The Balancing Act: The Mother’s Autonomous Rights to Choose

By: Kelsey Elling

Issue

Poland already has some of the strictest abortion laws in the world and now there is a push to make abortions almost impossible to obtain legally.  

Background Information

Poland has some of the strictest abortion laws in the world, which has much to do with the influence of the Catholic Church and the conservative views of the citizens.[1] Before 1932, abortion was completely illegal in the country.[2] After 1932, the Criminal Code of 1932 was passed and made abortion legal if the pregnancy resulted from rape and where the mother’s life was at risk.[3] Between 1956-present, the legality of abortion has fluctuated quite a bit.[4] In 1956, Poland “legalized”[5] abortion on “social grounds,” but, even with this legalization, Poland did not formally recognize a woman’s right to abortion.[6] The legalization of abortion was based on a need-approach and not on a rights-approach.[7] In 1993, an Anti-Abortion law was instituted until 1996 when abortion was legalized once again.[8] In 1997, a Constitutional Tribunal held that abortion on “social grounds” is unconstitutional and abortion in Poland was once again de-legalized.[9] The only way a woman could obtain an abortion was if she was raped or if her life was at risk.[10] Fast forward to present day and there is a push in Poland to make abortion laws even stricter.[11] This push is to make abortions illegal, even for medical reasons.[12] It is clear that Poland has failed to reach a consistent solution on whether abortion should be legal; however, it is clear that Poland has never recognized the woman’s right to get an abortion.[13]

Analysis

Just as Ireland voted to legalize abortion last year, Poland is making the push to go in the opposite direction and make all types of abortion illegal.[14] Abortion in Poland is currently illegal, last made illegal in 1997 by a Constitutional Tribunal, which was criticized by many lawyers in Poland.[15] However, women can obtain an abortion for medical reasons or if she was raped. It can be argued that abortion is still illegal in Poland because abortion was only made legal under an instrumentalist and needs-based approach, rather than an approach based on human and woman rights.[16] Moving forward, the Polish government should make decisions based on the rights of a woman and an individual. This would take the Country and the government to shift their view of abortions and become more tolerant of such procedures. Focusing on the right of abortion, rather than if a woman needs an abortion, could ensure that this right becomes more institutionalized.

Another reason that Poland should consider loosening its regulations on abortion has to do with the high maternal mortality rates due to unsafe underground abortions.[17] Making something illegal is not going to stop them from partaking in the activity. It, in turn, is only making it more dangerous for these women who are seeking the underground market to obtain abortions.[18] Legal and safe abortions play a crucial role in keeping women safe, more than 30,000 women still die from botched abortions each year throughout the world.[19] Again, while the focus should be on human rights it is also important to note the medical side of making abortions more legal. While a woman may need an abortion for medical reasons, she also should enjoy the right to choose no matter her medical condition.[20]

A big push for keeping abortion laws strict and abortion illegal comes from the Catholic Church itself.[21] Poland is a Catholic Country and this heavily influences abortion law.[22] However, this argument can be rebutted because the state and church should be kept separate. Ireland, which also has a heavy Catholic presence, as recently voted to make abortion legal.[23] Present day, the Church pushes for even more restrictive bills to strengthen the restrictions on abortion in Poland.[24] Furthermore, supporters of stricter abortion laws focus on the needs of the babies, even if the babies are certain to die in childbirth.[25] This focus revolves around religion with the hope that every child, even one who will not make it through childbirth alive, will be baptized, buried, and given a name.[26] This essentially gives more rights to an unborn baby than an alive woman.

Citizens of Poland should continue to protest these laws and protest the push to make abortion laws even stricter.[27] While one protest is not going to change the law it will bring more attention to this issue to the government and stir public attention.[28] Moreover, moving forward in Poland the argument needs to be focused more on a  rights-based approach, while keeping in mind the women’s needs.[29] Doing this will hopefully make abortion legal in Poland for the long-haul because all past attempts to legalize abortion has been on the basis of a needs-based approach and has failed.[30]

Conclusion

             A woman should have a right to choose to abort or to not abort. This reason comes down more to the woman’s rights, and the focus moving forward in Poland should be based on this approach and not the need-approach.[31] Once Poland is ready to recognize a woman’s right to abortion then the steps can be made to liberalize the legislation and make stride to legalize abortion. Until then any needs-based approaches will continue to fail in Poland.

[1] Madeline Roachie, Poland is Trying to Make Abortion Dangerous, Illegal, and Impossible, Dispatch (Jan. 08, 2019).

[2] Wanda Nowcka, The Struggle for Abortion Rights in Poland in Sexpolitics: Reports from the Frontlines, 167, 169.

[3] Id. The code did not account for if the baby’s life was at risk, only the mother’s. Id.

[4] Id. at 169-170.

[5] Id. While women could get an abortion, they had to consult with two doctors before doing so. Id.

[6] Id.

[7] Id. at 173.

[8] Id. at 170.

[9] Id.

[10] Id.

[11] Marc Santora & Joanna Berendt, Polish Women Protest Proposed Abortion Ban (Again), N.Y. Times (March 23, 2018).

[12] Id.

[13] See Nowcka, supra note 2, at 170.

[14] Roachie, supra note 1.

[15] Nowcka, supra note 2, at 169.

[16] Id. at 167.

[17] Id. at 171.

[18] Roachie, supra note 1.

[19] Id.

[20] Nowcka, supra note 2, at 173.

[21] Id. at 170.

[22] Roachie, supra note 1.

[23] Id.

[24] Nowcka, supra note 2, at 170.

[25] Sanatora &Berendt, supra note 9.

[26] Id.

[27] See id.

[28] See id.

[29] Nowcka, supra note 2, at 173.

[30] Id. at 175.

[31] Id.

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