The appeal against pro-abortion activist Justyna Wydrzyńska’s conviction: Handing out abortion pills is like offering a cup of soup?  

Ordo Iuris

• The trial of Justyna Wydrzyńska, an activist from the Abortion Dream Team group who was convicted of aiding and abetting a medical abortion, took place in the Court of Appeals in Warsaw.

• In March 2023, this activist received a sentence of restriction of liberty for giving abortion pills to a woman who was pregnant with twins. At the time, this conviction made the news in the international media.

• Wydrzyńska’s defense team appealed the Regional Court’s verdict and requested that the case instead be dropped.

• The activist’s attorneys argued their position on the basis of the alleged “neo-judge” status of Judge Agnieszka Brygidyr-Dorosz, who sentenced Wydrzyńska.

• These attorneys also pointed out that, in their opinion, the act resulted in a very low degree of social harm. During the hearing, one of Wydrzyńska’s defense attorneys stated that “a fetus is not a human being.”

• The prosecutor, on the other hand, is demanding that the verdict be reversed and that the case be remanded back to the Regional Court.

• The Ordo Iuris Institute is participating in the proceedings as a civil society organization. Ordo Iuris has submitted a position paper to the Court of Appeals responding to the defense’s arguments. We are demanding that Justyna Wydrzyńska’s conviction be upheld.

• The verdict regarding the appeal will be announced on February 13.

On Thursday, January 30 the trial of Justyna Wydrzyńska, an activist from the Abortion Dream Team (ADT) group who was convicted of aiding and abetting a medical abortion, took place in the Court of Appeals in Warsaw. A group of pro-abortion activists demonstrated in front of the court’s entrance at the time. On the other side of the street were activists from the Pro-Right to Life Foundation (Fundacja Pro - Prawo do Życia).

Law enforcement took up this case after a complaint was submitted by the husband of a woman to whom Justyna Wydrzyńska had given abortifacients. The Prosecutor’s Office formally accused this activist of a crime under Article 152 § 2 of the Criminal Code, which criminalizes aiding and abetting an abortion in violation of the law. Wydrzyńska was also accused of storing pharmaceuticals with the intent of selling them without a permit, which is prohibited by Article 124 of the Pharmaceutical Law. Wydrzyńska pleaded not guilty and explained that she had been motivated by compassion and emotion in providing the abortion pills.

Wydrzyńska’s trial began in April 2022.The Ordo Iuris Institute was allowed to participate in the proceedings by the Regional Court for Warsaw-Praga as a civil society organization due to the need to protect important societal and individual interests. In July 2022, the Institute submitted an opinion to the court in which it demonstrated that no Polish or international law exists that would oblige the state to accept an abortion. The Polish state therefore has the right to punish the aiding and abetting of an abortion that occurred in violation of the law.

The accused defended herself by claiming that the woman to whom she gave the pills was the victim of domestic violence perpetrated by her husband. The information she had about this alleged violence in the woman’s home had been obtained from another pro-abortion activist, however. It is important to note that Justyna Wydrzyńska understands violence very broadly – such as by including the children’s father’s efforts to prevent the abortion, for instance.

Ultimately, the court of first instance found Wydrzyńska guilty of aiding and abetting a medical abortion. The activist was sentenced to eight months of restriction of liberty by performing community service of 30 hours per month. She was nevertheless acquitted of the charge of storing pharmaceuticals with the aim of selling them without a permit.

Wydrzyńska’s defense team then filed an appeal against the Regional Court’s ruling. The Ordo Iuris Institute therefore submitted its opinion regarding the arguments made by the defendant’s attorneys to the Court of Appeals in Warsaw prior to the appeal hearing.

