Abortion, Constitution and the Role of Constitutional Court: Lessons from Poland

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On October 22th, 2020 the Polish Constitutional Tribunal (hereinafter: CT or Tribunal) made a judgment on the legality of abortion (case K1/20). The CT has decided about the unconstitutionality of abortion in the circumstances of malformation or serious disease of a foetus[1]. The decision has triggered mass social protests and heated debates – of both political and academic nature – in its aftermath.

I am going to analyse some aspects of this ruling from the legal-philosophical perspective. While doing this, by principle I am distancing myself from doctrinal and social aspects of the case. More precisely, I am going to argue that the Polish constitution, while warranting the protection of the life of “every human being”, is underdetermined in that respect and that constitutional court, when facing underdeterminacy of this kind, may choose among three possible approaches. Alas, the CT has adopted none of them. In conclusion, I will suggest what should be an adequate approach for a constitutional court to deciding complex moral and/or political problems.

 

Constitution and the (underdeterminedprotection of life

The verdict of the CT is mostly grounded in the Article 38 of the Polish constitution, which guarantees the protection of human life – at least this was a rationale presented in oral motives for the ruling (the official written reasons for decision have not been provided yet). From this vantage point, it has been argued that every human life deserves protection, thus abortion – as the termination of human life – is unconstitutional. As the advocates of CT’s ruling claim, the Tribunal could not decide otherwise. Hence, before going to the main topic, there is a need to address this viewpoint. I will briefly explain why the constitutional demands of human life’s protection are not as obvious as claimed both by the CT and its allies.

It is certainly true that the Polish constitution guarantees the right to life for every human being. As firmly stated in Article 38 of the Constitution: “The Republic of Poland shall ensure the legal protection of the life of every human being.” Since this article has been located in a section “Personal Rights and Freedoms”, it must be concluded – against some interpretations – that it does not only establish the positive obligation of the state (‘duty to protect’), but it expresses a fundamental right of every individual. Nevertheless, the precise meaning of this right is not entirely clear. What we are facing here is a situation of underdeterminacy of the constitution[2], in at least three dimensions: as regards the content of this right, its scope, and its relations to other constitutionally protected rights.

 

Content

Firstly, the constitution does not fully determine what is the content of the term ‘life of human being’. In particular, it does not precisely state whether unborn entities (including embryos in early stages of their development) should count as human beings and, therefore, whether life in its prenatal phases is protected.

On the above doubt, it may be replied that prenatal life is protected by the Polish law, both on constitutional and subconstitutional level. On the former, consistent standards of interpreting the constitution in favour of prenatal life exist; these standards have been established in particular in the verdict from 1997 in K26/96 case, in which the CT found unconstitutional the admissibility of abortion due to social reasons. On the subconstitutional level, human life in its prenatal stages is protected, among others, under the Act for Family Planning and the Protection of the Foetus (1993) and the Penal Code. The axiological tenets of the Polish legal order in this respect are thus clear and they include the protection of human life also in its prenatal stages.

 

Scope and relations

Still, acknowledging this fact does not eliminate other dimensions of the underdeterminacy of constitutional regulation.  The second dimension consists of the scope and the means of protection of human life. It goes without saying that it is not possible to warrant full protection of life – just as any other individual right – in all possible circumstances. Despite its fundamental nature, the right to life meets numerous practical limitations: not every medical treatment is covered by public funding, police forces are authorized to use firearms in specific cases etc. Also, means of protection may vary, both between various branches of law (criminal law, tort law, administrative law etc.) and within each of them. As the Polish Supreme Court has declared in the context of criminal law: “the very the existence of the provisions of Art. 152, Art. 153 and Art. 157a of the Penal Code excludes any doubts about the fact that human life and health from the moment of conception until death belong to protected goods”; nevertheless, “the intensity and the scope of protection of the life of “human being” and life in prenatal phase, that means the life of an entity termed [in the Penal Code] as a “conceived child” are different”[3]. Therefore, the constitution does not determine what is the proper scope and adequate means of protecting human life.

Thirdly – and most importantly for our considerations – the constitutional regulation of the right to life is underdetermined as regards its relation to other constitutional rights. Constitutionally protected goods, rights and freedoms construct a complex network, with multiple types of relations – including mutual independence, support and conflict. Particular elements of this network have to be weighed and counterbalanced against each other. In the case of the right to life in its prenatal stage, the obvious points of reference are life, health and the dignity of woman. This observation seems to be quite trivial; the only question is who possesses a mandate to make such balancing: should it be decided by a constitutional court, ordinary courts, legislature, or all these agents together? This question leads us to the next problem: what constitutional court may do when facing the underdeterminacy of the constitution.

