The Polish Government, undeterred by losing a parliamentary vote on abortion in July, has issued guidelines allowing terminations to be performed on demand at any stage of a pregnancy.
Any such procedure would be based on a doctor’s discretionary opinion that a pregnancy was a threat to a woman’s physical or mental health.
On September 12, Conservative lawyers’ think-tank Ordo Iuris responded by taking the government to the Constitutional Tribunal, or court, (TK), a body whose judgments are not recognised by the Tusk administration.
As a result of a TK ruling in 2021, abortion in Poland was outlawed in all cases with the exception of those where a pregnancy was as a result of crime or if a woman’s life was endangered. The move lead to a fall in the number of legal terminations, from more than 1,000 in 2020 to 107 in 2021.
Now the government led by Donald Tusk, who recently admitted there was no parliamentary majority for changing the abortion law because part of his ruling coalition from the centre-right Polish People’s Party PSL is opposed, has published guidelines aimed at ensuring that doctors and prosecutors “take the woman’s side” when she requests an abortion.
The government has thus effectively acted on Tusk’s promise that “if we won’t change the law, we will change the reality”, which enables women to have abortions as part of their health insurance coverage if a doctor decrees there is a threat to mental or physical health.
The new guidelines issued on August 30 also limit the “conscience clause”, which allow doctors to opt out of performing abortions in cases deemed to risk danger to a woman’s health.
The director of Ordo Iuris Jerzy Kwaśniewski has said the government’s decision on abortion meant it was “pushing through the most pro-abortion agenda in Europe regardless of Polish laws and constitution” and that it threatened to punish doctors and hospitals with disciplinary action and fines if they questioned any medic’s abortion certificate.
Kwaśniewski, writing on the Ordo Iuris website, added that Tusk had actually said prosecutors should not enforce the law, which in his government’s opinion was “bad and restrictive”.
Ordo Iuris has responded by preparing a petition to the TK to declare the government’s action unconstitutional as well as motions to bring Tusk, justice minister Adam Bodnar and health minister Izabela Leszczyna before the Tribunal of State for issuing a “normative act that introduces abortion by certificate” and on demand, in contravention of existing legislation. That Tribunal is the body charged with disciplining officials for violations of the Constitution.
Kwaśniewski acknowledged that the government was unlikely to respond to the TK legal action as it does not recognise the court as validly constituted following a dispute in which the European Commission and the European court of Justice sided with critics of the previous Conservative (PiS) government’s changes in the judiciary.
In a recent meeting with top lawyers, Tusk defended his administration’s actions – such as refusing to recognise courts reformed during the PiS’ reign.
He told a conference on “ways out of constitutional crisis” held on September 10 that his government faced a judicial and legal system that he alleged “had been devastated by the previous government” and could not be “reset in a way which will satisfy the legal purists”.
Tusk claimed he was governing in “a democracy fighting to restore itself” and therefore he had to take action that in situations he would have preferred to avoid. “Nothing can remove my responsibility for acting”, he said, adding that otherwise “there will be no sense in governing”.
His remarks came a day after he had been criticised by the Conservative PiS opposition and legal experts for announcing that he was “revoking” his signature from a judicial appointment he claimed he had made “by mistake” in August.
On August 26 the PM counter-signed a decision by the PiS-aligned President Andrzej Duda to appoint a judge as chair of an assembly that would choose a new head of the Supreme Court’s civil law chamber.
Tusk said that he had to sign “hundreds of documents” daily and that this one had “slipped through the net”.
He added that “very clearly a mistake had occurred” because the “official responsible for preparing the signing did not notice the political nature of the document”. His decision to revoke the counter-signature came in response to a request by a number of Supreme Court judges.
Tusk’s action was slammed by both the opposition and numerous legal experts as having “no legal force”.
Andrzej Zoll, a former chief justice of Poland’s constitutional court, told broadcaster TVN24: “There is no basis in the legal system, especially in the Constitution, for withdrawing a counter-signature”, while a former adviser to Tusk, Marek Chmaj, said the PM’s decision risked “causing chaos”.
