men's support events, queer community solidarity events, sending letters, changing profile pictures in the social media, fundraising events, entrepreneurs support, doctoral students' strike, prenatal testing, collective meditation, a running race, etc.

Symbols of the protest included umbrellas and coat hangers. Specific weather conditions on 3 October 2016 contributed to establishing a symbol of the latest women's protests in Poland. It was raining during that day but still, thousands of people attended events, bringing their umbrellas to demonstrations to protect themselves from the rain. It also had its symbolic dimension - crowds visually changed into a sea of umbrellas which embodied the purpose of the Black Protest - protecting women from proposed legislation that would restrict their reproductive rights. Coat hangers were brought to the demonstrations as a symbol of the simplest and most primitive instrument that could be used for conducting abortion. Earlier in 2016 (in April), coat hangers were also sent by citizens to the contemporary Prime Minister of Poland, Beata Szydło, as a protest against her support for the abortion ban.[43]

However, though social media has empowered Polish women, for some it has led to being ostracized by family members or colleagues, and has even cost them their careers. Among the best-known instances was that of Ewa Wnorowska, an educator in Zabrze who has dedicated her life to helping students at a school for children with disabilities. On the day of the first Black Protest, as the movement in support of women's rights in Poland became known, she took a photograph with eleven other colleagues, all wearing black, to show solidarity with the cause. Unbeknownst to her at the time of posting, the photograph gained national traction; it was being splashed over Polish newspapers, social media, and debated far and wide. One of her male colleagues reposted the image with inflammatory comments, and lodged a formal complaint in front of the Disciplinary Board of Education against her.[44] Since then, Human Rights Watch published a 75-page report in February 2019 titled "'The Breath of the Government on My Back': Attacks on Women's Rights in Poland", which has found that government agencies have dragged employees who support women's rights protests or collaborate with women's rights groups before disciplinary hearings and threatened their jobs. The report argued that these were not exceptional cases. A climate of fear arose in Poland, where cases like Wnorowska's were used to show ordinary people that speaking out against the government has consequences.

Although the strikes did not result in a complete reversal of anti-abortion laws in Poland, it brought the conversation of women's reproductive rights to national attention. Thousands of women wore black in solidarity with the cause.[45] Moreover, the protest succeeded in deterring the government from passing a proposed law that would restrict all abortions.[46]

2020 Polish protests in Kraków

On 22 October 2020, the Constitutional Tribunal, consisting mainly of judges appointed by the ruling party Law and Justice (PiS), declared the law authorising abortions for malformed fetuses to be unconstitutional, effectively banning most of the small number of official abortions carried out in Poland.[47] Street protests by people opposed to the ruling took place on 22 October, and in 60 Polish towns on the night of 23 October, and again on 24 October, in the town centres, in front of PiS offices, and in front of the office of religious administrations.[48] On 25 October, protesters staged sit-ins in Catholic churches, disrupting Sunday Mass in several cities, including Katowice and Poznań.[49]

Protesters against the Constitutional Tribunal's ruling gather in Warsaw on October 30th, 2020

On 23 October, the prime minister Mateusz Morawiecki issued an order for the Military Gendarmerie to help the civilian police in the "protection of safety and public order" starting from 28 October 2020; a nationwide women's strike was scheduled for that day.[50] The official reason for the order was the COVID-19 pandemic in Poland.[51] TVN24 commented that the order was issued during the women's rights protests. The Polish Ministry of Defence stated on Twitter that the Military Gendarmerie's policing role was "standard" and unrelated to the women's rights protests.[52]

UN independent human rights experts criticize the Poland court's ruling for a near complete ban on abortions on the grounds of fatal or severe foetal impairment. They also called the Polish authorities to respect the rights of men and women protesting against the court's ruling.[53]

On 30 October 2020, about 100,000 people took to the streets of Warsaw in a protest against the Polish authorities over the ruling on abortion rights.[54]

Sources:[68] The Polish Ministry of Health publishes yearly official data on legal abortions and their reasons. The number has been stable over the years, between 1,000 and 2,000. In 2019, there were 1,110 legal abortions, 1,074 of them were for cases of fetal defects. Among these, 271 were for Down syndrome without other anomalies, and 60 cases were for Patau syndrome or Edwards syndrome without other anomalies.[69]

Estimates vary as to how many illegal abortions are carried out each year. The Federation for Women and Family Planning, a feminist NGO, gives a range between 80,000 and 200,000 abortions,[70] and about a quarter of all Polish women had terminated a pregnancy. The Public Opinion Research Center has the same estimate.

The BBC reported estimates of illegal abortions per year ranging between 10,000 and 150,000, compared to only 1,000–2,000 legal abortions.[71]

Another way to guess the number of illegal abortions in Poland is to look at worldwide behavior and trends. According to Sedgh, Singh, Henshaw and Bankole in a 2012 article published in The Lancet,[72] drawing on various reports, the number of fertile women (aged 15–44) who undergo an abortion ranges between about 10 to 40 abortions per 1,000 women, for the 2000s, "in all regions of the world, regardless of the status of abortion laws"; this would imply lower to upper estimates of yearly abortions by Polish women of about 75,000 to 300,000.

Some women seek abortions abroad with Germany, the Czech Republic and Slovakia being among the more popular destinations for abortions. The UK, Austria, and Ukraine are also countries some women travel to for abortions.[73][74]