Abortion Rights and Poland’s Anti-Abortion Ruling

Abortion is an important element of women's rights because women are more affected by the abortion debate than men, both individually (if they are considering an abortion) and as a gender. Pregnancy has an enormous effect on the woman involved.

Recently, Poland had ruled to almost completely ban abortions.

The decision was met with women coming out with placards reading “My body’s not an incubator”, “This is war,” and Poles are beginning to take this protest further, beyond the anti-abortion law to vent their anger at their rulers. Marta Lempart, one of the demos’ leaders says, "Now it’s not about abortion alone, it’s about freedom in general and abortion has become a symbol of it.”

Many in Poland are referring to the swelling protests as the Women’s Revolution. Poland has not seen such a manifestation of nationwide solidarity in years. During Monday's protest, taxi drivers stopped their cabs and blocked road junctions, the so-called ‘ultras’ soccer fans who take pride in being macho stadium hooligans -- marched with the women. The town of Krakow was a scene of rare defiance- riot police, there to contain the demo, changed sides and took off their helmets, dropped their shields, and marched alongside the protesting women.

It is common knowledge in Poland that it’s not only the conservative, right-wing government that is behind the ban, but particularly bishops of the influential Catholic Church. On Sunday demonstrators took their anger to the churches across the country and disrupted services.

Angered women's rights activists and their supporters confront police and a far-right group on the fifth day of their nationwide protests a recent court ruling that tightened Poland's restrictive abortion law, in Warsaw, Poland, on Monday, Oct. 26, 2020. The court said it was unconstitutional to terminate a pregnancy due to fatal congenital defects, effectively banning almost all abortions.

Poland’s powerful ruling party leader urged his supporters Tuesday to defend the predominantly Catholic nation’s churches, potentially setting the stage for clashes with demonstrators angry at a court ruling that severely restricts abortions.

The call Tuesday by Jaroslaw Kaczynski, a conservative, drew strong condemnation from the main opposition head who accused him of deepening the nation’s divide, inciting hatred and civil war. Poland’s archbishop appealed for calm and respect for churches.

In a Facebook video message, Kaczynski insisted that the ruling was in line with the constitution and said the protests were marked by anti-church “nihilism.”

“We must defend Polish churches, we must defend them at every price,” Kaczynski said, in an appeal to members and supporters of his ruling Law and Justice party.

Opposition Civic Coalition leader Borys Budka reacted by saying that words calling for “hatred, inciting civil war and using party forces to attack citizens are a crime.”

He warned that the opposition could seek to bring Kaczynski before a special court for politicians.

In his message, Kaczynski also said the protesters were “committing a serious crime” by breaching the anti-COVID-19 nationwide ban on gatherings larger than five people.

“In the current situation these demonstrations will surely cost the lives of many people,” said Kaczynski whose right-wing party won power in 2015 on a platform that included a promise to tighten the abortion law.

Laws imposed to contain the spread of COVID-19 ban public gatherings of more than 10 people and provide authorities with a justifiable excuse to send in police to break up the swelling demos.

Several dozen people have been detained and fined, but at least for now, police actions have been restrained. Helmeted, shield-wielding riot police control the demos but seem to be there mostly to intimidate.

Up until last Thursday, Poland’s abortion law was a compromise that worked. Pro-abortionists saw it as too restrictive, pro-lifers considered it to be too liberal, but both accepted it ever since the law was passed in 1993.

Abortion was allowed only if the pregnancy was a result of a criminal act, when pregnancy posed a serious threat to a pregnant woman’s health or life, or when there was a high probability of a serious and irreversible fatal malformation or an incurable lethal disease.

Now the Polish Constitutional Court decided that terminating a pregnancy in case of serious fatal abnormalities was unconstitutional and violated an article that guarantees the right to life.

The Polish government seems shocked by the scale of the protests and is visibly at a loss of how to deal with the unrest. Poland’s rulers realize that these large-scale demos are not a one-off, localized protest- they encompass the entire country and are growing. The ban on abortion has become a unifying factor bringing together people who have otherwise been on opposite extremes of the political spectrum.

Every day more people are joining in, furious how the government is drifting away from European Union values, how it mishandled preparations for the second wave of COVID-19, angry at how the ruling party is unashamedly taking over the judiciary and at how it imposes its conservative values on schools. The ripple effect stretched out far beyond abortion- it even encouraged dissatisfied farmers to block streets with their tractors.

With protests getting out of control, the Polish government has a dilemma of whether to backtrack and lose the support of its hard-line, religious, electorate or to suppress the ongoing protests forcefully.

This court ruling removes the grounds upon which the vast majority of abortions take place in Poland. In 2017, Polish government data reported that 1,035 of the 1,057 abortions (97.9%) that took place were on the grounds of severe foetal anomaly. The proportion of abortions carried out on this ground has steadily increased every year since 1994: while abortions to preserve life or health accounted for 88.1% of all legal abortions in 1994, by 2017 they had fallen to 2.1%.

