Polish Court of Appeals overturns an abortion activist’s conviction; judge calls abetting of illegal abortion “citizen self-help”

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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.

The Court of Appeals’ decision means that the case will be remanded to the Warsaw-Praga Regional Court. The reason why the verdict was overturned was not because it was substantively flawed (in other words, that Justyna Wydrzyńska’s act was not a crime), but because the Court of Appeals found that the regional court had been improperly comprised under Article 439 § 1 Item 2 of the Polish Code of Criminal Procedure.

On the other hand, in a very unusual move, one of the judges on the panel called for the court to review the case in order to consider its sociopolitical context as well as the fact that pregnant women need help – which, however, “does not always have to mean having an abortion.”

Such a statement from an appeal court judge is all the more stunning in Poland that abortion on demand has remained banned in that country since a 1993 law that put an end to the earlier very liberal abortion law put in place by the communist regime.

The judge’s statement made on February 13 implies that abortion assistance, while remaining a crime under Polish law, is a form of “citizen self-help” which “becomes active where, despite its clear duty, the state does not act.”

Most significantly, however, according to the Court of Appeals, Judge Agnieszka Brygidyr-Dorosz, who issued the regional court’s judgment, was appointed to her office at the request of the National Council of the Judiciary (KRS) that had been formed under the provisions of the 2017 law – in other words, after the KRS’ reform by the United Right government (which was in office from 2015 to 2023).

This reform, although having be duly enacted by Parliament at the time and later validated by the country’s Constitutional Tribunal, has always been considered by the parties of the Left-liberal coalition which is currently ruling the country under Prime Minister Donald Tusk to be contrary to the Polish Constitution and to the general European understanding of the rule of law (as mentioned in Article 2 of the Treaty on the European Union).

Accordingly, ignoring the jurisprudence of Poland’s Constitutional Tribunal, the Court of Appeals ruled on February 13 that there had been a violation of the standards of independence and impartiality under Article 45 (1) of the Polish Constitution. The Court of Appeals’ verdict is thus another instance of the ongoing political and legal dispute over the changes in the judiciary that were made by the Law and Justice (PiS) government in Poland.

It is also worth recalling that there was an illegal replacement of the president and vice-presidents of the Court of Appeals in Warsaw a year ago, following a decision by Minister of Justice Adam Bodnar. The president and vice-president of the Court of Appeals in Warsaw were forced out of their offices and replaced despite the negative opinion of the college of judges of the Court of Appeals regarding Bodnar’s decision to dismiss that court’s authorities. At the time, Bodnar did not obtain approval from the National Council of the Judiciary for this move, as is required under Polish law in such a situation.

To be precise, on February 13, when delivering the court’s verdict in Justyna Wydrzyńska’s case, the panel’s chairman, Judge Rafał Kaniok, who read out the court’s opinion, did insist that “the greater part of the panel does not share the position, which is sometimes expressed in case law, that the mere fact that a judge was appointed under a flawed procedure by the KRS, which was formed after 2017, and sits on the bench of a common court therefore results in an absolute cause for appeal due to the court’s improper composition.” He said that this is to be determined by a number of circumstances, including those relating to Judge Brigidyr-Dorosz’s career trajectory. In this case, according to the Court of Appeals, the minimum standard guaranteeing the parties’ right to an impartial and independent court was not met, however. But this is due to the views on abortion held by former Minister of Justice Zbigniew Ziobro, who could have influenced on Judge Brigidir-Dororsz’s further career, as well as the media-influenced nature of this case.

Interestingly, it should be noted that Judge Rafał Kaniok had participated in the promotion of Judge Agnieszka Brygidyr-Dorosz back in 2018 and during this process, he had made a positive assessment of her qualifications.

On February 2023, Judge Rafał Kaniok also clarified that the ruling works neither in favor of nor against the defendant. Nor did the ruling address the merits of the appeal’s allegations, other than the one challenging Judge Brigidyr-Dorosz’s status. The Court of Appeals explicitly refused to assess whether Justyna Wydrzyńska’s act entailed a negligible degree of social harm, which would have required a discontinuation of the proceedings. This issue should be decided once again by a first-instance court.

However, it should also be noted that this will now happen after last year’s replacement by the pro-abortion Tusk government of the presidents and vice-presidents of the lower instance courts in Warsaw, as well as throughout the country, in many cases in violation of the legal procedure for doing so, as in the case of the Warsaw appeal court.

Furthermore, in a very unusual move, on February 13 Judge Ewa Furtak-Leszczyńska spoke after Judge Kaniok. It is difficult to say whether she was speaking on her own behalf or on behalf of the entire panel of three judges. She added to Judge Kaniok’s circumspect and strictly legalistic argument with – as she put it – directions to guide the lower court that will hear the case again.

This court, “insofar as it establishes the formal elements of the offense under Article 152 § 2 of the Criminal Code,” according to Judge Furtak-Leszczyńska, will have to assess the defendant’s criminality “in terms of its sociopolitical context” as well.

Although the judge stipulated that she was not evaluating “in any way the validity of the abortion law,” she said that the evaluation of the act (i.e., assisting an abortion) “cannot be overlooked in the context of providing the pregnant woman with support and a sense of security that is not provided by a public authority, including within the framework of access to health services and an appropriate response to any pregnancy-related risks, including in the area of the pregnant woman’s mental health.” This support, according to Judge Furtak-Leszczyńska, “does not always have to mean having an abortion.” In this regard, she called for “bearing in mind that citizen self-help proliferates where, despite its clear duty, the state, as the public authority responsible for the protected sector in question, does not act.” 

Only from the written opinions will it be possible to ascertain whether all three judges on the panel who ruled in Justyna Wydrzyńska’s case consider aiding and abetting abortion to be a form of “citizen self-help.”

What is particularly disturbing is the clear emphasis that the Court of Appeals placed on the idea that the degree of social harm which Justyna Wydrzyńska’s act inflicted should be reassessed. This could lead to an outcome in which this assessment will not be made by the court, but by the Prosecutor’s Office, which is led by Adam Bodnar.

That office can indeed – after the case is remanded to the first-instance court – withdraw the indictment, citing precisely this act’s allegedly negligible social harm.

Since Adam Bodnar took over as Public Prosecutor General and replaced the National Prosecutor in January 2024 without the presidential approval required by Polish law, prosecutors have withdrawn indictments after years-long trials on multiple occasions. Such a move is also likely in the Wydrzyńska case, as 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.

As we then wrote, 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 and to demand that the law be applied to abortion activist Justyna Wydrzyńska.

Majkowska then pointed out that, contrary to the defense’s arguments, the case could not be described as involving an unwanted pregnancy (as the extraordinary comment made on February 13 by Furtak-Leszczyńska would also have it). Indeed, the facts are that 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.

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

Read also our report:
A year of devastation of the rule of law in Poland

Watch:
Democracy in Poland – A discussion on the state of democracy and the rule of law in Poland organized by the Hudson Institute