Katarzyna Skrzydłowska-Kalukin: Marta Lempart has been appealing to doctors: perform abortions as you have so far, and the Polish Women’s Strike will give you legal support. Will advocates be able to defend doctors after the publication of the Constitutional Tribunal’s ruling? 

Ewa Łętowska: Persuading doctors to perform abortions under the rules in force so far is an expression of the triumph of hope over experience. The judgement has invalidated the exception which justified an abortion in the case of a pregnancy with embryo pathology. As such, doctors will be punished for performing them. I cannot imagine trying to persuade them to do so.

What if you justify the abortion by referring to saving the woman’s health? For example, mental health?

You can, of course, see a pathological pregnancy as a threat to the woman’s health. If there are really grounds for that, abortion can be performed. But it is very difficult to prove. And let us assume that this is really a situation in which a person’s mental health is at risk, and not an attempt to circumvent the ban. So, if the condition to save the woman’s health is met, the doctor will perform an abortion. If it is a determined doctor.

I would like to remind you of a situation that happened a few years ago in Ireland, which then had a law similar to the one we have after the Constitutional Tribunal’s ruling. A young dentist, Savita Halappanavar, had pregnancy complications that would have certainly led to a miscarriage. The complications continued, but the doctors refused to perform an abortion and were waiting for the miscarriage. The freezing effect worked. The doctors were afraid of being “dragged to court”. Finally, the woman contracted sepsis and died. Her death became the stimulus for a change in Ireland’s abortion legislation.

One of the consequences of the Constitutional Tribunal’s ruling is that it makes any medical decision on pregnancy termination based on a risk to the woman’s health dangerous. Embryo pathological cases could be ‘sold’ as risking the woman’s life, so the prosecution will treat all such procedures with distrust, which means that doctors will become hostages of the ruling. On the one hand, doctors will be talked into applying the law broadly and treating embryo pathological cases as a premise for a risk to the woman’s health, and on the other – the prosecution will repeat the mantra: be careful, doctor, we’ll be watching you.

Doctors will be under pressure from two sides: pro-life and pro-choice proponents. It is a hugely uncomfortable position for the doctors, and puts patients at risk. Some doctors are more courageous, some less so – they have their beliefs and thus they are facing a huge ethical dilemma. To be honest, I think this situation is really very harmful. A court ruling should not endanger one social group so significantly.

An ethical dilemma is definitely difficult, but what is more important is the law…

…and they have the public prosecutor at their disposal.

Exactly. And it is up to the prosecutor’s discretion what consequences the doctors will suffer for their decisions. The prosecutor can prove anything.

No, not everything, but if they are inquisitive, they can cause trouble for the doctors. Therefore, from their perspective, the safest tactics is to disassociate themselves and say: leave us alone. What has happened promotes indifference to the problems that occur during pathological pregnancies, indifference to the way that the doctor is treating the woman. So, it’s not only about the content of the Tribunal’s ruling, but also about the way it works. And it has a chilling effect on the doctors’ attitudes. It makes prenatal tests risky.

So, it is possible that doctors will not ignore the judgement, although Marta Lempart calls upon them to do so, but to the contrary, they will be more cautious about performing abortions based on the premises that remain legal.  

According to statistical data, 97 per cent of abortions were performed due to embryo pathological reasons and 3 per cent in the case of the other two premises: risk to the life and health of the woman, and the pregnancy being the result of a crime. If we expect a freezing effect when it comes to the premise of the risk to the life and health of the woman, you have to agree with those who say that the Tribunal’s ruling has led to a practical ban on pregnancy termination in Poland. Marta Lempart said, in a pretty blunt way, that she had certain expectations towards doctors, but the same goes for the pro-life side. They will not withdraw. And they will be turning to the prosecution just to “make sure that no crime was committed”. And an apparently innocent explanatory proceeding can be very wearying.

So, the result of pressure being exerted on doctors poses a risk both for them and their patients.

