All or nothing. Life and death vote on pro-abortion bills

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Key Issues

- Four bills on access to abortion have been submitted to the Polish Parliament.

- The bills significantly expand access to abortion, in particular by legalising abortion ‘on demand’ (without further requirements) up to a certain week of pregnancy.

- The bills allow abortion based on eugenic grounds, which have already been declared unconstitutional.

- The Sejm will hold a first reading of the bills on 11 April of this year, followed by a vote on whether to reject them or send them back for further work.

Introduction

The main issue in last year’s general election campaign was abortion. Politicians declared that abortion would become widely available in Poland[1], and the assertion of the existence of a right to abortion was promoted in the public sphere.[2] Under these conditions, four bills on abortion were submitted to the Sejm. These parliamentary bills were drafted by members of the New Left, the Third Way alliance (Poland 2050 and the Polish People’s Party PSL), and the Civic Coalition (Koalicja Obywatelska), which are all members of Prime Minister Donald Tusk’s ruling coalition. The statements to the media made by prominent politicians give the impression that they are participating in a competition to draft a normative act that will legalise abortion as widely as possible, and that they are proud seek the legalisation of the killing of unborn children.

The first reading of the bills under discussion in the Sejm is scheduled for 11 April. After that, the MPs will decide whether to reject the bills or to send them back for further work. According to the decision of the Speaker of the Sejm, Szymon Hołownia, all these bills will be voted on as a package, so that, as he himself stated, all of them, without exception, will be passed on for further work, avoiding disputes within the ruling coalition that could lead to the rejection of some of the proposals. As Speaker Hołownia himself emphasised, he hopes that, as a result of this process, the current Sejm will be the first since 1996 in which a bill to extend the access to abortion will not be rejected upon its first reading.[3] But the Speaker of the Sejm has failed to take into account that it is not without reason that draft amendments to the abortion law have all been rejected up to now. The Constitution of the Republic of Poland of 1997[4], in Article 38, establishes the principle of the legal protection of life: „The Republic of Poland guarantees to every human being the right to legal protection of life.” Such protection may not be restricted beyond what is permissible in a normal functioning state, even in a state of war or a state of emergency[5]. Furthermore, with its ruling of 28 May 1997[6], the country’s Constitutional Tribunal initiated a line of pro-life jurisprudence that has remained consistent to this day. Therefore, there was – and is – no legal basis for passing a law allowing for the killing of unborn children.

The bills of the New Left

On 13 November 2023, the New Left parliamentary group submitted a draft law “on safe abortion” to the Sejm[7]. In Article 1(1), the authors state that „every person has the right to decide on his or her own fertility, procreation, and parenthood”. This issue appears to be regulated by the Polish Constitution in Article 30, which provides for human dignity, stating that „the innate and inalienable dignity of the human being is the source of human and civil freedoms and rights. It is inviolable and it is the duty of the public authorities to respect and protect it”. In turn, Article 2 of the draft states that abortion will be made available – with no reasons being given – until the end of the 12th week of pregnancy. After this period, abortion will be possible in the cases specified in the provision, i.e. 1) when the life or health of the pregnant person – it is worth noting that the noun used is not ‘woman’, but ‘person’ – is at risk; 2) for embryopathological reasons; and 3) when the pregnancy has occurred as a result of a prohibited act. In the second and third cases, abortion is permitted until the end of the 24th week, although an exception has been added according to which, if abnormalities found in the foetus prevent its subsequent viability outside the mother’s body, abortion is also permitted after the 24th week. Abortion in this case must be requested by the woman and must be carried out without undue delay, but no later than 72 hours after her request. The request may be made in any form. According to Poland’s Act on Family Planning, Protection of the Human Foetus, and Conditions for Permitting Termination of Pregnancy[8] that is currently in force (hereafter the Family Planning Act), the woman’s written consent is required as well. But with regard to pregnancy resulting from a criminal act, formal issues have been clarified in the New Left’s bill in relation to the Family Planning Act. One of them is that the prosecutor will now have to declare that a pregnancy results from a prohibited act within seven days of the ‘pregnant person’s’ request. The bill also introduces pharmacological abortion as one of the methods of terminating a pregnancy. Pills to induce a miscarriage would be prescription-based and distributed in pharmacies. The patient undergoing an abortion would be able to receive outpatient or hospital care during the abortion procedure. The drafters also addressed the question of the conscience clause’s validity. A healthcare provider who has a contract with the National Health Fund for the care of a pregnant woman would be obligated to provide an abortion. Under Article 5 of the draft, if a doctor refuses to perform an abortion on the basis of the conscientious objection clause, the head of the ward or the health facility would designate another doctor to perform the procedure. The draft provides a safeguard in the event that all doctors invoke this clause. In such a case, the healthcare provider would have to turn to a subcontractor to provide the service in that facility. If the healthcare provider does not fulfil its obligation to provide abortion services, the National Health Fund will terminate their contract with it. This shows that, for the bill’s drafters, the provision of a service for the killing of an unborn child is more important than the care offered to pregnant women and their children in a healthy birth.

