Justyna Wydrzyńska convicted

On 14 March 2023, the polish activist Justyna Wydrzyńska, co-founder of the NGO “Abortion Dream Team” was sentenced in the first instance to 240 hours or 8 months of community service for “abortion assistance”. She was convicted after sending her own abortion pills to a woman who sought help from her organisation to have an abortion. Since the announcement of the Polish court’s verdict, international NGOs¹ and institutions have reacted one after another in support of Justyna Wydrzyńska, and through her to all women. They all warn about the deterrent effect of the Polish legislation. Indeed, people who want to help other women to have an abortion may be deterred in the future, bearing in mind that the maintenance of this right is far from being guaranteed, as shown by its decline in Poland.

Similarly, this decision discourages women from obtaining medical pills, whereas the WHO approves their effectiveness and safety. On 15 March 2023, United Nations experts condemned the Polish decision and demanded the acquittal of Justyna Wydrzyńska². They express concern about the impact of this ban on other countries and situations where abortion remains legal. The UN calls on the Polish government to fully decriminalise abortion in the name of women’s right to health. Access to essential medicines for safe abortions and support for this medical practice is a fundamental right.

This trial illustrates the situation in Poland, almost two years after the constitutional amendment repressing the right to abortion. Since then, parallel self-help networks between women have been flourishing. While voluntary termination of pregnancy (abortion) is allowed in a growing majority of European countries, with 24 out of 27 Member States having decriminalised or legalised abortion³, some countries seem to be moving backwards. After trying to ban it entirely in 2016, the Polish government drastically restricted this right in January 2021. The Constitutional Court decided on 22 October 2020 to limit the practice to cases of rape or danger to the mother’s life, removing the possibility of abortion in cases of foetal malformation, effectively making 90% of abortions in the country illegal. The devastating impact of the new Polish legislation on women’s health has been repeatedly denounced by human rights organisations, particularly in response to the multiple deaths of women from septic shock after doctors refused to terminate their pregnancies⁴.

The reaction of the European institutions

In reaction to this legislation, the European Parliament adopted a resolution on 26 November 2020 declaring the Polish Constitutional Court illegitimate. On the first anniversary of this de facto ban on abortion in Poland, a second resolution was adopted, recalling that this does not reduce the need for abortion for the women concerned, but makes them endanger their health. The European Parliament again condemned this violation of human rights and called on the European Commission to propose a directive on preventing and combating gender-based violence, including violations of sexual and reproductive rights.

Opposed to these resolutions, “Ordo Iuris”, a Polish private foundation, has asked the EU General Court the annulment of the Parliament’s resolutions. Fighting against the rollback of the right to abortion, the Court rejected the two applications of 2021 and 2022 as manifestly inadmissible⁵.

However, the European institutions did not wait for the ruling of the Polish Constitutional Court to fight against the progressive rollback of this right, maintaining their position as defenders of fundamental freedoms in the face of successive challenges from the Polish government or protesting organisations. Thus, a series of judgments were brought before the CJEU, opposing the citizens’ committee of the European Citizens’ Initiative entitled “Uno di noi” (one of us), calling for a ban on EU funding for activities involving the destruction of human embryos – thus the right to abortion – and the European Commission has refused to forward it to the Parliament for debate. On 16 March 2016, “Uno di noi” appealed to the General Court to request the annulment of the communication in question⁶. This appeal and the following attempts⁷ were all rejected. Thus, while the Polish government supported the citizens’ initiative, pointing out the legal and ethical flaws of the Communication, the European Council and the European Parliament argued in support of the Commission and against “Uno di noi”.

Social rights under menace

Similarly, the European Social Charter has acted as a guardian of social rights since 1961, guaranteeing the enjoyment of fundamental economic and social rights without discrimination. Among them, the Charter protects the right to health protection in Article 11. Member States are obliged to eliminate the causes of poor health as much as possible and prevent endemic problems⁸. Sexual and reproductive rights are fundamental rights based on dignity and equality; their violation would constitute a violation of the right to health of women and girls. Therefore, abortion is included in this type of right and is protected by the European Social Charter. The effectiveness of access to health care in Poland is monitored by the European Committee of Social Rights, which publishes a report on the national situation every year. After finding that access to healthcare in Poland does not comply with the Charter, the 2023 annual report reiterates its response, seeing that the government has not taken any steps to remedy the situation. The Committee also questions access to contraception and recalls the right of citizens to be informed of its cost. Finally, the Committee condemns Poland’s restrictive abortion laws because of the poor conditions under which abortions are carried out; they endanger the health and lives of the women who undergo them. Therefore, Poland is called upon to restore the situation to bring it into line with Article 11 of the 1961 Charter and protect the right to access health.

