Killing ‘Unborn Children’? The Catholic Church and Abortion Law in Poland Since 1989

Introduction

Legislation on reproductive rights in Poland is among the strictest of all European countries. As with Malta and Ireland, the regulations in Poland do not allow for the termination of pregnancy on the grounds of the difficult social or economic situation of a woman. There are only three circumstances in which abortion is legal in Poland: where there is a threat to the woman’s life or health, where the pregnancy is the result of a criminal act and where there is serious malformation of the foetus. Such regulations, enacted in 1993, have come to be known as the ‘abortion compromise’ between different social and political actors and groups in Poland, but above all – as a solution that is acceptable to the Polish Catholic Church.

As many authors who have analysed Poland’s transition period have emphasized, the restriction on abortion was in line with the overall re-masculinization of public discourse and re-traditionalization of gender roles which followed the collapse of state socialism in 1989 (Fodor et al., 2002; Fuszara, 1991; Heinen and Portet, 2010; Nowakowska, 1997; Pascall and Lewis, 2004; Renne, 1997; Saxonberg and Sirovatka, 2005). The portrayal of a woman’s role predominantly as a mother was an important part of the process of departure from state socialism (Gal and Kligman, 2000).

At the same time, the Church ‘has taken the position that abortion is equal to murder’ (Ireland, 2013). Heinen and Portret (2010: 1008) stress nationalism and familialism as two ideologies that dominate debates on reproductive rights in Poland, with the Catholic Church as the main actor that feeds ‘pro-life’ discourse and constantly challenges the existing legislation regarding reproductive rights. Heinen and Portret point to the equation ‘Pole = Catholic’ and to the discourse relating to Polish martyrdom; they argue that due to the Church’s influential role in the opposition movement during the period of state socialism, the Catholic Church has a powerful position in relation to the state and the government. In fact, the Church’s priests were actively engaged in staging strikes in factories, also participating in the national meetings of the Solidarity trade union. After the collapse of state socialism, the Church appeared to many to deserve special treatment in the public sphere due to its previous commitment to the opposition movement. It is important to stress at this point that the Church managed to successfully lobby for the introduction of Catholic religion classes in state schools, via an executive act of the Minister of Education in 1990, ¹ which was confirmed by the 1993 bilateral agreement between Poland and the Vatican (Concordat). ² The Church’s prominent influence in politics has been characterized as the price that the government has to pay to stay in power and in order to be able to introduce reforms and transform the Polish economy and political system from communism to a market economy and democracy (Caytas, 2013).

The objective of this article is to describe and analyse the development of abortion law in post-1989 Poland, with a focus on the influence of the Catholic Church and ‘pro-life’ circles on the form of, and the implementation of, legislation. Therefore this article goes beyond a mere analysis of the influence of the Catholic Church on the form of abortion law in Poland and examines the implementation of the legislation, emphasizing the importance of micro-interventions even after the law was adopted. The section ‘Why the Church? Tracing and Framing the Role of the Catholic Church in Public Discourse on Abortion After 1989’ outlines the manner in which the Catholic Church became influential in political life in Poland and in particular in respect of reproductive rights. The section ‘Influencing the Legislative Process: The Development of Legislation on Abortion in Poland’ sets out the development of the new legislative provisions on abortion in Poland. The section ‘Implementation: The Facts on Abortion in Poland and Case Law’ describes how that legal framework has operated in practice through an examination of European Court of Human Rights (ECtHR) case law on the implementation of abortion laws.

Why the Church? Tracing and Framing the Role of the Catholic Church in Public Discourse on Abortion After 1989

The influence of the Catholic Church on the discourse surrounding abortion has often been analysed as an example of a political actor’s impact on public policies (Fink, 2009; Knill et al., 2014; Schreiber, 2011). The Polish position, in particular, receives more attention due to its restrictive abortion law and the strong presence of the Catholic Church in public life (Heinen and Portet, 2010; Mishtal and Dannefer, 2010; Mishtal, 2015). The Church’s influence on public policies or the general climate for policymaking in Poland has often been linked to the Church’s support for opposition movements during the period of state-socialism (Chałubiński, 1994; Heinen and Portet, 2010). As the communist rulers felt challenged by the institutional autonomy of the Church, Catholic priests were often imprisoned for spreading anti-regime ideas, often during Sunday masses. Church buildings were safe havens, where public gatherings could take place, and were also used by the opposition leaders who often had strong ties to the priests. Priests were present during a majority of social protests or strikes, including Solidarity strikes in 1980. Many churches became enclaves, where the priests provided a safe space for meetings to set up local branches of the Solidarity trade union; the priests often stayed inside many of the factories, among the workers who went on strike and celebrated masses or heard the workers’ confessions. In addition, Karol Wojtyła was elected Pope in 1978 and, as Pope John Paul II, visited Poland the following year. During public religious meetings attended by hundreds of thousands of people, the Pope often referred to independence, indirectly opposing the regime, which, according to some commentators, represented an important trigger for the series of protests in the early 1980s. At the end of the 1980s, 95% of Poles declared their trust in the institution of the Catholic Church and in the Church’s public activities (Chałubiński, 1994).

After the collapse of state socialism, the Catholic Church represented, in a way, one of the ‘heroes’ of the opposition’s fight for freedom and therefore gained direct access to public debate and the media, which was in the process of turning its attention from issues of national independence and religious freedoms to the content of public policies in the new, democratized Poland. Trust in the Polish Church was, for example, very different from the situation of the Spanish Church after the fall of the Franco regime – this was because of the Spanish Church’s support for Franco. Thus, the fact that abortion law was restricted shortly after the collapse of the state-socialist regime is significant in framing the issue of abortion in the context of the (now) independent Polish nation state in the making. In addition, several authors have emphasized the links between this nation-building, Catholicism and conservative policies on the family and gender (Deacon, 1993; Fodor et al., 2002; Pailhe, 2000), giving the example of abortion legislation as directly or indirectly influenced by explicit or latent action of the Catholic Church, its officials and secular Catholic organizations. The latter, such as the Polish Social and Catholic Association (late 1980s), the Polish Association of Defenders of Life or the ‘Pro’ Foundation (2000s) provided organizational resources for recurring initiatives to collect signatures to draft a law introducing an absolute ban on abortion. While the Church provided infrastructure for the organizations’ first meetings and campaigning during the 1980s, in the 1990s the organizations started to act autonomously, although always with the constant cooperation and support of the Church. Apart from influencing the new legislation on the termination of pregnancy, the Catholic Church in Poland was, and still is, active in hindering access to publicly funded contraception (Mishtal and Dannefer, 2010) as well as restricting public debate on lesbian, gay, bisexual and transgender rights and on civil partnerships (Keinz, 2011).

