Constitutional Tribunal: abortion due to foetal defects is unconstitutional

After the ruling goes into effect, abortion will be only be permissible in Poland in the case of rape, incest or a threat to the mother's health and life, which make up only around 2% of legal terminations conducted in recent years.

"(A provision which) legalises eugenic practices in the field of the right to life of an unborn child and makes the right to life of an unborn child dependent on his or her health, which constitutes direct discrimination... is inconsistent... with the constitution," said Julia Przyłębska, Head of the Constitutional Tribunal.

Conservative values have played a growing role in public life in Poland since the nationalist Law and Justice (PiS) came into power five years ago on a promise to defend what it sees as the nation's traditional, Catholic character.

Curbing access to abortion has been a long-standing ambition of the party, but it has stepped back from previous legislative proposals amid widespread public backlash.

A request to examine the constitutionality of the premise was filed in 2019 by 119 MPs from PiS, PSL-Kukiz'15 and Confederation.

Bartłomiej Wróblewski, a PiS MP, told the court that abortion due to foetal defects was akin to eugenics. "Euthanasia killing cannot be justified with the argument that the incurably ill person will be living in discomfort " he said.

Maria Kurowska, an MP with United Poland, a party in the ruling coalition with Law and Justice said: "We are glad with what the Constitutional Tribunal ruled because one can not kill a child for being sick. This is not a foetus, it is a child."

"Today Poland is an example for Europe, it's an example for the world," said Kaja Godek, a member of the "Stop Abortion" public initiative, a separate group.

Women's rights and opposition groups reacted with dismay.

"The worst-case scenario that could have come true has come true. It is a devastating sentence that will destroy the lives of many women and many families," said lawyer Kamila Ferenc who works with an NGO helping women denied abortion. "It will especially force the poor to give birth to children against their will. Either they have no chance of surviving, or they have no chance of an independent existence, or they will die shortly after giving birth" - Ferenc added.

Council of Europe Commissioner for Human Rights, Dunja Mijatovic called it a "sad day for women's rights".

"Removing the basis for almost all legal abortions in Poland amounts to a ban and violates human rights. Today's ruling of the Constitutional Court means underground/abroad abortions for those who can afford and even greater ordeal for all others" - she wrote on Twitter.

Critics say the Constitutional Tribunal may have acted on the party's behalf. While the Tribunal is nominally independent, most of its judges have been appointed by PiS, leading it to be dubbed a "pseudo-tribunal" by some.

"To throw in the subject of abortion and produce a ruling by a pseudo-tribunal in the middle of a raging pandemic is more than cynicism. It is political wickedness," said Donald Tusk, the President of the European People's Party and a former prime minister of Poland.

Poland's opposition said the tribunal was carrying out the political will of the ruling party leader, specifically.

PiS denies trying to influence Tribunal rulings, although its shakeup of Poland's judiciary has prompted charges at home and abroad that it is subverting democratic norms. PiS says its reforms only aim to make the judiciary more efficient and fair.

Abortion rights activists say access to procedure has declined in recent years in Poland even in cases when it would be legal.

Many doctors in Poland, which has some of the strictest abortion rules in Europe, already exercise their legal right to refuse to terminate pregnancies on religious grounds. Some say they are pressured into doing so by their superiors.

According to the Health Ministry data, 1,110 legal pregnancy terminations were performed in Poland in 2019. As much as 1,074 were done due to irreversible defects or incurable diseases of foetuses.