How Poland’s Extreme Abortion Ban Harms Pregnant People and Their Babies

By Markus Richard

In the twenty-first century, the overwhelming trend in abortion laws worldwide has been toward liberalization — in the direction of easier access, rather than restrictions. The Republic of Ireland, known as a socially conservative, heavily Catholic nation for most of modern history, voted sixty-four percent to thirty-four percent in favor of allowing the legislature to legalize abortion in May 2018.[1] In Argentina, another bastion of Catholic social conservatism until very recently, the National Congress approved abortions up to the fourteenth week of pregnancy in December 2020 after having a near total ban with exceptions for the pregnant person’s health and rape victims.[2] Nepal went from having a complete ban on the procedure before 2002 to passing a law in 2018 that recognized abortion as a fundamental human right.[3]

There are important exceptions to this trend. The decision in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to an abortion for pregnant people in the United States. The decision allows states to either protect abortion rights or ban the procedure with or without exceptions for the most egregious cases.[4] In Poland, the Constitutional Court ruled in October 2020 that abortions for egregious cases of fetal abnormalities were unconstitutional.[5] In a deeply Catholic and conservative country where all but twenty-six out of 1,100 abortions in 2020 were in cases of abnormalities, this amounted to a complete ban.[6]

For pregnant people in Poland, the ban has had predictable consequences which affect every pregnancy, even planned pregnancies. While abortions are technically legal if their health and life is at risk, “there is no clear and straightforward answer to what constitutes a threat to a woman’s health and life. Doctors are afraid to make decisions.”[7] This includes both acute and chronic health issues, even cancer.[8] Yes, Polish doctors have been delaying critical cancer treatment by weeks at a time to prioritize the health of the fetus over the pregnant person’s life.[9] Rape victims must first obtain a certificate from a prosecutor before getting an abortion, which not only takes time but requires them to admit to the state that they were raped — making an already traumatic experience even more traumatic.[10]

With the next national parliamentary election expected by mid-November 2023, the chances of changing the law on abortion in Poland are slim. Courtesy Open Democracy.

Make no mistake, the new legal regime in Poland has already had deadly consequences for pregnant people, even for those who planned to carry their baby to term. Izabela Sajbor, a thirty-year-old hairdresser and mother to a nine-year-old daughter, was thrilled to be pregnant.[11] Unfortunately, she learned at fourteen weeks that her baby had serious malformations such as deformed feet and only one functional heart chamber.[12] She could not obtain a legal abortion in Poland or abroad before her water broke.[13] By the time the baby’s heartbeat stopped, it was too late.[14] Ms. Sajbor died soon after.[15] Her death was a predictable consequence of laws that treat pregnant people who want their baby as mere incubators, whose lives matter less than the nonviable fetus’s life in their womb.

Abortion was not always hard to access in Poland. The then-communist government, though generally quite conservative, decriminalized abortion in 1956 and allowed for on-demand abortion three years later.[16] From then until the early 1990s — after the fall of communism — it was “widely practiced in public hospitals and private clinics.”[17] In 1993, the liberal abortion regime under the communists came crashing down with the Law on Family Planning, Human Embryo Protection, and Conditions of Abortion.[18] This new law allowed abortions in public hospitals only when the health of the pregnant person was in jeopardy if: (1) three doctors agreed, (2) when “serious and irreversible malformation of the fetus” are detected, or (3) when a prosecutor certified that the pregnancy was a result of rape or incest.[19] Abortions were banned entirely in private clinics.[20] Doctors who performed abortions in private clinics were subject to up to ten years’ imprisonment in the event that the pregnant person died from the procedure.[21] Of course, this policy did not end abortion procedures in Poland.[22] The policy, however, substantially harmed the availability of safe, legal abortion procedures.[23]

The new, strict ban that only allows abortions in cases of rape or incest is unpopular. Only ten percent of Poles support the policy, which, like the Dobbs decision in the United States, a high court stacked with ultra-conservative judges (loyal to the conservative leaders that appointed them) judicially enacted — public opinion be damned.[24] Indeed, there were large protests in the days and weeks after the ruling.[25] And yet, like its American counterpart, the anti-abortion movement in Poland will not be satisfied until abortion is completely banned in all cases with no exceptions.[26] Katarzyna Gesiak, the head of Ordo Iuris, a Catholic organization that lobbied for the judicially imposed ban, thinks the ban is “too general” and “too open to interpretation” because it leaves open some space for doctors to make determinations that an abortion is necessary.[27]

At the same time, the prospects for reform are grim. The Sejm (Polish Parliament) voted in June to reject a citizens’ initiative to legalize state sponsored abortion care for pregnant people on-demand for up to twelve weeks.[28] With the next national parliamentary election expected by mid-November 2023, the chances of changing the law on abortion in Poland are slim. Unfortunately, pregnant people will suffer the consequences.

[1] See Irish Abortion Referendum: Ireland Overturns Abortion Ban, BBC News (May 26, 2018), https://www.bbc.com/news/world-europe-44256152.

[2] Argentina Abortion: Senate Approves Legalisation in Historic Decision, BBC News (Dec. 30, 2020), https://www.bbc.com/news/world-latin-america-55475036.

[3] Shivani Mishra, Recognized Yet Limited: Abortion Rights in Nepal, Hum. Rts. Watch (June 13, 2022) https://www.hrw.org/news/2022/06/13/recognized-yet-limited-abortion-rights-nepal.

[4] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[5] Monica Pronczuk, Poland Court Ruling Effectively Bans Legal Abortions, N.Y. Times (Oct. 22, 2020), https://www.nytimes.com/2020/10/22/world/europe/poland-tribunal-abortions.html.

[6] Isabella Kwai et al., Near-Total Abortion Ban Takes Effect in Poland, and Thousands Protest, N.Y. Times (Jan. 27, 2021), https://www.nytimes.com/2021/01/27/world/europe/poland-abortion-law.html.

[7] Katrin Bennhold & Monika Pronczuk, Poland Shows the Risks for Women When Abortion is Banned, N.Y. Times (June 12, 2022), https://www.nytimes.com/2022/06/12/world/europe/poland-abortion-ban.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Wanda Nowicka, The Struggle for Abortion Rights in Poland, SXPolitics, https://sxpolitics.org/frontlines/book/pdf/capitulo5_poland.pdf (last visited Sept. 3, 2022).

[17] Id.

[18] Henry P. David & Anna Titkow, Abortion and Women’s Rights in Poland, 25(4) Stud. in Fam. Plan. 239, 239 (1994).

[19] Id.

[20] Id.

[21] Id.

[22] Bennhold & Pronczuk, supra note 7.

[23] Id.

[24] Id.

[25] Clashes at Abortion Protest in Warsaw as Police Use Tear Gas and Force Against Demonstrators, Notes from Poland (Nov. 19, 2020), https://notesfrompoland.com/2020/11/19/clashes-at-abortion-protest-in-warsaw-as-police-use-tear-gas-and-force-against-demonstrators/.

[26] Bennhold & Pronczuk, supra note 7.

[27] Id.

[28] Polish Parliament Rejects Bill to Liberalise Abortion Law, Notes from Poland (June 23, 2022), https://notesfrompoland.com/2022/06/23/polish-parliament-rejects-bill-to-liberalise-abortion-law/.