Understanding conservative attitudes towards gender roles as playing an important part in the process of building and strengthening national identity has become a topic of feminist studies on nationalism and gender, especially with regard to women’s reproductive roles (Spivak, 2009; Drezgić, 2010). Control over women’s bodies is often exercised by modern state institutions dominated, especially at the beginning of the process of nation-state formation, by men. For example, following the 1960s, the role of the Catholic Church in Ireland was as ‘chief signifier of nationalist identity’ (Fletcher, 2005). (Re)gaining independence as the consequence of post-communist democratization in several Eastern European countries facilitated religious influence on public institutions and state policies, as part of the process of departure from communism. This was seen as compensation for the previous ban on religious activities (and in some cases aggressive secularization) under the communist regime (Chałubiński, 1994). In Serbia, the processes of re-traditionalization and re-patriarchalization of the public sphere took place gradually, after discourse on separate gender roles became part of the mainstream public debate. This resulted in the rising role of religion and the Orthodox Church (Drezgić, 2010). In Poland, the year 1989 was often also presented as ‘regaining independence’ in the sense of the existence of a nation state. The identity of the Polish nation was rooted in its history of struggling for independence, and characterized as one of national tragedy and martyrdom, with frequent religious adherence to the figure of the Virgin Mary (as Poland’s spiritual patroness) and to motherhood in general (Titkow, 2007).

The increased influence of religion on public discourse after 1989 was reflected in the context of abortion and reproductive rights by a change in the legal language, when the aborted foetus began to be referred to as an ‘unborn murdered child’. Reference to the foetus as an ‘unborn child’ seems to hold symbolic power but is also institutionalized, for example, by the Irish Constitution that provides for ‘the right to life of the unborn’ in Article 40.3.3°. Other methods used to reinforce the concept of the unborn child include the production of photographs of aborted foetuses and discussion about what is termed ‘post-abortion syndrome’ (Kelly, 2014) that purportedly is experienced by women who choose to terminate a pregnancy. This emphasis on abortion as an act of infanticide is the prevailing line of argumentation advanced by the Catholic Church and secular Catholic organizations. Nationalism with religious references plays an important role in the main discourse used by conservative political circles and the Church itself (Pole = Catholic). The representatives of Catholic organizations and priests regularly drew a parallel between the Holocaust, genocide and eugenics and destruction of Polish foetuses. The use of such a parallel has not been limited to Poland – ‘pro-life’ organizations in the United States have used it since the 1960s: they combined photos of Auschwitz victims with photos of dead foetuses (Condit, 1990 as quoted by Kuźma-Markowska 2011: 144). In the case of Poland, there are two specific sources of such a parallel. First, the only two instances of the liberalization of the abortion law in Poland took place when Poland was not a fully independent country. The first ever law legalizing abortion on demand in Poland was introduced during World War II, by the Nazi regime, with the aim of limiting the fertility of Poles (quotations from the Nazi regime’s internal documents as included in Auschwitz Studies no 2/1958). The next point at which abortion on demand became legal was under the communist regime, in 1956, when Poland was under the Soviet influence. Secondly, priests and Church officials also referred to concrete plans made by the Nazi regime to limit fertility among Poles (‘depopulation of Poland’), published in the above-mentioned volume of Auschwitz Studies, an official series of publications by the Auschwitz Museum, where the Nazi regime’s internal documents were revealed. To sum up, liberalization of abortion became associated with external occupying powers (both in the case of the Nazi and Stalinist regimes) and the physical elimination of the Polish nation (mostly in the case of the Nazi occupation and the depopulation plans). Similarly, the Church’s officials often contrast ‘natural’ (God’s) law (and morality) with an ‘artificial’ (imposed, ‘stalinist’) (human) legal order. In other words, the Church presented itself as a defender of the biological continuity of the Polish nation, threatened by the practice of legal abortion, associated with the history of genocide. This way a symbolic division was established and strengthened: between the ‘true’ Poles that are necessarily Catholics and against abortion on one side and the ‘anti-life’, non-Catholic political actors in favour of legal abortion, often inspired by the foreign forces. This parallel between genocide and abortion has also been used in concrete cases where a woman who terminated a pregnancy was compared to a Nazi (see section ‘Implementation: The Facts on Abortion in Poland and Case Law’ below).

The Church’s influence extends also to the process of policy formulation (in some instances by providing a template for draft legislation) and the practice of implementing the law. Most often, the actors involved in shaping the legislation and the discourse on abortion are, on the one hand, Catholic Church officials, aligned with right-wing/Christian democratic parties, ‘pro-life’ activists, and on the other, the pro-choice movement, feminist organizations such as Pro Femina and the Federation for Women and Family Planning (Warsaw) or eFka (Cracow), and politicians from left-wing parties. The left-wing politicians were using their legislative initiative and their majority in parliament. Simultaneously, the feminist organizations pursued campaigning activities including street protests, open letters and most remarkably – the collection of signatures as part of a petition to organize a nation-wide referendum preceding the criminalization of abortion. Another intervention method was legal assistance and guidance, which the Federation for Women and Family Planning provided with the cooperation of the Helsinki Foundation of Human Rights in Warsaw to women taking legal action to challenge the existing legal framework (see also section ‘Implementation: The Facts on Abortion in Poland and Case Law’ with case law). Each of these two groups (‘pro-life’ and pro-choice) produces their own discourses on abortion regulation. Rodríguez-Ruiz (in this volume) analysing European discourses on abortion, notes the confrontational character of a masculine discourse that creates an opposition between the foetus (the ‘child’) and the pregnant woman (the ‘mother’). The importance of this oppositional discourse should not be understated and the issue is discussed in more detail in section ‘Influencing the Legislative Process: The Development of Legislation on Abortion in Poland’ of the article.

