Polish Court Restricts Abortion Rights

Major provisions of Poland’s deeply divisive abortion rights law were struck down Wednesday as unconstitutional in a far-reaching decision that abortion violates the country’s nascent democratic legal order.

The ruling by the Polish Constitutional Tribunal virtually assures that abortion, with few exceptions, will once again become illegal in Poland, reopening one of the country’s most painful social wounds just five months after the liberalized law took effect.

“The first article of our constitution names Poland as a democratic state based on the rule of law,” said tribunal President Andrzej Zoll in announcing the ruling. “The highest value in a democracy is human life, which must be protected from its beginning to the end.”

Stunned abortion rights supporters, including the chief of staff to President Aleksander Kwasniewski, said the unexpected decision moves the predominantly Roman Catholic country precariously close to being a “clerical state.” Leading members of the Democratic Left Alliance, the dominant partner in the ruling coalition of former Communists, called for a national referendum to finally settle the matter.

“It is very depressing that several years of fighting for change have been lost because these 12 judges think they know what is best for a woman’s life,” said Wanda Nowicka, director of the Federation for Women and Family Planning in Warsaw. “I am afraid we have become one of the very few examples in the world of a country moving backwards regarding women’s reproductive rights.”

The lone woman on the tribunal voted with the majority.

Jubilant anti-abortion advocates welcomed the decision and rejoiced that it came on the eve of Pope John Paul II’s arrival in Poland this weekend for an 11-day pilgrimage. The pope had expressed sadness that his homeland, in easing 3-year-old abortion restrictions, had returned to standards under communism, when abortion was freely available.

“This moment for us is a moral symbol, a sign that certain things are worth fighting for,” said Polish Sen. Marcin Tryzna, a Solidarity trade union representative and among 37 legislators who petitioned the tribunal to overturn the law. “It is not enough to say you believe in God; you have to live accordingly.”

Roman Catholic Church officials, who say abortion will be an important theme during the papal pilgrimage, reacted with joy and relief but lashed out at suggestions of a referendum. Opinion polls show Poles are about evenly divided on most abortion issues, but the church has strongly resisted efforts to put any abortion rights question to a popular vote.

“I state clearly: Moral values are not subject to a referendum,” Bishop Tadeusz Pieronek, general secretary of the Polish episcopate, said on Polish TV. “It is not we who decide whether we can kill, steal or commit adultery. Those are moral values which we are to observe.”

The contested law eased one of Europe’s most restrictive abortion statutes--passed by a Solidarity-led government in 1993--by permitting abortions for compelling social and financial reasons until the 12th week of pregnancy. Critics, including those on the Constitutional Tribunal, said its loose wording effectively legalized abortion on demand by giving too much discretion to the mother-to-be.

Provisions relating to rape, incest and grossly deformed fetuses, however, were unaffected by Wednesday’s ruling, according to Polish government officials.

Resistance to the new law has been formidable. Thousands of doctors in public hospitals have refused to perform abortions on moral grounds, forcing women to seek out more expensive private clinics. Meanwhile, other provisions of the law not affected by the high court ruling--such as mandatory sex education in schools--have been mired in bureaucratic and political infighting.

Aside from its highly charged social and political implications, constitutional scholars described the 9-3 ruling as an unprecedented act of judicial activism by the country’s highest court.

Wiktor Osiatynski, co-director of the Center for the Study of Constitutionality in Eastern Europe at the University of Chicago, said the Polish tribunal has often invoked in its rulings the principle of democratic “rule of law,” but never to embrace a contentious moral value such as protection of life from conception.

“It is not the place of a constitution to predetermine the social debate about values,” Osiatynski said. “The court is going a bit too far.”

Short of a national referendum, however, there is little chance the ruling can be altered.

Parliament has six months to reject the decision, but only with a two-thirds majority vote, which abortion rights advocates concede will be impossible to muster.

“As it looks now, the decision might be remembered as a nice gift from the Constitutional Tribunal to the pope,” Osiatynski said.