The “neo-judge” argument is heard again

Justyna Wydrzyńska’s defense alleged before the court of second instance that the first court had been improperly staffed. One of the arguments they made in an effort to prove this was an objection to the fact that the Ordo Iuris Institute had been allowed to participate in the proceedings – despite the fact that Ordo Iuris has been involved in the protection of the lives of unborn children for many years, and its participation in the proceedings was further justified by the need to defend a societal as well as individual interests: namely, the protection of the life of unborn children.

The defendant’s attorneys further claimed that there were reasonable doubts about Regional Court Judge Agnieszka Brygidyr-Dorosz’s impartiality which should result in her disqualification. They stressed the fact that Brygidyr-Dorosz, who had ruled on Justyna Wydrzyńska’s case, had been appointed by the National Council of the Judiciary after 2018, which they said is supposed to be unconstitutional (i.e., she is one of the so-called “neo-judges”). They also alleged that the judge lacked impartiality due to the fact that she had requested a delegation at the Court of Appeals, a decision that would have been made at the discretion of then-Minister of Justice Zbigniew Ziobro, who is known for his anti-abortion views. In response, Ordo Iuris stressed that the judge in no way exhibited views that were unfavorable to either party, and had not expressed a personal attitude toward the case. Moreover, as noted by attorney Magdalena Majkowska of the Ordo Iuris Institute, who was present at the appeal hearing, “the defense had previously filed a motion to disqualify the judge; this motion was heard and the court found no grounds for disqualification.” Majkowska also stated that the views expressed by the Minister of Justice on a given topic do not mean that judges cannot rule in trials involving cases on which the Minister of Justice has spoken. Since such an argument was made by the defense due to Minister Ziobro’s statements on abortion, it could just as well be made in trials involving drunk drivers, for example. Such situations can even occur today, while Adam Bodnar is Minister of Justice – and disqualifying judges from such cases would lead to an absurd situation.

Abortion as a “low degree of social harm”

Justyna Wydrzyńska’s defenders additionally claimed that the court had improperly evaluated her testimony, such as by finding the activist’s stated motives unreliable. This is because she claimed that her actions had been the result of compassion for a woman who was seeking an abortion. In reality, however, Wydrzyńska had made no attempt to contact the woman personally, but only sent her abortion pills. Had she been genuinely concerned about the predicament of a woman who was supposedly a victim of domestic violence, she could have offered help of a different kind than that which she engages in on a daily basis as a pro-abortion activist.

Addressing this issue, Ordo Iuris’ lawyers argued that the defendant had been aware that her behavior was incompatible with the applicable laws and that her act – a crime against both life and health – was premeditated. This is evidenced not only by the attitude Justyna Wydrzyńska presented in public following each of the trials as well as in court, but also by her statements in the media. The defense attorneys’ allegation that the Regional Court had improperly assessed the degree of her act’s social harm is therefore unfounded. The defendant’s alleged or even genuine compassion cannot lead to the assumption that assisting in an abortion is socially harmful only to a negligible degree.

On the other hand, referring to the argument about the domestic violence that the pregnant woman had allegedly experienced at her husband’s hands, Adv. Magdalena Majkowska stressed that the presented evidence does not prove this. Rather, the case involves violence against unborn children. She also pointed out that although the accused’s defense team is claiming that the ADT activist only wanted to protect the mother from the potential consequences of an improperly-conducted abortion, she provided abortion pills not only without personal contact, but at an advanced stage in the pregnancy – so far advanced that it had led another abortion organization to deny abortion pills to the woman. Majkowska further pointed out that, contrary to the defense’s arguments, the case could not be described as involving an unwanted pregnancy. The mother who received abortion pills from Justyna Wydrzyńska had not intended to have an abortion until she found out that she was pregnant with twins. Then, a year after the abortion (which was eventually performed without the help of the pills that were sent by the ADT activist), she gave birth to another child by the same father.