Influencing the Legislative Process: The Development of Legislation on Abortion in Poland

In this article, the method used to describe and analyse the Church’s influence on legislation is to identify the influencing strategies and evaluate them by reference to three types of activities matched with the influence channel employed and the possible outcomes of the influence. Following Jones (2011), I am using the three types of influence activities:

evidence and advice (channelled through formal and informal meetings and expertise provision, resulting in changes in language and evidence-based advocacy);

Tracing the Church’s impact via these three activities illustrates how the public sphere was infiltrated by a religious organization, namely, the Catholic Church. My argument is that the Catholic Church, on both legislative changes and the implementation of the binding law, utilized all three influence activities. In the case of legislative changes, the method of gauging the church’s impact would be to identify the most significant change (the introduction of the abortion ban) and compare it with the substantial available evidence such as legislative drafts provided by the Church both formally and informally. Identifying another channel of influence requires the analysis of media coverage and press materials of policy advocacy (‘pro-life’ campaigns) providing and framing new kinds of evidence (on the ‘human’ characteristics of the embryo), as well as litigation documents that serve as basic material for describing the practices of Catholic priests. I am placing the legal developments in a wider political context of post-communist politics in Poland described in section ‘Why the Church? Tracing and Framing the Role of the Catholic Church in Public Discourse on Abortion After 1989’ and referring also to the political composition of the consecutive governments. Using the press material, as well as the legal provisions, to analyse the shift in language about abortion requires focusing on a variety of actors: politicians, Church officials, ‘pro-life’ movement activists, physicians, legal experts and women’s pro-choice organizations.

The history of the legal regulation of abortion in Poland is marked first by legalization and then criminalization. The ban on abortion after the First World War was inherited from the period of partition. Poland existed as an independent country before successive partitions at the end of the 18th century. The country was divided into three parts by Austria, Russia and Prussia. Poland became an independent country in 1918, in the wake of the First World War. The first liberalization of the law was introduced in 1932 by Article 233 of the Criminal Code. ³ There were two circumstances in which abortion was legal: (1) when the mother’s health or life was threatened and (2) when the pregnancy was the result of a criminal act. At that time, Poland had one of the most liberal abortion laws in Europe. For the first-time legislation recognized a criminal act (rape, usually) as a valid justification for the termination of pregnancy. The Catholic Church opposed the new law and tried to influence the work of Parliament’s Codification Commission by sending letters in which bishops compared the new law to a ‘new grave for the nation’ (Gaudyn, 2011). However, these attempts were unsuccessful.

Poland lost its independence again in 1939 after the Nazi and Soviet invasions. As mentioned already, the first time the abortion ban was lifted was during the Nazi occupation of the Polish lands. As quoted above, the internal Nazi documents stated as early as 1939 that ‘all means to decrease fertility [among Poles] should be used and supported. Termination of pregnancy should be legal and not penalised’ (an excerpt from a document issued by the ‘Race Politics Office’ of the NSDAP, as published in Auschwitz Journals no2/1958). While the law of 9 March 1943 introduced the death penalty in the case of an abortion performed on a German woman, a special decree of 5 April 1943 legalized abortion on demand in the occupied lands (including Poland) (Kuźma-Markowska, 2011). The law was annulled after World War II.

After the communist takeover, a special order from the Ministry of Health, and the Law on the Profession of the Doctor, introduced a stricter procedure for confirming health problems as the basis for legal abortion. ⁴ Finally, further liberalization of terminations took place in 1956, when women were allowed to demand abortion on the grounds of ‘exceptionally difficult life conditions’. ⁵ Although it was up to the woman to assess her life conditions, the law was, in fact, aimed at improving the situation of mothers with children in families where additional children would mean unbearable costs and a decreased quality of care (Fidelis, 2010). During the later period of state socialism, this official position of the regime remained stable.

The practice of legal abortion continued to be criticized by the Catholic Church. The change in language and the framing of abortion as infanticide became stronger from the mid-1980s as part of a campaign organized both by the Catholic Church and the Catholic organizations. As mentioned previously, especially during the 1980s, the Church provided organizational support for early meetings of the ‘pro-life’ movement; the first ‘crusade of prayers for unborn children’ was organized in churches in 1980 (Ślipko, Starowiejski et.al, 2010). Catholic priests advocated a more restrictive abortion law in their churches, with ‘pro-life’ activists organizing exhibitions featuring photographs of terminated foetuses, as well as screenings of the video ‘Silent Scream’ (Heinen and Portret, 2010).

As 1989 is often presented as the moment of regaining independence, reversing the abortion law from 1956 became one of the most important issues for the Church. Framing the issue of abortion, as ‘killing unborn children’ remained an idea with popular support in Poland and a window for changing the law on abortion opened after the collapse of the communist regime in 1989 (BSE, 1996). Since the Church was perceived as an important actor in the opposition movement, Church officials participated in the Round Table talks between the Solidarity movement’s representatives and experts on one side, and the state-socialist government on the other, from February to April 1989. As a result of these talks, the first, semi-free elections (with seats reserved for the regime party) took place in June 1989. The new, post-Solidarity parties formed a government under Prime Minister Tadeusz Mazowiecki, a leader of one of the Catholic secular organizations – The Catholic Intelligentsia Club (although this group was not focused on the abortion issue). The profile of this government, and the later Solidarity governments, was conservative, with a traditional vision of the role of women within the family and society (Titkow, 1995). The government’s highest officials appeared in churches during religious events, while media often showed Catholic priests and bishops present at official state events (Chałubiński, 1994).

At the same time, the Church was continuing its campaign to change the language used regarding the termination of pregnancy and developing discourse surrounding the unborn (and killed) child. As early as the Round Table talks in March 1989, deputies from the Polish Catholic and Social Union within Parliament (still before the elections) proposed a new draft restricting the right to abortion. Representatives of the Polish Episcopate directly participated in the Parliamentary group preparing the draft. Nevertheless, it was not adopted.

