Pro-abortion newspaper in Defense of Polish Health Minister’s Guidelines That Suggest the Legality of Killing Babies in the 9th Month of Pregnancy

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• Gazeta Wyborcza published an article titled "Ordo Iuris Wants the Constitutional Court to Delete the Premise of Endangering a Woman’s Health. Prof. Zoll: This Is Not a Matter for the Constitutional Court."

• The text suggests that the Court has no authority to examine the constitutionality of the Health Minister’s abortion guidelines.

• In fact, the guidelines seeks to create new norms of behavior as if it were a legal act, and they can therefore be reviewed for their compliance with the Polish Constitution.

• The authors of the piece also came to the defense of Dr. Gizela Jagielska – a doctor from Oleśnica who killed a viable child outside the mother’s body in the 9th month of pregnancy with an injection into the heart.

• GW journalists cite some of the assumptions of the guidelines, the implementation of which led to the tragedy.

The article "Ordo Iuris Wants the Constitutional Court to Delete the Premise of Endangering a Woman’s Health. Prof. Zoll: This Is Not a Matter for the Constitutional Court," published on April 23 in Gazeta Wyborcza, concerns the guidelines for hospitals issued last year by Health Minister Izabela Leszczyna. The authors of the publication (Paulina Wodzyńska, Łukasz Woźnicki) claim, citing Prof. Andrzej Zoll, that the Constitutional Court cannot rule on the constitutionality of “interpretations of the law.”

The article, however, is misleading. The Health Minister’s guidelines are nothing more than a "gateway" for abortion on demand, as stated by Prime Minister Donald Tusk himself, quoted by GW – for the guidelines are supposed to be a response to the democratic defeat of laws depenalizing abortion, which took place during the parliamentary vote on July 12, 2024. In other words – it was not possible to introduce such legislation in the Sejm, so it was done through a document of the Health Minister that mimics such legislation.

This is, in fact, the essence of these guidelines – they do not explicitly create new law, but present such an interpretation of existing laws that the scope of their application is broadened, and thus contradict the principles established in case law regarding limitations on the right to life. In this way, they extra-legally create new norms of behavior, in the form of a normative act. Such an act, in turn, is subject to a review of its compliance with the Polish Constitution in effect since 1997.

Health Minister’s Guidelines Expect Conduct Contrary to Law

It is worth recalling that Minister Leszczyna is attempting in these guidelines to modify not only the existing provisions of the Law on Family Planning, Protection of the Human Fetus, and Conditions for Permissibility of Abortion—which are limited by the overriding (and constitutional) principle of legal protection of human life—but also the Law of December 5, 1996, on the Profession of Physician and Dentist.

The excerpt quoted by GW from the Health Minister’s statement, that "there is no need to convene consiliums, which are an obstruction of a ‘guaranteed benefit in the basket of benefits.’ A woman with such a certificate [from a psychiatrist – KG] must have the procedure performed," is entirely false. Article 37 of the law on the Profession of Physician and Dentist clearly stipulates that in the case of diagnostic or therapeutic doubts, the doctor, based on his own medical knowledge, should consult a competent specialist or organize a medical consilium. Should means is obliged to. Thus, the law imposes an obligation to consult, which the Minister of Health presents as a mere option—and even suggests that doctors should not use it at all in the case of abortions.

Furthermore, doctors are to be dissuaded from consulting, in particular by the financial sanctions imposed on hospitals that refuse to perform abortions (regardless of the reasons), according to the version of the regulation of September 8, 2015, on the general terms and conditions of contracts for the provision of health care services, as amended by the same minister. With these guidelines, the Health Minister is therefore creating new rules of conduct unknown to current law. These are precisely the rules that can and should be subject to review by the Constitutional Court. Hence, the Ordo Iuris Institute’s appeal for the harmful guidelines to be scrutinized is fully justified.

Termination of Pregnancy Is Combined with the Duty to Save the Child

The authors of the Gazeta Wyborcza article failed to note that the Law on Family Planning is not the only piece of legislation whose provisions define the limits of abortion permissibility and—more importantly in the case of the incident in Oleśnica—the form in which the abortion is performed.

GW journalists falsely suggest that "in situations of danger to the health or life of the mother, the current law does not specify the age of pregnancy up to which an abortion can be performed." This is incorrect, as the regulations do not speak of abortion (understood as the intentional killing of a child) at all, but of termination of pregnancy, without specifying the obligations of doctors regarding a child who, as a result of the procedure, is separated from the mother’s body.

At this point, the provisions defining the rules of the medical profession—the law on the Profession of Physician and Dentist, the Code of Medical Ethics, and the medical standards for doctors of particular specialties—come into effect. In none of these documents will one find permission for the act committed by the deputy director of the hospital in Oleśnica, as doctors from the Polish Society of Gynecologists and Obstetricians reminded the Health Minister in a letter. Criminal law specialists also emphasize that from the 24th week of pregnancy, doctors are bound by the principle of "life first."

And the fact that Felek, who was killed in the 9th month of pregnancy at the Oleśnica hospital, was diagnosed with one disease or another should not matter. Leaving aside the fact that there was no unanimity among doctors about the baby’s condition, as of 2020, abortion on these grounds is illegal, and therefore falls under Article 152 § 1 of the Criminal Code ("CC"), which provides for punishment by imprisonment for anyone who, with the woman’s consent, terminates a pregnancy in violation of the law.

The fact that the authors of the Gazeta Wyborcza article mention the child’s health condition only confirms that the deprivation of life was eugenic in nature and a crime. For clarity, it is worth adding that criminal qualification of such an act is influenced by factors such as the age of the child—that is, the child’s ability to live outside the mother’s body (Article 152 § 3 of the CC – "whoever commits the act specified in § 1 or 2 when the conceived child has reached the capacity to live independently outside the organism of the pregnant woman, shall be subject to imprisonment for a term of 6 months to 8 years")—and the fact that in this case there were medical prerequisites for a cesarean section, making it, according to the Supreme Court (decision of October 30, 2008, ref. I KZP 13/08), such that the unborn child was entitled to the full protection of life under Article 148 § 1 of the Criminal Code – "whoever kills a human being shall be punished with imprisonment for a term of not less than 10 years or with life imprisonment."

Minister of Health Is Not a Doctor

Finally, it is necessary to respond to the significantly misguided remark by Gazeta Wyborcza journalists—who have no medical training—expressing outrage that lawyers from the Ordo Iuris Institute are not doctors and are speaking out on the issue of mental health risks.

The Ordo Iuris lawyers are commenting not on medical diagnoses, but on the current law and attempts to circumvent it to enable abortion on demand in Poland, which is the de facto result of the guidelines issued by the Health Minister.

And since the topic has been raised, it is important to remember that Health Minister Izabela Leszczyna is not a doctor either.

Attorney Katarzyna Gęsiak, Director of the Ordo Iuris Center for Medical Law and Bioethics