Published: 12.09.2024
Donald Tusk’s government – which is made up of a coalition of parties that, during their eight years in opposition (2015–2023), were determined to defend the principles of democracy and the rule of law – has now decided to push through the most pro-abortion agenda in Europe in Poland, regardless of Polish laws and the Constitution. This is precisely because – thanks to our joint efforts together with other pro-life organizations – it lost the parliamentary battle in July to get pro-abortion legislation passed in the Polish Sejm. The actions of the Ordo Iuris legal think-tank in defense of the Constitution as well as the right to life are now essential. The lives of hundreds of thousands of children depend on our commitment and dedication today!
Prime Minister Donald Tusk has challenged the rule of law and the culture of life. Bypassing the Sejm, the Senate, and the President on Friday, August 30, he announced “guidelines” to turn Poland into the country with the most brutal abortion laws in Europe, in collaboration with the ministers of health and justice. Polish doctors in Polish hospitals are to kill babies even moments before they are born, and the basis for lethal injection or dismemberment is to be nothing more than a certificate from a psychiatrist.
The illegality of these “guidelines” is so obvious that although it was announced by the Prime Minister as well as two ministers, under its published text... there is no signature.
The lives of unborn children are under legal protection in Poland. This is stipulated not only by the 1993 law on family planning, protection of the human fetus and the conditions allowing for termination of pregnancy, but – above all – by the Constitution of the Republic of Poland and a number of indisputable rulings by the Constitutional Tribunal.
After a thorough analysis of these “guidelines,” we have decided to prepare an application addressed to the Constitutional Tribunal. We want the Constitutional Tribunal to rule that the issuance of these guidelines is unconstitutional. At the same time, we will submit to MPs as well as the President a ready-made motion to bring Prime Minister Donald Tusk, Justice Minister Adam Bodnar, and Health Minister Izabela Leszczyna before the State Tribunal for perpetrating a crime by issuing a normative act introducing “abortion by certificate” in complete disregard for constitutional legislative procedures. Against these same politicians we are directing a notice of suspicion of the crime of abuse of office, and expect a full criminal investigation to be carried out.
We know that any power which ignores democratic principles is also ready to stifle all regulations and criminal procedures in order to protect its ministers and prime minister. However, we also assume that someday the time will come for these proceedings, which will most probably have been discontinued for purely political reasons, to be reopened and fairly conducted, and that those who are guilty of violating the Constitution and killing children will be punished.
An in-depth analysis of these “guidelines” will soon be sent to doctors and hospitals. In it, we will explain to doctors, as well as the directors of hospitals, that these guidelines contradict the legal regulations which apply to doctors, and simply must not be put into practice. Acting on the basis of unlawful guidelines is breaking the law, for which doctors – not members of the government – will be held responsible. At the same time, we offer training and free legal assistance to all doctors, because both the Polish Constitution and international law that is binding upon Poland unequivocally affirm that no one has the right to force a doctor or a hospital to kill unborn children.
See also: How doctors in Poland should affirm the right to life
What exactly happened?
Let’s start with the great success of the defenders of life. After our great “Call your MP” campaign, after a strong letter from the Polish Episcopate which was read on the day of the March for Life and Family in Warsaw, and after widespread outcry from Poles themselves, on July 12 the Sejm rejected a pro-abortion bill that would have “depenalized” abortion – i.e., abolished the penalties for having an abortion in Poland. This was a defeat for the radical Left as well as the Prime Minister personally.
In August, Donald Tusk stated at the infamous Campus Poland of the Future that “there will be no majority to support the legalization of abortion in this parliamentary term.” However, this did not mean that Tusk had recognized the will of Parliament. On the contrary: he decided, in blatant violation of the rule of law and the Constitution, to make a mockery of parliamentary democracy and establish an abortion regime by means of a decision by the government itself.
On August 30, the Prime Minister – along with Justice Minister Adam Bodnar and Health Minister Izabela Leszczyna – announced “guidelines” for hospitals which state that doctors must perform abortions on women who come to a hospital requesting it, even if they only have a psychiatrist’s certificate claiming that there is any sort of threat to their general mental health. This interpretation of the requirement of a “threat to the life or health” of the mother in order to undergo the procedure means unrestricted access to abortion in Poland. Remember that in the United Kingdom more than 200,000 unborn children are killed every year, of which up to 98% (!) are abortions carried out simply due to a claim of a threat to the mother’s mental health.
The radicalism of this solution outraged even Left-wing columnists. Some pointed out that such certificates could just as easily be issued by diabetologists (in cases of gestational diabetes) and dermatologists (in cases of a risk of stretch marks), while others were outraged at the sheer unconstitutionality of such a major change in the law.
Donald Tusk knows that if doctors follow these guidelines, it will mean de facto “abortion on demand” in Poland – available up to the very end of a pregnancy. It will be possible to kill the child even a day before delivery, without any attempt to treat the mother at all!
They want to force doctors to kill babies!