After the elections in June 1989, the issue of criminalizing abortion became a priority in the political arena. The first legal initiatives came from outside Parliament and were introduced by the Minister of Health and Social Assistance. Another important actor supporting the draft was the Supreme Chamber of Medicine (Naczelna Izba Lekarska). The Chamber’s head, Tadeusz L. Chruściel, had previously presided over the Catholic Association of the Polish Doctors. A Ministerial Executive Order of 1990 introduced a stricter procedure for the legal termination of pregnancy in Poland. As a result, a woman was allowed to seek a legal abortion only following consultation with three independent medical doctors and a psychologist. ⁶ Furthermore, the Executive Act explicitly allowed the doctor to refuse to perform an abortion, thereby introducing the solution known as the ‘conscience clause’ (Chełstowska, 2009). This regulation was regarded as inconsistent with the Act of 1956 (then still in force), which only allowed the Minister of Health to lay down specific regulations and conditions for the legal termination of pregnancy, but not the conditions under which a doctor could refuse to perform an abortion. For these reasons, the Ombudsman decided to challenge the Ministerial Executive Act by referring it to the Constitutional Tribunal. The Tribunal found the Ministerial Act not to be inconsistent with the Act of 1956, and upheld the conscience clause, pointing to the constitutional provision safeguarding ‘freedom of conscience’. ⁷

Finally, in December 1991, the Supreme Chamber of Medicine adopted the ‘Code of Medical Ethics’ which allowed abortion only on medical grounds or if the pregnancy was the result of a crime. ⁸ The conscience clause was enforced and extended to cases of in vitro fertilization (Nowicka, 1996). Again, many lawyers and practitioners pointed to the fact that the Code’s regulations were inconsistent with the Act of 1956, which grants a woman the right to legal abortion in the event of severe foetal malformation or when it is requested by a woman in difficult life conditions. The Ombudsman challenged the Code’s new regulations, but the Constitutional Tribunal did not regard the objection as valid, because the Tribunal did not find itself in a position to judge the moral norms. Importantly, the Tribunal decided that doctors who performed abortions on the basis of the 1956 Act should not be held criminally liable. At the same time, though, in the decision from 1992 and in the judgement from 1993, ⁹ the Tribunal stated that the 1956 Act then in force pertained only to the very particular conditions for permitting abortion, but never placed an explicit obligation on the doctor to actually perform an abortion (a similar lacuna is discussed by Murray, in this volume, commenting on abortion law in Ireland following the enactment of the 2013 Protection of Life during Pregnancy Act). In other words, the Ministry of Health’s Executive Act and the regulations of the Code of Medical Ethics both introduced and enhanced the conscience clause and influenced the further de-legalization of abortion. While this was unchallenged by the Constitutional Tribunal, the Tribunal also stated that doctors who perform abortions should not be prosecuted. It would be later, in 1997, when the Tribunal took a definite stance on the protection of ‘unborn life’.

In the meantime, as these ‘back door’ changes were being made to the existing law, conservative parties and Church officials were working to introduce an outright ban on abortion. In 1989, members of the Episcopate had helped draft a bill that sought to introduce a ban on abortion, but the proposal was unsuccessful. Entitled the ‘Unborn Child Protection Bill’ it included regulations to guarantee ‘a child’s legal capacity from the moment of conception’ and to protect a child’s health by punishing the parents and especially the mother if she ‘makes an attempt on her child’s life’ (Powiernik Rodzin, 1989).

An indirect but clear and visible political channel of the Church’s influence was the organization’s explicit support for the Christian Democratic Union political party following the 1991 Parliamentary election. The Head of the Polish Episcopate, Józef Glemp, directly contacted the leader of the party. One of the most remarkable of Glemp’s interventions was to suggest voting in favour of the draft law on mass media that included a passage on ‘respecting Christian values’ (Chałubiński, 1994). In 1991, the Christian National Union political party proposed a Bill punishing both the doctor and the pregnant woman for any act of abortion, except where the woman’s life was at risk (Nowicka, 1996). The Bill was rejected by Parliament. Two less restrictive drafts were also proposed, one of which called for a national referendum before further legislative change was introduced.

On the other side of the debate, most of the left, the post-communist parties and the newly formed women’s organizations, such as the association ‘Pro Femina’ and the Polish Feminist Association, were playing a major role in campaigns defending the right to legal abortion. Under the label ‘Movement Against Criminalizing the Termination of Pregnancy’, the organizations organized street protests, but more importantly they collected 1.2 million signatures in support of a woman’s right to termination (Graff, 2003: 23). While discussions were still taking place in Parliament, it became clear that a referendum would not be held (Chełstowska, 2009). The head of the Parliamentary Club of the Christian National Union, Stefan Niesiołowski, justified the lack of support for the referendum suggesting that the:

referendum should not decide on what is right or wrong. Moral values have an objective significance, independent of changing subjective human judgements. The majority might be wrong. For example Germans voted for Hitler. (Stefan Niesiołowski, MP, during a parliamentary debate 18–19 January 1993, as quoted by Chałubiński, 1994: 141)

In 1993, new legislation was finally adopted, without a referendum. The Act of 1993, still in effect today, severely restricted the criteria for legal abortion. In particular, according to Article 4a of the new law, termination of pregnancy became possible only in three specific situations:

if the pregnancy constitutes a threat to the life or health of the mother;

These circumstances need to be confirmed by a doctor other than the one conducting the abortion and by a prosecutor in cases where pregnancy results from a criminal act. In the case of the first two situations, the abortion must be conducted in a hospital (Article 4a, para 3) and in a public hospital for those women who are insured (and only without additional costs). If pregnancy is the result of a criminal act, the time limit for performing the abortion is 12 weeks (Article 4a, para 2). If the reason for terminating the pregnancy is serious foetal malformation, then the time limit is defined as the moment when the foetus can survive outside of the woman’s body. Performing an illegal abortion is a criminal offence subject to a fine and/or 10 years imprisonment. No fixed time limit is specified apart from the above-mentioned criterion of Article 149 section 3 (that the foetus is able to survive outside of the woman’s body). It is usually understood that the cut-off date for performing a termination in such cases is between 22 and 24 weeks, depending on the hospital. Hospitals that establish the cut-off point at 24 weeks often refer to the Judgement of the Supreme Court of 13 October 2005 in the case of Wojnarowscy v Cardinal Wyszyński Hospital in Łomża (no IV CK 161/05), a ‘wrongful birth case’. In that case, a mother of a child with a very serious genetic condition got pregnant again was denied antenatal genetic screening, and an ultrasound screening did not show enough information on the foetus’ condition. As a result, with no adequate diagnosis, the woman had to give birth to a child that turned out to have the same condition as her first child. While the hospital claimed that there was no point in conducting any further medical tests after the 20th week of pregnancy, the medical experts’ opinions, taken into account by the Supreme Court, pointed to the fact that it was in any case impossible to diagnose the foetus’ condition before the 24th week of pregnancy.