In Article 6 of the draft, the authors repeal Article 152 of the Criminal Code[9]. This provision states: „§ 1. Whoever, with the consent of a woman, terminates her pregnancy in violation of the provisions of the law, shall be punished by imprisonment for up to three years. § 2. Whoever assists or induces a pregnant woman to abort her pregnancy in violation of the provisions of the law shall be punished with the same penalty. § 3. A person who commits an act referred to in § 1 or 2 when the conceived child has attained the ability to live independently outside the body of the pregnant woman shall be punished by imprisonment for a term of between six months and eight years.” It should be added that it is already the case that a woman who has an abortion in Poland does not face any legal punishment herself. In the proposed bill, Articles 4a and 4b of the Family Planning Act are also repealed in their entirety. These provisions concern the conditions for abortion and the right to free abortion in the cases strictly defined in the current Article 4a(1). The vacatio legis is set at three months from the date of promulgation.

The second draft law, which was also submitted by the New Left parliamentary group on 13 November 2023, amends the Penal Code[10]. According to the draft, §1[11] and §2[12] of the above-mentioned Article 152 of the Penal Code will be repealed. Paragraph 3[13] would likewise be amended. According to the amendment, abortion after the 24th week of pregnancy would be punishable by up to five years’ imprisonment instead of the current eight years. The draft further adds §4[14] and §5[15], according to which no offence (as stated in §3) will be committed if an abortion is performed after 24 weeks of pregnancy in the case of a serious and irreversible abnormality of the foetus or an incurable disease threatening its life. The offence referred to in §3 is also not committed if the perpetrator is the pregnant woman’s next of kin (e.g. her husband). The Act would enter into force 14 days after its promulgation.

The bills submitted to the Sejm by the New Left contradict one another. This can be seen in regard to the Penal Code’s provisions. One bill abolishes a provision of the Penal Code in its entirety, while the other changes its content. This shows the drafters’s own uncertainties as to their own bills’ validity. It also shows their inconstitency, as they were unable to prepare a single reliable draft of a legal act. This may weaken the citizens’ trust in the state and its laws.

The amendment to the existing law proposed by Third Way (Poland 2050 and the PSL)

Another bill legalising abortion was submitted on 23 February 2024 by a group of MPs from the Third Way electoral coalition (Szymon Hołownia’s Poland 2050 and the Polish People’s Party PSL)[16]. This amendment introduces a change to the current Family Planning Act. In Article 4, which deals with the introduction of family life education into school curricula, contraceptive education is added. Moreover, the draft reinstates the provision that was in force before the Constitutional Tribunal’s ruling, which abolished the eugenic clause[17] that allowed for abortions to be performed in the case of a serious and irreversible abnormality of the foetus or an incurable disease threatening its life. According to the draft, abortion may be performed when „the results of examinations reveal a high probability of serious and irreversible defects of the foetus or an incurable disease threatening its life”. In such a case, an abortion could be performed as long as the foetus could not survive outside the womb. The drafters assumed that abortion would be performed by all methods available according to current medical knowledge. With regard to pregnancy resulting from a prohibited act, the authors assume, in contrast to the New Left’s draft, that the prosecutor, at the request of the victim or her legal representative, will determine the above by means of a decision within three calendar days from the date of the request’s submission. If the prosecutor refuses to confirm the pregnancy as a result of a prohibited act, the victim or her legal representative has the right to file a complaint with the district court. The deadline for considering the complaint is three calendar days from the complaint’s date of receipt. An institution that has a contract with the National Health Fund for the care of a pregnant woman is obliged to terminate the pregnancy. The bill provides that the termination of pregnancy shall be carried out no later than 72 hours after the pregnant woman has expressed her will to do so. The bill would enter into force 14 days after its promulgation.