What is also dangerous is the relaxation of the legal system resulting from the judgement. We are talking about societal repercussions, but I would like to add one more important thing. Namely, an abortion in the case of an embryo pathology case declared unconstitutional, because under Article 38 of the Constitution, the life is protected from the moment of conception. In 1997, when the Constitution was adopted, there was no doubt that this was not the Article’s objective. There were heated discussions surrounding the topic before the Constitution was adopted, which is documented and you can read about it. Finally, the idea that the Constitution protected life from the moment of conception was undoubtedly rejected. This is how the Constitution was adopted, agreed upon via a referendum, how it was understood and applied. The Constitution says that all life is protected, but does not specify that it is from the moment of conception that life is understood. Ordinary legislation is supposed to settle the issue.

And the judgement issued in October last year introduces the line of reasoning according to which if the Constitution is silent about the moment when protection of a life begins, then the decision can be made by the Constitutional Tribunal, which says that it is at the moment of conception. And this is, as far as my knowledge of law goes, a mistake in reasoning. Under normal circumstances, once the Tribunal declares an issue unconstitutional, the ordinary legislator takes over. And they can do whatever they want, they can restrict the abortion law, liberalize it, there are no obstacles to it. Whether it’s politically feasible is a different issue. A so-called compromise could return, but the details should be hammered out in a different way. Maybe, in order to be in accordance with the “life protection” postulate, there should be a special system of support for pregnant women at the prenatal stage.

What makes the Tribunal’s ruling so evil-minded? It is trying to persuade the legislator that they do not have the discretion, that they are bound by the alleged constitutional ban. The ban that is not expressed in Article 38, but which the Constitutional Tribunal deduced from the Article. Why? In order for the parliament to feel limited by the judgement, although they can act freely. Of course, there is a risk that if Parliament repeats something that the Tribunal had deemed unconstitutional, the same ruling would be issued again. Such a back-and-forth is possible, but as a rule, the parliament is not bound by what was said in the ruling.

So, the parliament can change the abortion law. 

Of course, yes. Let us hypothetically imagine that something happens, a sudden change occurs and the parliamentary majority changes after the elections. If you ask me if the majority could, let us say, go in a completely different direction and liberalize the conditions for terminating pregnancy, despite the Tribunal’s judgement, then I would say that yes, from a strictly legal perspective, it is possible.

This is a consolation for the pro-choice community.

No, it is not a consolation. I think this possibility will not necessarily make members of the parliament, or even the opposition happy. If you have to make a decision which has a legal bearing on social life, be it issuing a judgement or adopting a law, the decision maker often does not like doing it, and would prefer someone else to do so. This time as well, politicians prefer to hide behind the Tribunal’s back. And the Tribunal threw the ball back at them. But they put a wrong label on the judgement, as if the Constitution banned the liberalization of abortion. For me, the judgement is a dummy, because there are huge objections with regard to the Tribunal’s panel, its functioning, the motion that it was reviewing, so with all these faults, the judgement spreads untrue information, as if the Constitution was protecting life from the moment of conception.

The Sejm of today will not liberalize the abortion law, but maybe the Sejm of the future? Can the Women’s Strike be effective today?

As a lawyer I do not have much to say here, because you are not asking about legal effectiveness. In street demonstrations, the criterium of strength is crucial. This is the emanation of a civic society, showing the extent of social unhappiness, but law only states that the protests are legal, that’s it. A lawyer will not tell you anything more, for them, street criteria do not constitute a legal argument. The legal value of demonstrations is about their legality.

If an abortion was not performed for embryo-pathological reasons, can a woman claim her rights as an injured party?

No, she can’t. She could try, if, as a result of a pathological pregnancy, she contracted sepsis or was not treated correctly, she can also claim her rights resulting from a doctor’s failure to recognise a risk to her life, but not because of the ruling of the Constitutional Tribunal, which eliminated the possibility of abortion in the case of a pregnancy with embryo pathology. To cut a long story short: you are asking me if what has happened gives a woman any right to seek compensation. No, it doesn’t.