While this is going on, the government is also trying to intimidate doctors. The Minister of Health has threatened that all it would take is for any doctor to ask for verification of another doctor’s "abortion certificate" by a second specialist, and the hospital could be severely punished. To make the threat palpable, earlier the National Health Fund imposed a fine of as high as PLN 550,000 on the Pabianice Medical Center, whose doctors refused to perform an abortion in the absence of a proper medical certificate. In turn, Justice Minister Adam Bodnar has prepared guidelines for prosecutors which offer suggestions on how they should handle abortion cases.
Imagine that Donald Tusk was so frank at the press conference that he even declared that the prosecution would not side with “what is in our opinion bad and very restrictive provisions.” Once again, it therefore appears that what applies, according to the Prime Minister, is “the law as we understand it”, as he famously said in December last year.
The announced guidelines are intended to persuade hospitals and doctors to adhere to an interpretation of the law that is not supported by either current regulations or the jurisprudence of the Constitutional Tribunal, or even the resolutions of the Parliamentary Assembly of the Council of Europe. These guidelines are not at all consistent with the catalog of constitutional sources of generally applicable law (primarily laws and regulations). They also fail to meet the criteria for acts of internal law, since there is no statutory basis for their issuance, nor are they addressed to entities that are statutorily subordinate to the Prime Minister or a minister. Issuing them therefore constitutes an abuse of power that, by violating the legal and constitutional order and infringing upon doctors’ consciences, harms both public and private interests.
We hope that the unconstitutionality of these “guidelines” will be confirmed by the Constitutional Tribunal. We will forward the application we are preparing for them to all entities that are authorized to initiate proceedings leading to the declaring of these “guidelines” as unconstitutional. We are particularly counting on the President of the Republic of Poland, the First President of the Supreme Court, as well as members of the Sejm to be ready to defend the Constitution as well as life itself. We have further launched an online petition addressed to the President of the Republic of Poland, Andrzej Duda, in which we urge the head of state to use his powers to submit the aforementioned motion.
I believe that sooner or later a fair criminal investigation will likewise be conducted, in which our notice of suspicion that the Prime Minister and two ministers have committed a crime under Article 231 of the Criminal Code (concerning the abuse of power) will be recognized, or else that all three will be successfully held constitutionally accountable before the State Tribunal.
An abortion clinic in Warsaw funded with public money?
Unlawful “guidelines” are not enough, however. Abortion Dream Team activists who are involved in the illegal distribution of abortion pills (for which one of them has so far been invalidly convicted) have announced that they will soon open the first abortion clinic in Poland. One of them said in an interview with the media that, under the Law and Justice government, “we would probably [have been] put in jail immediately,” but that today "there is less concern." In doing so, they intend to... ask the Warsaw authorities to give them access to properties belonging to the city.
Article 152 of the Polish Penal Code explicitly states that illegal abortion, as well as aiding and abetting abortion, is punishable by up to three years in prison. What, then, would this “aiding and abetting abortion” be, if not what the activists of the Abortion Dream Team – who openly say that “women will be able to count on a pharmacological termination of a pregnancy without giving a reason” – intend to do? We, as the Ordo Iuris Institute, will do everything in our power to prevent the establishment and operation of this “clinic.”
For the time being, we have prepared a petition addressed to the Mayor of Warsaw, Rafał Trzaskowski, calling on him to reject the abortionists’ request for access to city property. The text of the petition reminds us that the illegality of the activities carried out by the Abortion Dream Team (ADT) has already been confirmed by the Warsaw-Praga District Court, which last year convicted one of ADT’s leaders on charges of aiding and abetting abortion. The Mayor of Warsaw must keep in mind that those activists who are calling upon him want to carry out activities on city land for which they have already been convicted!
I have no doubt that these are not the only challenges we are going to face in the coming weeks. Following the announcement of these guidelines, four Internet domains containing the keyword "aborcjomat," from the Polish words for “abortion” (aborcja) and “ATM” (bankomat) have already been purchased. Soon we will probably learn of the creation of a portal where it will be possible to order a medical certificate for an abortion without even leaving one’s home...
We are thus facing a key moment in the fight for life and the future of our Fatherland: the question of whether Poland will continue to protect the lives of its youngest and most defenseless citizens, or rather join the ranks of those countries that are murdering their own children en masse...
Jerzy Kwaśniewski, attorney at law, President of the Ordo Iuris Institute for Legal Culture
See also Tomasz Rowiński’s series on abortion:
On February 13, the Court of Appeals in Warsaw overturned an earlier verdict convicting Justyna Wydrzyńska, a well-known abortion activist from the so-called Abortion Dream Team, of assisting in a medical abortion.
In March 2023, the Warsaw-Praga Regional Court had sentenced this activist to community service for giving abortion pills to a woman who was pregnant with twins. It was a high-profile case that was reported in the international media.
17.02.2025
• The ordeal of the Polish Klaman family, whose three children were taken away by Swedish officials with the permission of a Polish court on July 4, 2024, has been ongoing for seven months.
11.02.2025
• The UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity has published a statement summarizing his country visit to Poland.
• The purpose of the visit, undertaken at the invitation of the Polish government, was to identify the gaps in the protection against discrimination and suggest best practices for the government to eliminate all cases of violence and discrimination based on sexual orientation and gender identity.
• 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.
© 2016 ORDO IURIS - Instytut Na Rzecz Kultury Prawnej
