Anti-abortion laws vs. women's rights - legal opinion

Anti-abortion laws vs. women's rights - legal opinion

On 6 October 2016 the Polish Sejm definitively rejected the citizen’s bill, proposed by the “Stop Abortion” coalition that would have introduced a total ban on abortion in Poland. The fact that thousands of women  protested againt it and striked across Poland and abroad brought about an unexpected vote at the Justice and Human Rights Committee, and then at the Parliament. Commissioned by the Institute of Public Affairs [in Poland], Professor Monika Płatek has prepared a legal opinion on the proposed law that would have amended the Family Planning, Protection of Human Embryo and Conditions of Termination of Pregnancy Act and the Act of 6th of June 1997 – Penal Code.

Below, we have included selected conclusions from Professor Płatek’s assessment facilitating an understanding of the scale of social protest this draft law was met with:

1. Abortion should be legal, safe and rare.

2. The draft law removes the obligation of the state to ensure that its people have the right to independently, responsibly and comprehensively decide on their fertility, bodies, physical health, psychological and social well-being, as well as to plan parenthood. It also allows the Polish authorities to shirk responsibility for ensuring that Poland’s citizens have the right to information, education, advice, contraceptives and other means allowing for conscious parenthood, as well as access to prenatal examinations. Consequently, under the cloak of protecting health and life, the draft law puts the health and lives of both mothers and foetuses at risk.

3. The draft law bans all abortion. It prohibits termination of a pregnancy that occurs as a result of rape, a pregnancy that poses a threat to the life of the pregnant woman, and also termination in the case of seriously ill, deformed foetuses. The draft law consistently criminalises miscarriage by putting the reason for the miscarriage under investigation by the public prosecutor.

4. The draft law, submitted under the guise of protecting life, undermines human dignity, and the health and life of women and foetuses before birth.

5. The promoters of the draft law reduce women to the role of incubators, and deny them the right to self-determination. They assume that women lose their right to decide about themselves at the point of conceiving.

6. The contents of the draft law potentially ban and criminalise IVF infertility treatment, as well as the provision of emergency contraception.

7. In the draft law, the protection of life and health is based on instruments of the penal law. This stands in contradiction to the rule that – in the legislation process – the penal law functions as the ultima ratio, meaning it is the ultimate measure for regulating human behaviour. The proposed changes criminalise both the intentional and unintentional termination of pregnancy. The draft law designates the penal law as the basic instrument for controlling human fertility.

8. Just as no one is under the obligation to undergo an abortion (a pregnant woman may choose death or the loss of health), a pregnant woman cannot be condemned to death or the loss of health through being declined an abortion. Nobody other than the pregnant woman herself can decide about either her fertility or her life.

9. The protection of life involves the state fulfilling its obligation to ensure that people have the right to make responsible decisions concerning procreation. This obliges the authorities to respect the reproductive rights of women and men, and thus ensure access to knowledge, free-of-charge examinations (including prenatal examinations) and contraceptives (including emergency contraception).

10. The protection of life and health requires a social policy that guarantees that the sexual autonomy of women and men is respected, and that women and men are protected from rape and other forms of sexual violence. It is necessary to ensure that persons born with genetic disorders participate in social life on equal terms.

11. Viewing reproductive rights through the prism of demographic problems is an inadmissible instrumentalisation of human beings.

Link to the whole text of the legal opionion in Polish

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