The change in language, initiated by the Church and other Catholic organizations, proved successful in legal terms. Implementing the legal provisions of the Act of 1993, the Civil Code (Article 8, para 2) ¹¹ and the Criminal Code (Articles 23b and 149; 156 and 157) started to use new terminology, such as ‘conceived child’, while ‘pregnant woman’ was replaced by ‘mother of the conceived child’ (Article 149b of the Criminal Code) (Nowicka, 1996). The language of ‘unborn’ or ‘conceived’ child (and not foetus) was a clear reference to the draft law presented by the Church officials to Parliament in 1989. Furthermore, the Act of 1993 also amended the Civil Code to include the conditional/partial legal capacity of the foetus as a conceived child (Article 8, para 2) who is also entitled to ‘claim redress for any damages suffered before birth’ (Article 446). ¹² Finally, Article 2 of the Act of 1993 obliged the Government, as well as local governments, to guarantee access to information on prenatal examination and methods of family planning. Shortly after the Lower House of Parliament adopted the law, all Senators (in the Upper House) received a letter from the Abbot of Częstochowa (the most important pilgrimage destination in Poland) suggesting that the Senators should vote in favour of the protection of conceived life, while the Catholic magazine ‘Niedziela’ (‘Sunday’) published an interview with one of the key bishops entitled: ‘Now the Senate is passing a humanity exam’ (Chałubiński, 1994). The Senate confirmed the adoption of the draft.

After parliamentary elections in the autumn of 1993, the right-wing coalition was replaced by a coalition made up of the post-communist left-wing party (the Alliance of the Democratic Left – SLD) and the agrarian party (the Polish Peasant Party – PSL). The opposition mostly included right-wing, post-Solidarity parties. Importantly, before the election, the Christian National Union together with several other post-Solidarity parties formed a coalition – The Catholic Election Committee ‘Homeland’ – with the direct involvement of bishop Tadeusz Gocłowski. However, the coalition did not reach the threshold of 8% of the vote necessary to get seats in Parliament.

From the outset, there were initiatives to liberalize legislation on abortion. The most successful of which was in 1996, when Parliament adopted an amendment to the 1993 Act adding a fourth criterion to qualify for a legal abortion, namely difficult life conditions or economic hardship (therefore reverting to the situation pre-1993). ¹³

The Church reacted strongly against the amendment describing it as ‘not only anti-Christian, but anti-Polish and inhumane as well’ (Zielińska, 2000: 34). The period between the autumn of 1996 and May 1997 was marked by a series of street protests and public prayers in front of clinics, where abortion was performed (called ‘abortion clinics’), marches and open letters, organized by a coalition of ‘pro-life’ organizations, most remarkably the Polish Association of Defenders of Life, with the cooperation of Church officials. A radio station called ‘Radio Maryja’ gained enormous popularity, with its important director priest Tadeusz Rydzyk becoming a new spiritual leader. Once again, Church officials deployed the Holocaust comparison, referring to the eugenics policies of the Nazi regime during World War II. One bishop gave a sermon stating that:

Liberalising abortion law was similar to Doctor Wetzel’s program authorized by the Nazis on the 27th of April 1942 in Berlin. News about the program was published in 1958 [referring to Auschwitz Studies, author’s remark]. It was a program of killing the Polish nation. (Bishop E. Frankowski, 25 March 1996, Warsaw)

The line of argumentation expressed by Church officials was mirrored by the debate in Parliament. Kramer (2009) has analysed the debate on the 1996 amendment and found that the most common reference point was the Polish nation and its history. In particular, MPs from conservative parties pointed to Poland’s recent past, marked by tragic historical events, and to the need to distance the newly independent Polish state from this history. At the same time, a vision of the future growth of the nation without the right to (or need for) abortion was presented. A group of senators from the conservative party (mostly a post-Solidarity movement party) challenged the 1996 amendment and, as a result, it was found to be unconstitutional (and therefore illegal) by the Constitutional Tribunal in its judgement of 28 May 1997. ¹⁴ The most important basis for rejecting the ‘difficult life’ condition was the constitutional ‘right to life’ of a citizen and the protection of life in all circumstances. According to the Tribunal, the liberalization of anti-abortion legislation ‘was conducted without sufficient justification for the protection of other values, rights or constitutional freedoms’ while ‘the liberalisation was based on unclear criteria, and thus violated the constitutional guarantees of human life’ (para 2). The official judgement of the Tribunal also uses the phrase ‘a conceived child’ and his/her right to ‘protection and undisturbed development’ (para 6). Thus, even though the Constitution does not include explicit protection of a foetus/embryo (or life ‘from the moment of conception’), the Tribunal extended the general protection of life to the human embryo, although, for example, Article 8, para 2, of the Civil Code granting the foetus a legal capacity, was not returned. The judgement was issued one week before the visit of Pope John Paul II to Poland (31 May 1997 to 5 June 1997), which would not appear to be a coincidence (Chełstowska, 2009). Although there is no evidence of direct pressure being applied to the Tribunal’s members, they were required to make the decision under the pressure of the upcoming Pope’s visit. The judges were faced with a battle that already appeared to have been lost over the linguistic and moral realm, with the nationalist rhetoric and the parallel between genocide and abortion, winning support with the help of the powerful media outlet Radio Maryja.

The conscience clause was strengthened as well. As noted earlier, the Code of Medical Ethics had introduced the clause in 1991, at that time unchallenged and supported by judgements from the Constitutional Tribunal in 1992 and 1993. The clause was eventually also enacted in the Medical Profession Act of 1996. ¹⁵ According to Article 39 of the Act, a doctor has the right to refuse any medical treatment or procedure that is inconsistent with his/her conscience. However, at the same time, the doctor is obliged to direct the woman (the patient) to another doctor or another clinic, and this referral should be noted in the medical documentation of the case. The clause applies, among other situations, to cases where abortion is legal (under the three above-mentioned circumstances) and also to invasive prenatal tests.