The last few years have been pivotal for abortion rights, posing many threats to fundamental freedoms. The prohibition of women’s access to abortion is a clear impediment to their right to self-determination and the fight for gender equality. Still, it also impacts social and economic equality and is a form of gender-based violence. Indeed, when a state denies or makes access to abortion more difficult, women’s right to health is threatened. While this medical intervention is extremely safe when carried out according to recognised and supervised methods⁹, it is hazardous when carried out clandestinely. Today, a woman dies every 9 minutes from the consequences of clandestine abortion in the world¹⁰. The decline in abortion rights worldwide and in Europe has resulted in an increase in the number of unsafe abortions, forcing women to travel abroad or to have risky operations. De jure or de facto ban on abortion infringes on women’s health, autonomy, sexual and bodily integrity, and even their lives.

A threat that extends beyond Poland

The gradual decline of abortion rights is not a reality only in Poland; the threat of a backlash looms all over Europe and extends far beyond. The European institutions regularly point out that criminalising abortion and restricting its access violate the human rights obligations of Member States. This recognition can be seen through the social strand of Europe and the United Nations. The International Covenant on Economic, Social and Cultural Rights (ICESCR), the European Social Charter and the Charter of Fundamental Rights of the European Union are all examples of the right to health. Forcing women to resort to clandestine abortion sends them back to practices that are very dangerous for their health.

The European Court of Human Rights has used the right to health as an argument in two joint cases against Sweden. On 11 February 2020, two applications concerning midwives who were not hired because of their refusal, on religious grounds, to take part in abortions were declared inadmissible for being manifestly unfounded¹¹. For the first time, the Court enshrined the obligation to perform abortions in the name of the legitimate objective of protecting the health of women seeking abortions. Faced with the rising argument of the right to conscientious objection, the Court recalled the positive obligation of States to organise their health system in such a way as to ensure that the effective exercise of this freedom of conscience in the professional context does not impede the provision of these services. 

Despite all of this, the effectiveness of the right to abortion is currently threatened in Italy by the increasing use of the right to conscientious objection by practitioners. In 2020, 64.6% of gynaecologists refused to perform abortions¹².

Finally, the year 2022 saw unprecedented threats. On 24 June 2022, the US Supreme Court’s announcement to overturn the landmark case Roe v Wade – that opened abortion rights in 1973 – led to a ban on abortion in 18 States and to a worldwide shock. Within a month, the European Parliament passed two new resolutions condemning the US decision. First, MEPs called on the European Council to trigger the revising procedure to include in the EU treaties the right to abortion in the Charter of Fundamental Rights and to uphold the Roe v Wade ruling.

From the 15 of September 2022, it has been Hungary’s turn to regulate abortion rights. It was decided that women wishing to have an abortion must listen to the heartbeat of the foetus to be confronted with its vital functions

Despite the recurrent reminders of the European institutions on the principle of non-regression¹³, the developments observed sound warning bells about the conservative movements’ ambitions regarding the right to abortion and the consequences on women’s health, whether the right to have an abortion is threatened in the legislative texts or in its effectiveness.

By Anna Diaz

References

1. See for example Elisa Covo’s interview of Amnesty International France, “Justyna Wydrzyńska : tout ce qu’il faut savoir sur la condamnation de cette militante polonaise pro-IVG”, Madmoizelle, 15 march 2023.
2. UN press release, “Expert UN calls on Poland to acquit human rights defender Justyna Wydrzyńska”, 15 March 2023.
3. Ireland is the latest European country to have decriminalise abortion through to the referendum of 25 May 2018, adopted by the Irish Parliament on 13 December 2018.
4. Agnieszka T. who died on 25 january 2022; Izabel who died on 22 september 2021.
5. Order of the General Court of 11 October 2022, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, T-41/22.
6. Order of the President of the First Chamber of the Court of First Instance, European Citizens’ Initiative ‘One of us’ and Others v. European Commission, 16 March 2016, T-561/14.
7. Judgment of the General Court (Second Chamber, Extended Composition), European Citizens’ Initiative One of Us and Others v. European Commission, 23 April 2018, T-561/14; CJEU, European Citizens’ Initiative One of Us v. Judgment of the General Court (Second Chamber, Extended Composition), 26 June 2018, C-418/18; CJEU, GC, Patrick Grégor Puppinck and Others v. Republic of Poland, European Commission, European Parliament, Council of the European Union, European Citizens’ Initiative One of Us, 19 December 2019, C-418/18.
8. European Social Charter, art.11 paragraph 1 and 3.
9. Abortion care guideline, Geneva, World Health Organization, 2022.
10. Figures given in a family planning report, 2016.
11. ECtHR, Grimmark v. Sweden and Steen v. Sweden, 11 February 2020.
12. Italian Ministry of Health, Relazione Ministro Salute attuazione Legge 194/78 tutela sociale maternita e interruzione volontaria di gravidanza – dati definitivi 2020.
13. According to which public authorities should not adopt measures that undermine the previously developed level of protection.