Constitutionally Shameful Judgement in Bad Faith (Abortion Case Before the Polish Constitutional Tribunal)
Mini-symposium: Constitutional abortion politics in Poland
Following our recent online discussion on the abortion judgement of the Polish Constitutional Tribunal and on its legal, political and societal implications, we invite you to read contributions addressing some of the complexities of this topic. In the forthcoming weeks we will publish blogposts written by the invited legal scholars representing various research fields and academic institutions.
Our series starts with an analysis of the judgment by Dr Michal Ziolkowski (Max Weber Fellow, EUI; Kozminski University in Warsaw).
1. In 1997, the Polish Constitutional Tribunal declared abortion for economic reasons unconstitutional. The judgement framed an academic discussion in Poland and squared the abortion law for years. Thanks to this judgement, the abortion in Poland is illegal under the criminal code provisions except three cases specified by the particular statute. The statute allows having an abortion in case of fetus abnormality, rape or threat for woman’s life and health. It does not mean that the law expresses the right to abortion. The statute provides only justifying and exempting circumstances (important for criminal charges). Some of the academics may progressively argue that such a strict abortion law should be unconstitutional in our times. And yes, the Tribunal recognised it partially unconstitutional on 22nd October 2020. However, in a different direction. The Tribunal questioned abortion because of the fetus abnormality.
The broader social context and implications of the judgement were discussed in an excellent blog-post of Katarzyna Nowicka on the website of the working group. Therefore, my post discusses only the Tribunal’s arguments. I will follow rather doctrinal and normative approach to square the subject for further discussion. In my view, the Tribunal’s judgement is unlawful and constitutionally shameful. It should be, however, published and change the law.
2. The written full justification has not been published yet. Unfortunately, the oral argumentation provided by the Tribunal is simplistic and unsophisticated. The Tribunal claimed that fetus is an ‘unborn child’, which is a ‘human being’. The Constitution shall fully protect its life. The Tribunal did not recognise differences between fetus, nasciturus and child or mature person. The Tribunal’s argument may be summarised: life is life no matter of form or stage and scientific or moral arguments. Then the Tribunal claimed that ‘fetus life’ may be limited in an extraordinary situation. The Tribunal suggested only one case when it would be constitutionally justified: when the life and health of a pregnant woman are under threat. The Tribunal indicated that this is the situation when the parliament has the power to limit ‘fetus life’ and protect women. The Tribunal’s argument may be summarised: life for life.
My interpretation of the judgement is as follows: 1) the Constitution does not protect the right to abortion; 2) the Constitution fully protects the dignity of a fetus as a human being; 3) the constitutional protection of women health does not justify abortion in case of fetus abnormality. The Tribunal did not refer to the international standards of human rights. The oral justification of the judgement did not even mention that forcing women to give birth in case of fetus abnormality could be recognised as inhuman treatment. The Tribunal did not also consider the case under the constitutional right to privacy, as other constitutional courts did in similar cases. Instead of doing that the Tribunal generally underlined positive constitutional obligations of the state to support parents after the child is born.
3. The Tribunal indeed follows the previous case-law which was in favour of Catholic Church (cases concerning: religious classes, ritual slaughter, concordat, church properties). But still, the judgement is constitutionally shameful for the following reasons.
There should be no doubt that for many years the abortion has not been recognised as a constitutional right in Poland. Nevertheless, the current Tribunal’s interpretation (or one-side story) does not follow the intention of the founders. They wanted to avoid any direct constitutional protection of fetus as well as to prevent direct references to abortion on the constitutional level. It is clearly visible in the constitution-making process and preparatory works. The founders consciously left the abortion in the hands of changing political majority in the parliament.
References to popular will cannot defend the Tribunal’s judgement. As Aleksandra Kustra-Rogatka pointed out on Verfassungsblog, the judgement is rather an example of right-wing populism than popular constitutionalism. As public opinion polls and mass-protests show, the majority is against such a restrictive abortion law. The Tribunal did not refer to the issue of essentially contested concept, the political question doctrine or other forms of non-justiciability, which are often applied by courts in hard-cases of high moral value for a divided society
Moreover, Tribunal abused the concept of dignity. The Tribunal claimed that constitutional protection of fetus is a consequence of the protection of human dignity as a primary constitutional value. No matter whether we agree with that or not (I do not), there is a more severe problem with the Tribunals’ reasoning. Protection of dignity of one subject cannot lead to the reification of another subject. Protection of fetus dignity cannot make a woman being an object. The concept of dignity should not be used when one group is dehumanised.
The Tribunal applied a very simplistic concept of balancing and failed to do full proportionality test. The judgement is focused on the fetus as human being and limitation of fetus right to life. The constitutional rights of women were not even recognised as equal to fetus constitutional status. The Tribunal found women’s life and health as a narrow exception that may limit fetus right to life. It means that the constitutional protection of fetus may prevail over the protection of pregnant women in case of rape. The Tribunal said: when the life of pregnant women is not at stake, the protection of fetus prevails. This conclusion has, however, no evident legal basis since the Constitution directly protects women in different situations and does not even mention ‘fetus’ or ‘unborn child’.