The draft stipulates that the Minister of Health will establish by decree a detailed procedure for ascertaining the circumstances involving, among other things, a threat to a woman’s health or life, including „in particular, mental health.” Explicitly referencing mental health is something of a novelty, which is probably intended to broaden the conditions under which an abortion could be performed. In legal terms, however, a provision constructed in this way changes nothing. Abortion on so-called mental health grounds is incompatible with Poland’s laws and Constitution, and will remain so even if such a bill is enacted into law.[18]

The Civic Coalition’s own bill

The Civic Coalition has submitted the last of the abortion bills. The bill on informed parenthood[19] was submitted to the Sejm on 24 January 2024. Unlike the previous proposals, this bill repeals the current Family Planning Act. This is the fourth bill with the same title to be submitted to the Sejm in 20 years, and it contains similar solutions. Attempts to pass all the previous bills failed as they were rejected after the first reading.

Article 5(1) of this new bill explicitly states that ‘every pregnant person has the right to a medical abortion during the first 12 weeks of pregnancy’. After that, abortion is possible in three cases. These are 1) if the pregnancy endangers the life or health of the pregnant woman, 2) if there is a high probability of serious and irreversible foetal defects or an incurable disease endangering its life, or 3) if there are reasonable grounds to suspect that the pregnancy is the result of a prohibited act. In the second case, abortion would normally be possible until the 24th week of pregnancy. However, if the disease or abnormality detected prevents the foetus from living independently and there is no possibility of a cure, abortion would be allowed without any restrictions up to the end of the pregnancy. In the case of pregnancies resulting from criminal acts, abortion would be available up to the 18th week of pregnancy based on a declaration by the ‘pregnant person’ (under the threat of criminal liability in the event of a false statement).

The abortion would be performed inside or outside a medical facility using all available methods according to current medical standards. Similarly to the bills drafted by The New Left, the legislator assumes that a healthcare provider who has a contract with the National Health Fund to provide care for a pregnant person will provide comprehensive services, including abortion. It is acceptable to use a third party for this purpose. It is important to note that another bill on informed parenthood, which is currently under discussion, provides for the repeal of Article 2 of the Children’s Ombudsman Act, whose first paragraph states that „a child is any human being from conception to adulthood”[20]. The period of vacatio legis for the bill on informed parenthood proposed by the Civic Coalition led by Prime Minister Donald Tusk’s Civic Platform (PO) is 14 days.

Conclusions

The bills submitted to the Sejm by the New Left and the Civic Coalition allow access to abortion up to a certain stage in a child’s prenatal life. In this case, the drafters do not take into account the conditions on which the termination of a pregnancy would depend for its fulfilment. An extended period during which abortion is allowed would be dictated by special circumstances, which are also included in the bills. In all cases, abortion requires the consent of the pregnant woman. Significantly, some bills use the term ‘pregnant person’ rather than ‘pregnant woman’. The drafters have provided for a short vacatio legis in all the bills.

All the bills under discussion violate Poland’s constitutional imperative to ensure the legal protection of human life to everyone equally, regardless of their state of health or stage of development (Article 38 of the Constitution). It should be noted that the Polish Constitution does not allow the right to life to be restricted even in a state of war or emergency (Article 233(1-2) of the Constitution). Furthermore, the drafts contradict the Constitutional Tribunal’s established jurisprudence on the issue of abortion’s legality.

Dr Łukasz Bernaciński – Member of the Management Board of the Ordo Iuris Institute

Dr Magdalena Lis – expert cooperating with the Ordo Iuris Institute