WARSAW—Poland’s top court declared abortions unconstitutional when conducted because of fetal abnormalities, a victory for the Catholic conservative ruling party in its yearslong struggle to further tighten some of Europe’s strictest such laws.
Poland will now only allow abortions in cases of rape, incest, or when the health of the woman is at stake. Its laws make the majority Catholic country nearly the hardest place in the European Union to terminate a pregnancy, excluding tiny states such as Malta or in jurisdictions such as Northern Ireland, where such procedures are illegal.
Cases in which there was a high probability of a severe fetal impairment or incurable disease accounted for 97% of abortions last year in Poland. In its ruling on Thursday, the country’s Constitutional Tribunal said to terminate a pregnancy for such reasons was a form of “eugenic practices.”
The law was “legalizing eugenic practices in the field of the right to life of an unborn child and making the protection of the right to life of an unborn child dependent on their health condition, which is forbidden direct discrimination,” the court said in a short judgment. It was “violating the constitutional guarantees for human life.”
“It is not possible to talk about the protection and the dignity of human beings if there is no sufficient basis for the protection of life,” Judge Rapporteur Justyn Piskorski said in announcing the decision.
The ruling satisfied a long-held goal of Poland’s Law and Justice party, which is allied with the Catholic church. Since coming to power in 2015, the party has tried to remove the fetal-exemption clause, one of the few allowances in a 1993 law that overturned the Communist era’s more tolerant policy toward abortion.
In 2016, the party tried to pass legislation that would ban abortion in nearly all cases, including rape, but backed down after tens of thousands of demonstrators thronged through Warsaw and other cities.
Thursday’s ruling came in a sharply different climate. Poland is in the middle of a wave of Covid-19 infections, with a record-breaking 12,107 cases registered Thursday. Weddings, funerals and other gatherings have been forbidden and the national news has focused on scenes of ambulances lined up at unprepared hospitals. As the ruling grew near, protests were mostly contained to a small group of about a dozen demonstrators who camped outside the Constitutional Tribunal in recent days.
“Throwing in the topic of abortion and ruling a pseudo-tribunal on it in the middle of a raging pandemic is more than cynicism,” former Prime Minister Donald Tusk wrote on Twitter. “This is political villainy.”
Poland’s Constitutional Tribunal has been a source of friction between the ruling party and the liberal opposition. Since taking power, Law and Justice has been able to purge the top court and restock its bench with conservative judges, using mechanisms that the opposition says are norm-breaking and extra-constitutional. The European Commission, which is the executive branch of the EU, has criticized the ruling party for its moves, saying “there is a systemic threat to the rule of law in Poland.”
The ruling party has said the court is now more responsive to Polish voters, who have repeatedly elected Law and Justice majorities in Parliament.
The government applauded the court’s ruling. “We are expressing satisfaction that the Constitution Tribunal took the side of life,” said Błażej Spychalski, spokesperson for President Andrzej Duda.
About 150,000 Poles each year leave the country to terminate pregnancies in neighboring states such as Slovakia, where abortions clinics are staffed with Polish-speaking nurses, women’s rights groups say. Polish doctors are often reluctant to perform even legal abortions for concern of falling afoul of the law, or for religious reasons. Thursday’s ruling would exacerbate those issues, said Małgorzata Kidawa Błońska, deputy-marshal of the Parliament.
“In the end it will make women’s lives hell,” she said. “It strips women of their right to make a choice. It will not be them who will make the decision, but the soulless law.”
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