The women's liberation movement sees abortion rights as vital for gender equality.

They say that if a woman is not allowed to have an abortion she is not only forced to continue the pregnancy to birth but also expected by society to support and look after the resulting child for many years to come (unless she can get someone else to do so).

They argue that only if women have the right to choose whether to have children can they achieve equality with men: men don't get pregnant, and so aren't restricted in the same way.

Furthermore, they say, women's freedom and life choices are limited by bearing children, and the stereotypes, social customs, and oppressive duties that went with it.

They also regard the right to control one's own body as a key moral right, and one that women could only achieve if they had been entitled to abort an unwanted foetus.

With all these arguments taken consideration, let us understand the real case scenarios surrounding abortions, listed by Amnesty International.

People have abortions all the time, regardless of what the law says

Ending a pregnancy is a common decision that millions of people make - every year a quarter of pregnancies end in abortion.

And regardless of whether abortion is legal or not, people still require and regularly access abortion services. According to the Guttmacher Institute, a US-based reproductive health non-profit, the abortion rate is 37 per 1,000 people in countries that prohibit abortion altogether or allow it only in instances to save a woman’s life, and 34 per 1,000 people in countries that broadly allow for abortion, a difference that is not statistically significant.

When undertaken by a trained health-care provider in sanitary conditions, abortions are one of the safest medical procedures available, safer even than childbirth.

But when governments restrict access to abortions, people are compelled to resort to clandestine, unsafe abortions, particularly those who cannot afford to travel or seek private care. Which brings us to the next point.

Criminalising abortion does not stop abortions, it just makes abortion less safe!

Preventing women and girls from accessing an abortion does not mean they stop needing one. That’s why attempts to ban or restrict abortions do nothing to reduce the number of abortions, it only forces people to seek out unsafe abortions.

Unsafe abortions are defined by the World Health Organisation (WHO) as “a procedure for terminating an unintended pregnancy carried out either by persons lacking the necessary skills or in an environment that does not confirm to minimal medical standards or both.”

They estimate that 25 million unsafe abortions take place each year, the vast majority of them in developing countries.

In contrast to a legal abortion that is carried out by a trained medical provider, unsafe abortions can have fatal consequences. So much so that unsafe abortions are the third leading cause of maternal deaths worldwide and lead to an additional five million largely preventable disabilities, according to the WHO.

Almost every death and injury from unsafe abortion is preventable

Deaths and injuries from unsafe abortions are preventable. Yet such deaths are common in countries where access to safe abortion is limited or prohibited entirely, as the majority of women and girls who need an abortion because of an unwanted pregnancy are not able to legally access one.

In countries with such restrictions, the law typically allows for what is known as narrow exceptions to the legislation criminalising abortion. These exceptions might be when pregnancy results from rape or incest, in cases of severe and fatal foetal impairment, or when there is a risk to the life or health of the pregnant person. Only a small percentage of abortions are due to these reasons, meaning the majority of women and girls living under these laws might be forced to seek unsafe abortions and put their health and lives at risk.

Those who are already marginalised are disproportionately affected by such laws as they have no means to seek safe and legal services in another country or access private care. They include women and girls on low income, refugees and migrants, adolescents, lesbian, bisexual cisgender women and girls, transgender or gender non-conforming individuals, minority or Indigenous women.

The WHO has noted that one of the first steps toward avoiding maternal deaths and injuries is for states to ensure that people have access to sex education are able to use effective contraception, have safe and legal abortion, and are given timely care for complications.

Evidence shows that abortion rates are higher in countries where there is limited access to contraception. Abortion rates are lower where people, including adolescents, have information about and can access modern contraceptive methods and where comprehensive sexuality education is available and there is access to safe and legal abortion on broad grounds.

Many countries are starting to change their laws to allow for greater access to abortion

Over the last 25 years, more than 50 countries have changed their laws to allow for greater access to abortion, at times recognizing the vital role that access to safe abortion plays in protecting women’s lives and health. Ireland joined that list on 25 May 2018 when, in a long-awaited referendum, its people voted overwhelmingly to repeal the near-total constitutional ban on abortion.

Despite the trend towards reforming laws to prevent deaths and injuries, some countries, including Nicaragua and El Salvador, maintain draconian and discriminatory laws that still ban abortion in virtually all circumstances. In fact, according to the WHO, across the globe 40% of women of childbearing age live in countries with highly restrictive abortion laws, or where abortion is legal, is neither available or accessible. In these states, abortion is banned or only permitted in highly restricted circumstances, or if legal, is not accessible due to multiple barriers to access in practice.

Even in states with broader access to legal abortion, pregnant individuals can still face multiple restrictions on and barriers to access to services such as cost, biased counselling, mandatory waiting periods. The WHO has issued technical guidance for states on the need to identify and remove such barriers. 

