Polish Ombudsman: ‘Rule of law has not applied to abortion in Poland’

Polish Ombudsman Adam Bodnar speaks during the parliamentary debate in Warsaw, Poland, 20 December 2019. [EPA-EFE/WOJCIECH OLKUSNIK]

A referendum on abortion under the current conditions in which the ruling party has unlimited possibilities for propaganda and debate in the public media, would not give room for real and in-depth discussion, Adam Bodnar, told EURACTIV Poland in an interview.

Adam Bodnar is a Polish lawyer, educator, and human rights activist, who has been Polish Ombudsman for Citizen Rights since 2015.

Since 1993, Poland had one of the strictest abortion laws in Europe. Now the Constitutional Tribunal ruled that abortion in case of a high probability of a serious and irreversible impairment of the foetus or an incurable disease threatening its life is unconstitutional. Do you think the judgment is constitutional? 

The rule of law has not applied in the context of abortion in Poland. So far it has been legally available in three types of cases: Firstly, when there is a serious threat to the life or health of the pregnant woman, secondly in the case of rape or incest, and thirdly if the foetus was seriously and irreversibly damaged. Still, many women haven’t had access to abortion.

That’s why there have been only between a few hundred and 1,100 procedures performed per year, which is a comparably small number on the scale of the 38-million country. The problem with access to abortion has already appeared many times in the jurisprudence of the European Court of Human Rights. Cases such as Alicja Tysiąc, R.R., P. and S. versus Poland indicated that we have a problem with complying with this law.

The numbers that you mention are only official statistics. In reality, there are many more abortions…

Yes, these are only official numbers. Two social processes have been taking place simultaneously: on the one hand, the abortion underground in Poland, as well as the so-called abortion tourism, with Polish women having abortions mainly in Germany or Slovakia.

At the same time, some provinces, due to the widespread use of the conscience clause were completely excluded from any legal abortion possibility. Here I have in mind especially the Podkarpackie Voivodeship.

It is not only a legal problem but also a social problem – it shows social stratification. More affluent women from bigger cities could have easier access to abortion because of abortion tourism. While many women from small towns were de facto completely deprived of any access to abortion.

Do these women really want help?

I don’t know if they want our help, but I think that the law should take into account different human situations so that it could be fairly executed.

However, the decision of the Constitutional Tribunal blocks even what was available so far, even if only to a minimal extent. What’s more, this judgment was passed in very special circumstances, when state borders are being restored, so their crossing is connected with a quarantine or other movement restrictions.

This makes so-called abortion tourism even more difficult now. Hence the dynamics of ongoing protests.

Would you consider that this judgment consolidates existing inequalities?

It not only consolidates inequalities, but also deepens them. The question also arises to what extent this judgment should be taken seriously. Such decisions should be entrusted to the parliament not to the Constitutional Court.

But above all, solutions which were taken in Ireland are worth considering. I have dealt with the topic of the so-called Citizens’ Assembly, which operated in Ireland in 2016-2017. I think it was an interesting way to look for a solution, but most of all to understand the multi-faceted problem of the availability of legal abortion by the whole society.

Both proponents and opponents of abortion are talking about a referendum on the matter. Do you think that abortion is an issue that should be put to a referendum?

Currently, both sides of the political dispute are looking for any way out of this difficult situation. Politicians have it in common that they would be very willing to solve a difficult social problem by just offering a simple slogan that can be contained in one sentence.

A Sunday meeting of the Social Council that took place at the office of the Ombudsman decided that abortions are not a matter for a referendum, which could lead to much greater social divisions, because the whole referendum campaign would be based on divisions in society.

Moreover, a referendum in the current conditions in which the ruling party has unlimited possibilities for propaganda and shaping debate in the public media would not provide space for such a real in-depth discussion – I have to agree on that with Marta Lempart (Polish women’s right activist).

Speaking about the Civic Panel, I was speaking in the context of such a situation, in which we have a chance for a real debate based on trust and mutual hearing, rather than when such deep polarisation occurs on the political scene.

Poland is one of over 30 signatories of the Geneva Consensus Declaration, which underlines the fundamental importance of the family and the protection of a child before and after birth. Do you think that what is happening in Poland is part of a larger international movement?

Absolutely yes. For several years now, we have been experiencing pressure to emphasize Christian values, loyalty to the family, fidelity to the homeland, and combining the idea of protecting the traditional family with the concept of the nation.

I think that the ruling party in Poland is repeating a certain pattern that we can see in the movements of the so-called Alt-Right in the USA, of what Viktor Orban does in Hungary or President Jair Bolsonaro in Brazil.

Please note that two years ago we discussed the alleged LGBT ideology that threatens the Polish family. Now the parliamentarians of the ruling party have realised that talking about the LGBT ideology does not bring them, supporters, so they have returned to talking about the gender ideology.

The discussions that have been going on in Poland so far concern the issue of sex education in schools and its scope, the Istanbul Convention on preventing and combating violence against women and domestic violence, in vitro fertilisation and the situation of LGBT+ people, and especially the issue of partnerships and same-sex marriages. The topic of abortion is also included.

Could the current trend result in an absolute ban on abortion in Poland?

I think that many supporters of this movement would like a complete ban on abortion in Poland. This is part of a larger international trend. The Constitutional Court was probably also influenced by such pressure. What is happening on the streets, however, shows that the moods among Poles are completely different and perhaps it is a breakthrough moment for a real discussion on reproductive rights.

I also draw attention to one completely unnoticed aspect. Our debate on bioethical issues is surrounded by such an ideological nebula that to this day we do not have a law on genetic tests, we do not have proper regulation of issues related to in vitro fertilisation and so-called pro futuro statement – a statement for future treatments, which will concern us in case of unconsciousness.

So, every bioethical issue dies under the pressure that in a moment we will have to touch these sensitive aspects related to the beginning or end of human life. I think that the influence of this trend, which you are talking about, has a very concrete impact on solving bioethical disputes in Poland.

Do you think that the protests that take place on Polish streets will influence the authorities? How could the government carry out possible changes according to the protesters’ demands?

I do not know the answer to the second question, because I think that if the authorities consider the judgments of the Constitutional Tribunal to be binding, they now have another problem. What to do with the judgment and how to respond to the protests. This is a problem on the part of those in power, not those who would advise them how to get out of this impasse. However, these are the biggest protests in Poland since the 2017 protests on the independence of the judiciary.

However, there are some differences. First of all, they have spilled now over into the whole of Poland, secondly, they concern mainly young people who are involved in these protests. As I see such places as Lębork, Łuków or towns in Podkarpacie Voivodeship, which are protesting powerfully, I think it is not enough to find some quick solution to relieve the temporary tensions. I think that we are talking about a much more serious social protest, which will require a redefinition of Polish policy on issues related to reproductive rights and sexual education

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