Justyna Wydrzyńska’s defense: “a fetus is not a human being” and “handing out abortion pills is like offering a cup of soup”

At the hearing in the Court of Appeals, defense attorneys for the accused pointed out that the woman who decided to have an abortion had been very determined to do so, and that it would have occurred even if the activist had not sent her the pills. According to Wydrzyńska’s lawyers, the pregnancy threatened the woman’s health, and thus the abortion would have been permissible under the law on abortion. The fact that no hospital was willing to undertake this abortion was, according to the defense, merely proof that the law was not being respected at the time. They claim that the activist, on the other hand, acted with dolus eventualis (possible intent) and had not wanted the woman to have an abortion, and that her only concern was that the mother should have it as an option. One of the members of the defense team also argued that there is no ruling indicating that a fetus is covered by the constitution’s protection of life. “A fetus is a fetus, and a human being is a human being,” he said, justifying the position that the constitution only protects the right to life of a human being, but not that of a fetus. He added that the Constitutional Court’s October 2020 verdict was made with the participation of judges whose legitimacy is contested (following a dispute over the staffing of the Constitutional Tribunal dating back to 2015), and that the 1997 verdict was only supposed to refer to the previous constitution that had been inherited from the communist Polish People’s Republic.

The defense therefore requested that the verdict be set aside and the proceedings discontinued due to the act’s negligible social harm.

The defendant herself, for her part, stated that she feels no guilt. She argued that “helping another person should not be a crime, whether it is help in the form of offering a cup of warm soup, offering a jacket, or offering abortion pills. It is the moral duty of each of us.”

Her defense team overlooked in their argumentation the obvious fact that the Constitutional Tribunal’s decision of May 28, 1997 (ref. K 26/96), which did not allow the addition of a particular circumstance (i.e., a mother’s difficult life situation) to the prerequisites for legal abortion in Poland, clearly ruled that “the value of the constitutionally-protected legal good that is human life, including life developing in the prenatal stage, cannot be differentiated. This is because there are no sufficiently precise and justified criteria to make such a differentiation depending on the developmental stage of human life. Thus, from the moment of creation, human life becomes a constitutionally-protected value. This also applies to the prenatal phase.” Although this ruling, as the Constitutional Tribunal affirmed in its 2020 judgment, was made “after the current constitution had been enacted, but prior to its entry into force, certain ethical determinations that the Tribunal made at that time remain valid in light of the current state of the law.” The understanding of the democratic state of law clause, to which the 1997 ruling referred, as presented by the Constitutional Tribunal thus remains equally valid. One should not attribute to it merely a procedural meaning, but also derive from it certain implications of a material nature, including those relating to human dignity (which were not explicitly written down in constitutional acts at the time), as well as the right to life, including at the prenatal stage.

The Prosecutor’s Office adopts Minister Bodnar’s position; the Ordo Iuris Institute stands alone on the side of the law

The prosecution, which had not previously questioned the correctness of the staffing of the court of first instance and had not appealed the verdict, nevertheless joined the defense attorneys’ appeal at the hearing. This time it took the side of the accused, expressing the well-known view of the current Minister of Justice, Adam Bodnar, that Judge Agnieszka Brygidyr-Dorosz “had taken advantage of the unconstitutional procedure by which she was appointed to the office of judge, and thus obtained the position in a regional court, and later on in a court of appeals. What is more, she not only accepted the actions of the legislative and executive branches that were aimed at instrumentalizing the judiciary as well as the subordination of the judiciary to political interests, but also, by her conduct, affirmed her acceptance of such actions by the executive and legislative branches.” Unlike the defense, however, the prosecution did not request that the case be discontinued, but only that the case be remanded to the court of first instance for retrial.

The stance of the Prosecutor’s Office in the case of Justyna Wydrzyńska emphatically shows the consequences of the politicization of said office that has been carried out by the government of Donald Tusk and Justice Minister Adam Bodnar. For this reason, Magdalena Majkowska, an attorney who represents Ordo Iuris, was the only one in the courtroom to respond to the other side’s objections.

The court postponed the announcement of the verdict until February 13, 2025.