 

Dealing with underdeterminacy: three ways for a court

So, what can a constitutional court actually do, when facing underdeterminacy of this kind? In a nutshell, it may choose between three possible approaches, which might be called a Dworkinian way, a Habermasian way and a Kelsenian way.

A ‘Dworkinian way’ is an approach in which constitutional judges adopt the role of public moralizers: in the situation of underdeterminacy, they refer to public morality in order to decide the proper interpretation of and a balance between constitutional standards[4]. This approach is best known from the practice of the Supreme Court of the United States. It has been also quite common, mutatis mutandis, in the Polish CT from the very beginning of its existence – at least in the Tribunal’s ‘doing’, if not always in its ‘saying’. It has allowed the CT to become one of the key actors in the legal-political transformation of Poland into liberal democracy which respects the rule of law. In this vein the Tribunal, when interpreting the constitution, granted itself the competence to consider not only values laid down in the constitution but also these “which have not been explicitly expressed in constitutional provisions” (the case W 9/94). By the same token, the CT creatively interpreted the principle of Rechtsstaat (‘the democratic state ruled by law’) as ‘containing’ such various standards as formal equality, the right to privacy, the right to a fair trial, nonretroactivity of law, acquired rights clause, the principle of legal certainty, and many others.

On a  ‘Habermasian way’, a constitutional court takes the role of a moderator of public discourse. Within this approach, a court either serves as the guardian of processes of democratic decisionmaking, or itself becomes a forum for the expression of viewpoints of various social groups and for searching for a reflexive consensus between them[5]. However this approach has been rarely adopted by the Polish CT, but there are some institutional measures – like the institution of amicus curiae – which potentially open a possibility for employing it. Still, the role of ‘Habermasian way’ for the CT seems to be rather limited, both for institutional and cultural reasons. It would require far-reaching procedural amendments, to admit for instance ‘public hearings’ in in the Tribunal, as well as the abandonment of mainly formalistic and legalistic stance of the Polish legal culture.

A third, ‘Kelsenian way’ is a way of a limited court: either externally or through self-restraint. According to the view of Kelsen, the mandate of constitutional court allows for deciding only these cases in which clear and precise constitutional rules can be employed. As for general constitutional standards, they are too vague to serve as grounds for assessing the constitutionality of legislation[6]. Therefore, the interpretation and determination of these standards is a matter for democratically chosen parliament, not a constitutional court. The more contemporaneous version of this approach is presented by the so-called political constitutionalism[7]. Some examples from the practice of the Polish CT are provided beneath.

Clearly, the labels used here to describe these three approaches serve as signposts rather than precise descriptions. Each of these approaches has several versions, not necessarily compliant with theoretical projects of Ronald Dworkin, Jürgen Habermas and Hans Kelsen. Still, the theories offered by these scholars are suitable in grasping the essential difference in conceptualizing the role that constitutional courts should play in deciding complex political and/or moral questions: should judges make their autonomous decisions on such problems, moderate the process of public decision-making, or restrain themselves and leave it to other political bodies?

 

The spectre of Carl Schmitt

Which of these approaches has been adopted by the Polish CT in its judgment on the constitutionality of abortion? The short answer is: none. The CT has exercised its power in an unrestrained way, it has not considered any existing opinions on the problem which have been presented in public discourse, and it has not adopted any procedure of weighing necessary for complex decisions on public morality. Instead of this, it has employed an approach which can be described – to use Adam Sulikowski’s phrase – as ‘cultivating the Kelsenian appearances by resorting to Schmittian methods’[8]. A ‘Schmittian method’ in our context means that the CT has made a decision based on a partisan political interpretation of the constitution. This decision was given ‘Kelsenian appearances’, as it has been presented as allegedly derived, directly and with a logical necessity, from the clear meaning of constitutional regulation.

 

Polish Constitutional Tribunal: a case for the Kelsenian approach

Each of the three approaches described above has its pros and cons, each is to be met in the practice of constitutional courts in various legal systems. The choice between them cannot be made on the level of abstract theoretical considerations, since it heavily depends on institutional settings, the political environment and legal tradition in a particular country (to name just some core factors). In the Polish reality, as I have already noted, it was the Dworkinian approach that was dominant in practice during the period of democratic transformation and afterwards. Following this approach, the CT was an active political actor who participated in decisions about the main directions of constitutional politics. But the Dworkinian way has some drawbacks. Firstly, it assumes that there exists a sufficiently coherent and objective complex of standards of public morality, which constitutional justices are the guardians of. Secondly, it has justified granting a significant and hardly constrained power to the CT. Negative consequences of both these aspects can be observed right now.