Following the strengthening of the conscience clause and the Constitutional Court’s judgement of 1997, which rejected the liberalizing amendment, the de-legalization of abortion gained momentum. In the autumn of 1997, the left-wing coalition lost the election and the right-wing parties came to power. The government was composed of a post-Solidarity movement political party and a more centrist party, Union of Freedom. The Minister of Health introduced minor changes to provide for stricter procedures to justify the termination of a pregnancy in the circumstances permitted since 1997 (a criminal act, serious foetal malformation, danger to the woman’s health). For example, it became necessary to secure the opinion of a medical professional specializing in the field relevant to the particular woman’s medical condition (Caytas, 2013). Since then no major changes have been introduced, although Church officials and ‘pro-life’ activists continue to call for an outright ban on abortion.

Interestingly, even though the political composition of the ruling government has altered several times since 1997 (the year of the most recent changes to the abortion law), the Act of 1993 has remained unchanged. During the left-wing coalition SLD-Unia Pracy (UP), Union of Labour government (2001 to 2005), Poland was in the process of accession to the European Union (EU). As pointed out by Agnieszka Graff (2003), at the beginning of the 2000s, opinion polls showed a moderate decrease in popular support for a woman’s right to opt for an abortion from 65% in 1997 to 54% in 2002 (CBOS, 2010). Simultaneously, the women’s organizations’ coalition, ‘Association of Women of the 8th of March’, was active in its fight for the right to legal abortion. In February 2002, they issued an open letter to the European Parliament that was signed by the most influential female entrepreneurs, actors and writers, including the Nobel Prize winner Wisława Szymborska and the film director Agnieszka Holland, entitled ‘100 Women’s Letter’. The open letter stated that:

A peculiar agreement has been reached by the Catholic Church and the government concerning Poland’s admission into the European Union. Namely, the Church will support integration with Europe in return for the government’s closing the debate on the revision of the anti-abortion law. (…) This is accompanied by a characteristically biased way of speaking. Protection of unborn life is treated as an objective dogma, while abortion on social grounds is spoken of in quotation marks and treated as an ‘ideological’ claim made by feminists, who attempt to legalize murder. (excerpt from ‘100 Women’s Letter’, as quoted by Graff 2003: 110)

Paradoxically, while these pro-choice women’s organizations did not challenge EU accession, it was generally recognized that the Government needed the support of the Catholic Church to secure popular assent (Caytas, 2013; Heinen and Portet, 2009), as accession was preceded by a national referendum as a legally binding condition for EU entry. The symbolic power of the Church’s influence was also apparent even after Poland joined the EU – but before the elections of 2004. Thus, Parliament adopted a bill establishing the ‘National Day of Life Protection’ in August 2004, in accordance with the Pope’s recommendation included in his encyclical ‘Evangelium Vita’.

To sum up, the Church used all of the three channels of influence as listed by Jones (2011):

evidence and advice, when using the evidence-based argumentation for introducing the language of conceived or unborn child (conception as the beginning of human life);

The former centre-right coalition of Civic Platform (PO) and the PSL that held the office between 2007 and 2015 was more interested in maintaining the status quo as far as abortion law is concerned. However, the parliamentary elections of 2015 changed the situation in favour of Law and Justice (PiS), which is openly supported by the Catholic Church and promoted by the Catholic media. In other words, the near future might well result in an even stronger radicalization of discourse on women’s reproductive rights and the introduction of an absolute ban on abortion.

Implementation: The Facts on Abortion in Poland and Case Law

The activities of the Church designed to directly or indirectly affect women’s reproductive rights in Poland are not restricted to having an impact on legal provisions but also extend to the implementation of the law by direct interventions in cases where abortion should be available according to the three circumstances stated in the law. Its strategies included pressure on the national judicial authorities, direct personal pressure on women awaiting decisions about terminating their pregnancies and attempts at influencing public opinion. Popular support for the existing law is quite stable – 49% of Poles are in favour of keeping the current legislation, while 34% favour liberalization (CBOS, 2012). At the same time, the percentage of respondents who would support terminating pregnancy on the grounds of one’s difficult life situation decreased from 47% in 1992 to 13% in 2011 (CBOS, 2012). Another survey of Polish women under 65 revealed that at least one in four had had at least one pregnancy terminated during their lifetime (CBOS, 2013).

At the same time, the Church often denies the real magnitude of the ‘abortion underground’, often presenting the official statistics on the number of legal abortions and interpreting the steep decline of abortions after 1993 as indicative of the success of the new law, while still finding the small numbers of abortions regrettable (Ślipko, Starowiejski et.al, 2010). Thus, although about 150,000–200,000 abortions per year were officially performed until 1993, the numbers went down to several hundred afterwards (with the exception of 1997, when the law was liberalized and 3173 abortions were recorded). Since the early 2000s, however, official statistics show a small, though constantly increasing, number of legal abortions being performed each year, from 153 terminations in 2002 to 972 in 2014 (Government Report on the Implementation of Family Planning, Protection of the Human Embryo and Conditions of Termination of Pregnancy Act of 7 January 1993, for the year 2012).

As emphasized by feminist NGOs, doctors often perform terminations unofficially (Nowicka, 2007). The number of illegal procedures or pharmacological interventions has been estimated at 80,000–190,000 per year (Grzywacz et al., 2013). Owing to the high cost, illegal abortion either inside Poland or abroad (the latter phenomenon is often termed ‘abortion tourism’) is available only to those women who can afford it. The average price for unofficial treatment is about 450 euros, which is about 90% of the average net salary in 2013 (Święchowicz, 2014). Therefore, poorer women choose more hazardous means to terminate a pregnancy. As well, there are instances of concealing or abandoning new-born infants just after birth, mainly by women in very difficult economic situations, with many children already in their family (Luciński, 2007).

The impetus for legislative changes or more effective enforcement of the law is now coming from the ECtHR. However, this litigation strategy was as a result of support offered by the Polish Federation for Women and Family Planning and the Helsinki Foundation of Human Rights. These groups provided legal and financial resources for those women who decided to bring their cases to the ECtHR. The use of an external legal authority as a mechanism to achieve law reform within Poland is a new approach. For the Federation for Women and Family Planning (but also ‘Ośka’, KARAT, NEWW, ‘Feminoteka’), such ‘strategic litigation’ represented the so-called ‘last resort’, but turned out to be very effective (Fuchs, 2013). The ECtHR’s judgements and the litigation cases monitored by feminist organizations confirm that doctors are afraid to perform abortions, even where abortion is lawful, and relevant facts are not disputed. Catholic Church officials and the Catholic media repeatedly encourage doctors to use the conscience clause as an excuse to refuse to terminate a pregnancy and blacklist those who agree to perform (legal) abortions or antenatal screening. Another strategy applied by doctors is to delay examinations, and the decision to terminate, until it is too late.

