“We could go to prison for an abortion”: Poland’s abortion ruling hits women and doctors

Anna Gmiterek-Zabłocka (Radio TOK FM)

For several months, women in Poland have not been able to obtain a legal abortion in cases where prenatal tests show that the foetus is damaged and will not be born live or will die soon after birth. Such terminations previously made up almost all legal abortions. We spoke to women affected by this change.

On 22 October 2020, the Constitutional Tribunal issued a ruling stating that the abortion law of 1993, permitting terminations when tests showed the likelihood of a severe and irreversible impairment of the foetus or an incurable illness threatening its life, was unconstitutional.

The judges who made this decision were not unanimous, and some argued that women cannot be forced into heroism. However, the decision was made by the majority, including two judges who before being appointed to the tribunal were MPs for the ruling conservative party.

At present, abortion in Poland is permissible only for two reasons: when it constitutes a threat to the woman’s life or health, or when the pregnancy results from a crime such as rape. Women who learn that they are carrying a seriously damaged foetus have no chance of legal termination.

The tribunal’s ruling led to a wave of protests in Poland. Thousands of Poles, mostly women, took to the streets despite the pandemic and restrictions for many days to air their opposition to the government’s actions. Banners that could be seen at the protests included the slogans “Women’s hell” and “This is war”.

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Kasia (the names of interviewees have been changed) learned that she was pregnant after the Constitutional Tribunal’s decision. Her pregnancy was planned and long-awaited.

“Kasia had two miscarriages. When we found out she was pregnant, we jumped for joy,” says Wojciech, her partner. Kasia is 39. The gynaecologist recommended prenatal tests, “just in case”.

“Of course, we didn’t allow ourselves to imagine that something might be wrong. We didn’t even talk about that. Unfortunately, there was,” Wojciech tells us.

The diagnosis was unequivocal – a lethal abnormality. “It was like being given a sentence,” Wojciech says. “The doctor told us that the baby would probably be born dead or would die just after birth. That it wouldn’t be able to see or hear and would probably have a terribly deformed head. A nightmare.”

Both decided to terminate the pregnancy. “We talked about it for a long time. We decided that we didn’t want Kasia to go through this emotional pain for nine months. To live in the knowledge that our child was suffering. And also she’d started to say several times a day that she wouldn’t survive it. I feared for her.”

The gynaecologist told them that there was no chance of an abortion. They went to a psychiatrist because they had read online that some such doctors were able to help. But this one did not. He confirmed the anxiety and suicidal thoughts, but refused to provide a certificate that there were grounds for an abortion on the basis of a threat to the mother’s health.

“I don’t want to give details, but our only option was to go abroad,” says Wojciech.

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Among those protesting against the Constitutional Tribunal’s ruling prohibiting abortion in the case of lethal defects to the foetus were mothers raising disabled children. A common complaint was that the state wants to protect life from conception, yet does not give adequate support after birth.

“When the Constitutional Tribunal issued its ruling on abortion, disabled people were in the spotlight,” wrote one such mother in a Facebook post. “The media were going crazy, politicians were shouting over each other promising help and support. And now? Now reality has set in again.”

Poland’s human rights commissioner Adam Bodnar, meanwhile, noted that the Constitutional Tribunal ruling meant that the state had decided to “strip women of the right to decide for themselves and often condemned them to torture.” According to Bodnar, the tribunal’s decision almost entirely ignored the rights of women and their families.

“They were denied the right to decide, for example, whether to give birth to a baby that would die in suffering after a few days. The main burden of choice and responsibility is shifted to medical personnel – doctors, but also the hospital and nurses, without assuring them appropriate legal protection,” Bodnar wrote.

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The Federation for Women and Family Planning currently gets up to several dozen telephone calls and emails a day asking about abortion. Some women who call are pregnant and have received an unwanted diagnosis, but others call the federation to seek help as they are planning to have a baby and want to know what will happen if it turns out that the foetus has a lethal defect.

Krystyna Kacpura, the federation’s director, tells Notes from Poland that the situation is alarming. “The women who call us are unable to talk, they don’t know how to cope. They sob, weep, and often beg, ‘Please help me’.” Sometimes, she says, the women tell her that they won’t survive the pregnancy.

The federation is also inundated with emails from representatives of “pro-life” organisations. It receives threats, invective and hate.

“They threaten us with death,” say representatives of the organisation, which has been helping women for years. “They sent us our photographs placed on a target saying ‘die’. Opponents of choice turn out to be terrorists using criminal threats with no regard to human life and dignity.”

According to Kamila Ferenc, a lawyer from the federation, the results of the chilling effect are already visible – doctors are afraid to make decisions as they are worried about getting a visit from the police or prosecutor:

This chilling effect concerns a reason for abortion that is still in place, danger to the pregnant woman’s life and health. I know several cases of women in danger of a uterine rupture, for example, or at risk of infection to the organism, and nothing happens. Because in Poland today, unless a patient is dying on the table, bleeding out here and now, doctors won’t do anything to minimise the risk of endangering her life or health.

Serious as the situation in Poland is, Ferenc says that it has not yet reached an impasse. There are still some physicians in Poland who understand the women’s situation and try to help them. The hospitals where they work are in large cities, although for safety reasons, their identity is kept secret.

“These hospitals are in the minority,” she explains. “The doctors simply take pity on the patient when their colleagues don’t want to. Some women go to clinics abroad, where they feel safe. That’s how things look at present.”