So, women who are pregnant with embryo pathology are helpless after the judgement. 

Yes, completely helpless. It is very difficult to think of an effective solution. Some might consider an application to the European Court of Human Rights in Strasbourg, but I very much doubt that it will be effective.

So, the protests, which reflect opposition on a wide scale, will not change anything? 

Any law is a social contract. If the state does not want to follow the contract and uses the criterium of force to execute it, circumvent it or break it, then no law, no matter how it is written, will be strong enough. It is not the fault of the Constitution that it was broken, circumvented or executed. Just like a crime victim, for example of a rape, cannot be blamed for what the perpetrator did.

I used this comparison once and I got considerable public pushback, but it is an accurate one. The law is constructed to be a muzzle on political power. So, the state must have at least some willingness to keep the social contract. Especially that we are in the European Union, which is based on, among other things, the foundations of law limiting the political power. Of course, any social force will try to draw the law to its side, the question is whether the state is determined to protect these principles or not. It is hard to believe that this is the case if the state itself starts to play with false labels.

Please recall Orwell’s dystopia “1984” and the Ministry of Love and the Ministry of Peace. This was playing with false labels. Of course, I do not want to abuse the argument that we are living in Orwell’s dystopia, but history shows us that the law was abused and manipulated by the state apparatus itself in the past. And we are now witnessing that various institutions become dummy institutions.

Please remember what has happened with the Constitutional Tribunal. It was created with the objective to rid the legal system of unconstitutional acts. And what happened with the abortion law? Why was it contested? So that the parliament does not need to deal with the controversial issue of abortion. The Tribunal was used as brake or as an institution that will legitimise the political will to change the so-called abortion compromise. The Constitutional Tribunal has ceased to be an autonomous entity purging the legal system of unconstitutional acts adopted by the parliament and has transformed into a legitimiser of the parliamentary majority’s political will.

So, it is supposed to guard the Constitution, but it’s circumventing the law?

This is the brutal upshot of what is happening in the country. If we more and more often witness situations where law is broken, circumvented, stripped of its meaning or falsely labelled, then we are on the best path to create a Doppelstaat, the Dual State, in Poland. The concept of the Dual State was created by Ernst Fraenkel, a philosopher, who used it to describe the 3rd Reich. Of course, it’s a terrifying example, but the symptoms of the legal system becoming a dummy one can be found in other countries as well, when democracy is beginning to bow under the tyranny of the majority. If a democratically chosen majority starts to supress the minority, then this is a problem with democracy.

In order to avoid such situations, the rule of law was invented, which guarantees the respect of the interests of minorities. But when we relinquish this, when democracy is deviated from, and at the same time, the Constitution is not changed, which explicitly says that minorities should be protected, then what we are dealing with is the legal system becoming a dummy one, we are creating a dual state. Just like what happened in socialist time, and that also used false labelling.

Of course, the claim about the dual state can be accused of being an example argumentum ad Hitlerum, but this does not alter the fact that under these circumstances, the real threat is the death of democracy due to a tyranny of the majority. And this always happens by making the law a dummy one. If the power is absolute, if it does not want to respect the interests of the weaker ones on purpose or if it believes that their interests should not be protected, then it means it has unmuzzled the law.

This is the case that we have been talking about. A woman’s dignity is deemed unworthy of protection, as the objective is to enslave the woman by forcing her to carry the pathological pregnancy to term. If the contract about protecting certain interests is ignored, what remains is pure force.

How can you effectively repair what has been damaged after a change of power? There are some ideas about how to reverse everything.

But in this case, you cannot turn back time. Any possible ruling from the European Court of Human Rights (and there can be no doubt about the result, as it’s torture for Polish women) will be handed down in a few years’ time, retroactively. Today we should think about a reasonable policy of supporting families raising handicapped children. This is scant consolation and it’s not realistic. So, what we are left with is the slogan “you will not walk alone”.

Ilustration: Michał Loba, source: poster created for All-Poland Women’s Strike;