In my view, the Tribunal acted with a visible bad faith. I use this term as a normative concept rather than a political label. In my opinion, the constitutional court acts in bad faith, mainly when the following conditions are filled. First, the Court adopts a decision which is deeply harmful to human rights of one group of the society (i.e. women). The Court is also in bad faith when it adopts a decision which merely is non-justiciable (the religious views replace, i.e. when there are no legal arguments or legal arguments). Second, the Court may easily recognise that the decision would intensify human rights violation. Third, the Court, having the power to prevent such a harmful effect, does nothing. This fits the Polish judgement well.
The Tribunal knew the judgement would frame the rights of unprivileged women who cannot afford an abortion in other EU member state. The Tribunal knew that the political consensus in the society and the parliament is different. The Tribunal knew its decision might need the parliament’s reaction. The Tribunal had the power to prevent harmful effect and give the parliament time to react. According to the Polish Constitution, the Tribunal can delay the legal consequences of its judgement. The Tribunal may also specify the effects in the sentence of the judgement. However, nothing much happened. It is clear that the Tribunal intention was to change the abortion law immediately no matter of the constitutional and social costs. This is what I call a bad faith in constitutional adjudication.
4. What should we do with such a shameful judgement? Should it be published and change the abortion law?
According to the Constitution, the Tribunal’s judgements have legal effects after their official publication only. The publication is in the hands of the government. However, the law does not leave government discretion. The judgements have to be published immediately. In our case, it means that the old abortion law is still in force until the judgement has not been published. After its publication, any abortion because of fetus abnormality will be illegal and criminally charged. However, by now, the abortion clinic should still offer their services. It is still formally legal in Poland. This observation provoked academics into a different interpretation of the Constitution.
According to the first approach, the Tribunal’s decision cannot be recognised as a judgement under constitutional law. It was called as an ‘a dubious judgment by a dubious court’. The decision may be considered as a political fact only. The fact has no legal consequences neither for citizens nor for public authorities. This approach is represented by some of the opposition members and centre- or left-wing academics. The three significant arguments support this approach.
The first is that the Tribunal is unconstitutionally composed since 2015, and the abortion case was heard with the presence of the fake judges. Moreover, the President of the Tribunal was elected and appointed with the violation of the law. And she was a member of the Tribunal’s panel in the abortion case.
The second argument is that the Tribunal does not give an appearance of independence. The case studies of the latest President of the Tribunal’ decisions revealed that she abused her power to assign judges to the panels many times. She decided which case should and should not be heard by the particular judges. This is why the Tribunal was recognised as the non-independent body by the Polish Supreme Court.
According to the third argument, the published judgement means torture for women who are forced to give birth even in the case of fetus abnormality.
Therefore, the growing group of academics claim that the unconstitutionally composed panel of the Tribunal cannot deliver a judgement within the constitutional meaning. The judgement may be given by judges only. The decision in the abortion case shall not be published. It is void. The abortion is in case fetus abnormality shall be legal.
According to a different approach, the abortion case was concluded by the judgement. The judgement was indeed delivered with a serious violation of law by the unconstitutionally composed Tribunal. Nevertheless, it is still the judgement. It is valid and has to be published no matter how unpopular, humiliated or merely harmful it is. This approach is also represented by academics, including me, who also strongly criticised PiS and the Tribunal since 2015. The three arguments support this approach.
The first argument is formalistic. Legally, there is no such thing like a void judgement of the Tribunal. The Constitution directly claims that all judgements of the Tribunal have to be published no matter whether the government or citizens like it or not. No authority has the power to assess whether the Tribunal’s judgement is void, even in case of such harmful violations of law made by the Tribunal. Maybe this system is imperfect, but it protects stability and predictability of law as a higher value. It also helps to avoid dangerous precedence. It protects the Tribunal in regular times against the government.
The second argument touches the history of constitutional law. For more than 17 years there were no doubts that the Tribunal judgements have to be published. This rule was violated by the PiS government only. It refused to publish three judgement of the legally composed Tribunal in 2016. The government do it because it was politically convenient at that time. Those who claim today that the judgement in the abortion case should not be published unfortunately follow the path of the PiS government in 2016.
The third argument is realistic and moral at the same time. The judgement has already created a chilling effect among abortion clinics. As the newspapers reported, the clinics stopped their services in case of fetus’ abnormality. The judgement was recognised by the Polish President, who summited a new bill on abortion. The judgement was also recognised by the Minister of Justice and the Prosecutor General, who can use his power to charge women and doctors criminally. In my view, nobody has a moral right to put women and doctors in such a difficult position of heroism. The unpublished judgement means unpredictability.
This is why, in my view, the shameful Tribunal’s judgement is valid and have to publish. After the publication, it will modify the abortion law. The abortion because of fetus abnormality will be illegal, and the new chapter of remedies will be opened.