This is exactly what happened in one of the most prominent cases brought against Poland – the case of Alicja Tysiąc, brought to the ECtHR in 2003. The applicant suffered from very serious myopia and damage to her retinas from childhood. In 2000, already with two children, Tysiąc became pregnant. In spite of confirmation that the birth might lead to detachment of a retina and the rupture of her uterus, and even though Tysiąc’s eyesight was already getting worse during the second month of her pregnancy, her gynaecologist and an endocrinologist co-signed a document stating that her condition was not sufficient grounds to justify a therapeutic abortion (Priaulx, 2008). In November, Tysiąc gave birth to her third child and subsequently suffered deterioration of her vision such that a panel of specialist doctors recommended that she receive constant care as a disabled person.

Following these developments, Tysiąc, represented by a lawyer provided by the Polish Federation for Women and Family Planning and the Helsinki Foundation of Human Rights in Warsaw, brought a case against Poland to the ECtHR on the grounds of a possible violation of several articles of the European Convention for Human Rights. In particular, the application cited Article 3, the prohibition of torture, inhuman or degrading treatment or punishment; Article 8 which guarantees the ‘right to respect for private and family life’; as well as Article 13 (the right to effective remedy); and Article 14 (the prohibition of discrimination), in this case referring to Tysiąc’s disability and sex.

In March 2007, the ECtHR issued a judgement upholding the applicant’s legal complaints regarding the violation of her Article 8 rights. The focus of the Court’s judgement was procedural deficiencies in the process of obtaining the right to a legal abortion in Poland, not the legal right to abortion as such. In particular, the Court pointed to the lack of an adequate procedure for resolving disputes when seeking legal abortion. The court suggested that the Polish government set up an independent authority to verify the doctors’ decisions if the woman requested it, giving her the right to express her own opinion in the appeal process. In addition, this procedure was to be expedited as quickly as possible to prevent further deterioration of women’s health. The court awarded Alicja Tysiąc compensation of 25,000 euros plus 14,000 euros costs. The Polish government appealed, but the decision was upheld. With regard to the new procedures, the government decided to refer disputes over the conditions for justified abortions to the Commissioner for Patients’ Rights, a new authority established in 2009. ¹⁶

This case had many implications, both for legislation and the implementation of the law, and indeed also for discourse on abortion in Poland, which included prominent attacks from the Catholic media on the Court’s judgement. For example, the main editor of the biggest weekly magazine in Poland, ‘Gość Niedzielny’ (‘Sunday Guest’), compared the judges who issued the decision in Tysiąc’s favour to the German Nazi officers who worked at Auschwitz, pointing out that the judges awarded Tysiąc compensation despite the fact that ‘she wanted to kill her own child’ (Gancarczyk, 2007). In this way, the general framing idea of comparing abortion to genocide, often used by the Church for influencing the law, was applied to a concrete case.

The parallel with the genocide of Auschwitz was also made in another article that appeared in the magazine, entitled ‘Krótkowzroczność Alicji’ (‘The Shortsightedness of Alicja’) (Kucharczak, 2007). The author quoted a ‘pro-life’ activist’s opinion on Tysiąc being paid compensation by the Polish State: ‘just like Jews used to be bought out of the ghetto, now (…) we have to buy out unborn children to save their lives’ (Kucharczak, 2007). The suggestion that Tysiąc received financial compensation for planning ‘to kill her own child’ appeared several times in ‘Gość Niedzielny’. Tysiąc decided to sue the weekly magazine for infringing her personal rights. Although Tysiąc and the magazine eventually reached an out-of-court settlement and damages were paid, she never received an official apology. Moreover, the Catholic media continued their attacks on Tysiąc. Tomasz Terlikowski, the editor in chief of one of the right-wing pro-Catholic media outlets in Poland compared Alicja Tysiąc to Albert Eichmann in a book he co-authored with Joanna Najfeld (Najfeld and Terlikowski, 2008). Tysiąc sued and the editor was obliged to issue an official apology.

The case of P. and S. v Poland is less well known but is equally important to understanding how the Catholic Church and ‘pro-life’ activists have directly influenced the eventual implementation of the existing legal framework with regard to abortion in Poland. The case against Poland concerned procedural deficiencies in the process of applying for and obtaining a legal abortion in circumstances where the pregnancy was the result of a criminal act. ¹⁷

In 2008, a 14-year-old girl was raped by her schoolmate and she reported the rape to the local police. She subsequently discovered that she was pregnant as a result of this rape. After testifying at the Family District Court, the girl and her mother (as she was a minor) received a certificate issued by the District Prosecutor that the pregnancy was the result of a criminal act: here, intercourse with a minor less than 15 years of age. The certificate ought to have been sufficient to obtain a legal abortion at a public hospital, but the girl was asked to provide an additional certificate. The girl was admitted to another hospital, where, after 1 week, her mother was advised that she should ‘get her daughter a husband’ and further that she should sign a declaration stating: ‘I agree to the procedure of abortion and I understand that this procedure could lead to my daughter’s death’. While the girl’s mother was at work, a Catholic priest, the director of the House for Single Mothers in Lublin, came to the hospital and tried to persuade the girl to continue her pregnancy. ¹⁸ The girl, without any parent present, trying to be polite and not to offend the doctor and the priest, signed a document stating that she did not wish to have an abortion but had been ‘coerced’ into the decision by her mother. However, the girl subsequently denied having agreed to this statement. Another direct intervention by the priest came in a complaint that he made against the girls’ parents to the Lublin Family Court, on the basis of which the parental rights of the mother and father were temporarily restricted. Still pregnant, the girl was taken to a juvenile shelter, but when she felt unwell and her parents again asked for an abortion, the director of another hospital refused, justifying his decision on the basis that ‘ethics remain above the law’. ¹⁹ Finally, the Ministry of Health contacted her directly, granting her permission for an abortion, but it turned out it would have to take place in Gdańsk, more than 500 kilometres from her home.