Criminalising or restricting abortion prevents doctors from providing basic care

Criminalisation and restrictive laws on abortion prevent health-care providers from doing their job properly and from providing the best care options for their patients, in line with good medical practice and their professional ethical responsibilities.

Criminalisation of abortion results in a "chilling effect", whereby medical professionals may not understand the bounds of the law or may apply the restrictions in a narrower way than required by the law. This may be because of a number of reasons, including personal beliefs, stigma about abortion, negative stereotypes about women and girls, or the fear of criminal liability.

It also deters women and girls from seeking post-abortion care for complications due to unsafe abortion or other pregnancy-related complications. 

Claire Malone, a young woman from Ireland, who already had two children, shared her harrowing testimony with Amnesty International Ireland of how her right to health was undermined by not being able to access abortion due to the country’s strict abortion laws.

Claire has a number of complex and life-threatening health conditions, including pulmonary atresia and pulmonary hypertension, and had her lung removed in 2014. If women with pulmonary hypertension become pregnant, they are at high risk of becoming even more gravely ill or dying in pregnancy. Claire knows this, which is what led her to seek a termination, a request that was denied by her doctors because the law prevented them from doing so.

“My doctors said they couldn’t offer a termination as my life wasn’t at risk right now, and that was it. I know they are bound by the law. But I felt like if I waited until my health got so bad that I could die, then it would be too late by then anyway. And why is a risk to my health, as bad as it already was, not enough? How much do I have to go through before my doctors are allowed to treat me?”

It’s not just cisgender women and girls who need abortions

It is not only cisgender women and girls (women and girls who were assigned female at birth) who may need access to abortion services, but also intersex people, transgender men and boys, and people with other gender identities who have the reproductive capacity to become pregnant.

One of the foremost barriers to abortion access for these individuals and groups is lack of access to healthcare. Additionally, for those who do have access to healthcare, they may face stigma and biased views in the provision of healthcare, as well as presumptions that they do not need access to contraception and abortion-related information and services. In some contexts, 28% of transgender and gender non-conforming individuals report facing harassment in medical settings, and 19% report being refused medical care altogether due to their transgender status, with even higher numbers among communities of colour. This is due to many intertwining factors of poverty and race and related intersectional discrimination.

Sexual and reproductive rights advocates and LGBTI rights activists are campaigning for raising awareness on this and making abortion services available, accessible, and inclusive for everybody who needs it without discrimination on any grounds.

Criminalising abortion is a form of discrimination, which further fuels stigma

Firstly, the denial of medical services, including reproductive health services that only certain individuals need is a form of discrimination.

The committee for the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, or the Treaty for the Rights of Women), has consistently stated that restrictive abortion laws constitute discrimination against women. This applies to all women and people who can become pregnant, as the CEDAW Committee has confirmed that CEDAW’s protections, and states’ related obligations, apply to all women and therefore include discrimination against women who are lesbians, bisexual, and/or transgender, particularly given the specific forms of gendered discrimination they face.

Secondly, the stigma around abortion and gender stereotyping is closely linked to the criminalisation of abortion and other restrictive abortion laws and policies.

The mere perception that abortion is unlawful or immoral leads to the stigmatization of women and girls by health care staff, family members, and the judiciary, among others. Consequently, women and girls seeking abortion risk discrimination and harassment. Some women have reported being abused and shamed by health care providers when seeking abortion services or post-abortion care.

Access to safe abortion is a matter of human rights

Access to safe abortion services is a human right. Under international human rights law, everyone has a right to life, a right to health, and a right to be free from violence, discrimination, and torture or cruel, inhuman and degrading treatment.

Human rights law clearly spells out that decisions about your body are yours alone – this is what is known as bodily autonomy.

Forcing someone to carry on an unwanted pregnancy, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy.  

In many circumstances, those who have no choice but to resort to unsafe abortions also risk prosecution and punishment, including imprisonment, and can face cruel, inhuman, and degrading treatment and discrimination in, and exclusion from, vital post-abortion health care.

Access to abortion is therefore fundamentally linked to protecting and upholding the human rights of women, girls, and others who can become pregnant, and thus for achieving social and gender justice.

Abortion is a highly emotional subject and one that excites deeply held opinions. However, equitable access to safe abortion services is first and foremost a human right. Where abortion is safe and legal, no one is forced to have one. Where abortion is illegal and unsafe, women are forced to carry unwanted pregnancies to term or suffer serious health consequences and even death.

Women’s organizations across the world have fought for the right to access safe and legal abortion for decades, and increasingly international human rights law supports their claims. In fact, international human rights legal instruments and authoritative interpretations of those instruments compel the conclusion that women have a right to decide independently in all matters related to reproduction, including the issue of abortion.

For more detailed information on Abortion rights, refer:

http://reproductiverights.org/sites/default/files/documents/pub_bo_GG_abortion.pdf