Gynaecologists have their hands tied. Even when they see the despair of women hearing that they are carrying a foetus with a lethal defect, they cannot refer them for a legal abortion.

“So what if I’d like to help that woman?” says one doctor, who asked to remain anonymous. “What if some of my colleagues agree that the law in Poland today is inhuman and inhumane? We have no influence on that – we know that for carrying out such an abortion we could go to prison. That’s the reality.”

Psychiatrists are also beginning to get involved with helping women, some of whom experience suicidal thoughts, depression and anxiety upon receiving the diagnosis of anencephaly or another lethal defect. In such cases, a psychiatrist may issue a certificate stating that the pregnancy threatens the woman’s life or health – the premise on which termination is still permissible.

Dr Aleksandra Krasowska has had several such patients. But she says that the problem is that most hospitals do not want to honour such certificates.

“It might turn out that we soon have women appearing in psychiatric offices with post-traumatic stress and other serious symptoms,” she warns. “Furthermore, it seems to be a realistic scenario that sooner or later one of these women will die as the result of suicide. We can’t allow that to happen.”

According to Kamila Ferenc, the help of psychiatrists could be a solution, but not on a large scale.

“I think that if it were to be a systemic rule and all patients who previously qualified for an abortion for embryopathological reasons were supposed to have a certificate from a psychiatrist, that would be stopped in the end,” she says. “Let’s not fool ourselves – in Poland everything is done to make sure there is officially no abortion.”

For now, law enforcement authorities have a weapon in the battle with doctors and have already taken up the fight. The district prosecutor in Białystok asked the local hospital for medical documentation of all patients who had their pregnancies terminated after the Constitutional Tribunal ruling was issued but before its publication on 27 January 2021, which brought it into force.

“The prosecutor’s office demanded the documents without indicating that there was any probability of a prohibited act being committed,” says Ferenc. “They wanted to examine the case in general, but also find out patients’ names. It seemed like doing everything possible to dig up some dirt.”

In the end, after the affair came out in the media, the national prosecutor’s office found the Białystok authorities’ actions to be incorrect and unjustified. Since the tribunal’s adjudication applies from the day of its publication, not its issue, data on procedures carried out in the meantime may not be collected.

“Fortunately, these proceedings were discontinued,” says Ferenc. “But we must note the officiousness of the prosecutor’s office, which showed unequivocally which side it is on and what is really happening.”

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In the months since the Constitutional Tribunal ruling, Poland has been flooded with billboards from pro-life organisations, with images including a foetus in its mother’s womb and the word “life” written in various languages, or a foetus’s foot with the legend “I am 11 weeks old”. The organiser of the campaign is the foundation “Our Children – Education, Health, Faith”.

According to estimates by Media People based on data from Kantar Media, the cost of the campaign could be as much as 5.5 million zloty. The media house calculated that the cost of the billboards up to 1 February could have paid for 40,000 hours of psychological help or 1,620 weeks of rehabilitation stays.

And it is not just billboards. The public media presenting the ruling party line are also dominated by the narrative that life should be protected from conception and abortion means killing babies.

In addition, a civic bill entitled “Yes to family – no to gender” has been submitted to parliament by Ordo Iuris, a legal organisation with radical right-wing views campaigning for protection of life from conception. According to many experts, the bill could lead to a complete ban on abortion.

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Alicja had an abortion – fully legally – before the Constitutional Tribunal ruling. She opted to terminate her pregnancy when she learned that the foetus did not have a skull. She remembers this as an extremely traumatic and difficult experience. After the procedure, she was put in a hospital room on her own, but behind the wall she could hear the voices of whimpering new-borns.

“I don’t regret my decision,” she tells us. “I made it together with my husband. It took me a long time to get over it afterwards. My mourning lasted many months.” Today, Alicja understands very well the pain and fear of women who would like to do as she did but cannot.

“Abortion for a woman is usually a harrowing experience. It’s not a procedure where you just leave hospital afterwards as if nothing happened. You think about it non-stop. That’s why I think – I’m certain – that a woman should have the choice whether she wants to do it or not. And politicians should respect that.”

Women in Poland are helped by the Federation for Women and Family Planning, but also other organisations such as Abortion Dream Team and Abortion without Borders. In some cities, billboards have appeared with a telephone number that every woman can call for advice on what to do in a specific situation.

Information published by Abortion Dream Team shows that one in every four pregnancies worldwide – and one in three in Poland – ends in abortion. Most of the women affected are aged between 21 and 34.

The vast majority of procedures carried out before the Constitutional Tribunal ruling were because of foetal defects. In 2019 in Poland, 1,110 legal abortions took place, of which 1,074 were conducted after prenatal tests confirmed a high probability of severe and irreversible impairment to the foetus. (It is estimated that tens of thousands more illegal abortions take place each year.)

According to article 152 of Poland’s penal code, anyone who terminates a pregnancy with the woman’s consent in violation of the law can be imprisoned for up to three years. If the foetus is capable of independent life outside of the pregnant woman’s body, the penalty may be greater, at up to eight years’ imprisonment.

Translated by Ben Koschalka. Main image credit: Martyna Niecko / Agencja Gazeta

Anna Gmiterek-Zabłocka is a journalist at Radio TOK FM, specialising in social issues including migration, domestic violence, and challenges faced by people with disabilities. She won the Grand Press Award for 2010 among other prizes.