The pregnancy was finally terminated but information about the procedure was leaked and the media, especially those connected to Catholic circles, were very critical of the mother, the Government and the hospital that had performed the abortion. In 2008, the girl’s parents decided to submit a complaint to the ECtHR with the support of various women’s organizations and the Helsinki Foundation for Human Rights. The case had many features in common with Alicja Tysiąc’s (by then successful) case and was based on mostly the same articles of the Convention (Article 3, Article 5 and Article 8). The ECtHR’s decision, issued in 2012 (finalized in 2013), found there was violation of all the articles listed in the claim (on at least one count). In particular, the ECtHR found that the girl ‘was treated by the authorities in a deplorable manner’. ²⁰ The girl and her mother were awarded monetary compensation of 30,000 euros and 15,000 euros respectively, plus 16,000 euros in costs and expenses.

In short, although the case was heard several years after the Tysiąc case, the rights violations, and the Court’s conclusions, covered similar ground, namely the unclear and ineffective procedures in place concerning the operation of the conscience clause. The Court’s judgement was first of all directed at the state administration’s incapability to deal with the case appropriately, which led to unnecessary suffering for the young girl and her family. This case also reveals the extent to which the Catholic Church and ‘pro-life’ activists, using legal loopholes and illegal strategies, were able to influence both medical practice and to gain access to a vulnerable child seeking medical assistance.

Summary and conclusions

The sources of the powerful position of the Catholic Church are deeply rooted in the Polish history. During state socialism, the Church provided various kinds of resources for the activities of the opposition movement. After 1989, the Church’s officials successfully positioned themselves as the defender of the Polish national identity and liberators, hijacking the public discourse on family and gender relations. Several symbolic parallels were in use, especially in the 1990s. One of them pictured the contemporary battle of the Church over the protection of the Polish family as similar to the Church’s past efforts to free the Poles from the state-socialist regime. Another parallel presented abortion as infanticide (another variety of genocide). The Church’s officials referred to the Nazi politics that constrained the biological reproduction of the nations under occupations, including the Poles, while placing themselves as repositories of nationhood and protectors against the outer, immoral influence.

The post-1989 developments with regard to abortion law in Poland demonstrate the influence of a very powerful societal actor on the drafting and implementation of one of the most important policies affecting women’s rights. Various channels and forms of influencing activities were underpinned by the main discourse, which treats abortion as infanticide. It also exerted a more direct influence on law, with Church officials and ‘pro-life’ organizations producing evidence concerning the ‘beginning of human life from conception’, as well as conducting public campaigning with the use of media such as Radio Maryja, in order to consolidate their protests and by issuing pastoral letters calling for legal reform. Furthermore, the Church has tried to lobby and negotiate the final legal changes, such as when in 1989 representatives of the Episcopate participated in a Parliamentary group drafting an anti-abortion law or by making multiple interventions in Parliament (sending personal letters to MPs and senators).

Perhaps the Church’s strongest influence was not on concrete decisions in the political realm, but its victory in effecting a shift in the discourse and in official legal language. For example, the word ‘foetus’ was replaced by the term ‘conceived child’ (in the law) or by ‘unborb child’ (in public discourse). Various ‘faces’ of this discourse included the interpretation of abortion in terms of a modern version of genocide or ‘holocaust’ and linking it to the (demographic) future of the Polish nation, pointing to alleged ‘post-abortion’ syndrome and the general use of evidence stressing the beginning of human life to be from the moment of conception.

While the Church’s moral victory helped to introduce a restrictive abortion law, case law has documented serious problems with the implementation of already strict abortion legislation in Poland. For example, in P. and S. v Poland, a Catholic priest tried to persuade a young pregnant girl by force not to have an abortion; pressure was put on physicians and they were blacklisted for performing (legal) abortions or conducting antenatal screening; and because of the law’s lack of a fixed deadline for abortion (24 weeks comes from case law only), doctors are afraid of the legal consequences of opting for an abortion. In general, pregnant women whose pregnancies, for different reasons, qualify for legal termination, have difficulties in exercising their basic rights. One of the most profound legal barriers to a woman exercising her rights regarding problematic pregnancies is the conscience clause and the unclear regulations about when, how and under what conditions physicians are entitled to use it.

The competing discourse provided by the feminist organizations – mostly about treating reproductive rights as human rights – did not attract strong public support. Thus, strategic litigation might be one of the most successful ways of improving the reproductive rights of women in Poland. Another body that so far has only been partially effective is the Commissioner for Patients’ Rights, who intervened in the case of the violation of the rights of a woman whose foetus had serious dysfunctions when her physician refused to perform her abortion and also to refer her to another clinic. When the case was in the media spotlight, a survey among Poles revealed that the general public did not approve of the conscience clause. According to 52% of respondents, a physician ought not to refuse to perform an abortion when the conditions for legal abortion are met (CBOS, 2014). The results of this survey are far from signalling any shift in public support for the existing law on abortion, and the doctor in question has become a hero and a martyr for ‘pro-life’ activists.

For a long time, it seemed that the existing abortion legislation was unlikely to change, especially after renewed attempts by ‘pro-life’ organizations aligned with the Church that together collected signatures regarding the draft civil law introducing even stricter abortion rules, but none of these drafts made it through Parliament. However, the centre-right coalition PO-PSL that was in power for two terms in office (2007–2015) lost the election on 25 October 2015. The conservative right-wing party PiS won over 38% of the vote and, holding majority in the parliament, PiS formed the government without even needing a coalition partner. At the same time, the Presidential Office is occupied by a PiS candidate who won the election in May 2015. All the PiS MPs voted in favour of Parliament proceeding with the very recently submitted draft introducing a ban on abortion in the case of rape or serious diseases of the foetus. During the Parliamentary debate, a PiS MP called Kaja Godek argued in favour of the new abortion ban, ‘with the existing law (…) Poland is doing worse than totalitarian regimes, because at least in Auschwitz-Birkenau the prisoners were assigned numbers (…) [the present abortion law] makes Poland even worse than Nazi Germany’ (Parliamentary debate on 11 September 2015). So far the government has not initiated any drafts making the access to legal abortion even stricter. In fact, some of the prominent members of PiS publicly declared that introducing an absolute ban on abortion would not be socially acceptable (Jacek Sasin, high rank PiS politician, radio station appearance on 6 October 2015). Clearly, there are fractions within the party. However, if the conservative fraction wins over, Holocaust parallel and the Church's indirect or even direct influence on reproductive rights in Poland might enter a new stage, with even more severe consequences for women's autonomy.