Therefore I claim that – considering the institutional and cultural framework of the Polish constitutional court – the most suitable approach for this court is the Kelsenian one, with relatively limited power granted to the court. Only the ‘Kelsenian way’ sets a proper balance between the constitutional court and other political actors, particularly the parliament. Perspectives for the adoption of the Habermasian approach are rather limited, and the Dworkinian one transfers to much power to the hands of – politically unaccountable and uncontrolled – judges. The current crisis in the legitimacy of the CT only supports this view.

Such a Kelsenian perspective was not totally absent in the CT. As early as in 1997, in a dissenting opinion to the abovementioned verdict in the case K26/96 (unconstitutionality of abortion for economic reasons), the justice of the Constitutional Tribunal Lech Garlicki has noted that “it is not the role or task of the constitutional court to resolve general issues of a philosophical, religious or medical nature, as these are issues beyond the knowledge of the judges and the competence of the courts […]. The Constitutional Court is only called upon to assess the constitutionality of the laws it examines, but it cannot replace Parliament in making assessments, establishing the hierarchy of objectives and selecting the means to achieve them”[9]. In this case, the opinion was been backed by the rest of the bench. Still, one may claim that the idea of self-restraint has been maturing in the CT in time, and has led it to formulate its own version of the doctrine (or at least the first seeds of such a doctrine) of ‘constitutional margin of appreciation’: a margin within which legislature should take the responsibility for decision-making. Such a viewpoint has been clearly expressed for instance in cases K1/14 and K21/14, which have been ruled by the CT in 2015, shortly before its capture by the currently ruling party (PiS).

 

Recrafting for trusting

As of today, no one can say what will be the future of the Polish constitutional court. But acknowledging and respecting the constitutional margin is something that we may legitimately expect from the CT even now – all reservations about its current political partiality and formal defects notwithstanding. And when one day we will be able to recraft it anew  – and I strongly believe that such a day will come sooner or later – we should learn both from its past tradition and from the current crisis to prevent it from interfering in political processes of decision-making within accepted constitutional margins. A court with a limited mandate, but effective in its realization: this is what is needed to rebuild the trust in and the authority of the constitutional court in Poland.

 

The author is an assistant professor at the Department of Legal Theory and Philosophy of Law in the Faculty of Law, Administration and Economics, University of Wrocław. In his research, he combines philosophy of law and social theory. He focuses on the problems of reflexivity of law and regulation, including reflexive constitutionalism and the legal regulation of risk. Contact: [email protected]uwr.edu.plhttp://maciejpichlak.academia.edu/

 

1 More precisely, the provision that was found unconstitutional – namely the Article 4a para 1 (2) of the Act for Family Planning and the Protection of the Foetus (1993) provided the admissibility of abortion in cases where there was ‘a medical indication that there existed a high risk that the foetus would suffer severe and irreversible impairment or an incurable illness that could threaten its life’. (translation after A. Krajewska: Atina Krajewska: The judgment of the Polish Constitutional Tribunal on abortion: a dark day for Poland, for Europe, and for democracy – UK Constitutional Law Association).

2 On the concept of underdeterminacy, see Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 University of Chicago Law Review 462 (1987). For more popular description of the problem, see Legal Theory Lexicon: Legal Theory Lexicon 036: Indeterminacy, Determinacy, and Underdeterminacy (typepad.com).

3 The resolution of the Supreme Court of Poland, 26th of October 2006, I KZP 18/06. It should be noted that in Poland, just like in the majority of civil law legal systems, the Supreme Court and the Constitutional Tribunal are two separate and mutually independent judiciary bodies.

4 See R. Dworkin, Freedom’s Law, Oxford: Oxford UP 1996; R. Dworkin, Justice in Robes, Cambridge MA: Harvard UP 2006.

5 See J. Habermas, Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy, Cambridge MA: MIT Press, 1996; C.H. Mendes, Constitutional Courts and Deliberative Democracy, Oxford: Oxford UP 2014; C.F. Zurn, Deliberative Democracy and the Institutions of Judicial Review, Cambridge, Cambridgge UP 2007.

6 See H. Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ in H. Klecatsky, R. Marcid, H. Schambeck (eds), Die Wiener rechtstheoretische Schule. Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl und Alfred Verdross, Wien, 1968, Vol II, 1813–71.

7 On political constitutionalism, see: R. Bellamy, Political Constitutionalism. A Republican Defence of the Constitutionality of Democracy, Cambridge University Press 2007; J. Waldron, Law and Disagreement, Oxford: Oxford UP 1999.

8 A. Sulikowski, ‘Falling Myths and the “Revenge of Postmodernism”: Critique of Law in the Central European Context’, conference paper.

9 Translation after E. Łętowska: <https://verfassungsblog.de/a-tragic-constitutional-court-judgment-on-abortion/>. A similar viewpoint has been adopted in a dissenting opinion to the discussed verdict of the CT (K1/20) delivered by justice Leon Kieres.