CJ: Hello and welcome to the Feminist Law Podcast. I’m your co-host Courtney Jones.
CT: And I’m your co-host Clara Topiol. We’re both co-founders of the Feminist Law Project and final year law students who are very passionate about feminism and the law.
CJ: Today on the podcast, we are continuing our interview with Atina Krajewska. To hear the first part of this interview, you can refer to last week’s episode. As was mentioned earlier, legal abortions were banned in Poland on the 22nd of October 2020 in the K1/20 judgment by the Polish Constitutional Tribunal. This decision led to widespread protests across Poland and the world. Was this decision to be expected in a way considering the increasing acceptance or support of restrictions?
AK: I think the short answer is yes. I should clarify that the decision of the Constitutional Tribunal in the case K1/20 on the 22nd of October 2020 struck off one of the provisions of the abortion law. So, as I said, before that judgement, it was lawful to obtain abortion in three cases: when there was a risk to the health or life of the woman, when there was a fetal anomaly or where the abortion was the result of an illegal act. The judgment deleted or held unconstitutional the second ground, so it prohibited, since this judgment, it is unlawful to seek abortion on the grounds of fetal anomaly. This means that abortion is still lawful in Poland where there is a risk to the health and life of the mother and where abortion is a result of rape. Also, a very important thing to remember about abortion law which might not be the case in other restrictive regimes, is that in Poland, women are not criminalised for seeking or undergoing abortions, for having abortions. So, that’s a very important distinction and a very important fact. Officially, before 2020, there were approximately 1000-1,100 abortions a year in Poland; most of those abortions were on the grounds of fetal anomaly. So this judgment meant that within the official numbers, women could no longer seek abortion on the grounds of fetal anomaly, which obviously is extremely important and led to horrific consequences because women can no longer seek the help of healthcare professionals in cases which require that help. That’s really really important. Whether this was a surprise that this judgment came about, no, it wasn’t a surprise. I think we were expecting some restrictions in some form. So, in order to give you a bit of a background, prima facie, the Constitutional Tribunal judgment can be seen as part of the Law and Justice Party project, the party in government. They came to power in 2015. Whilst originally the party was rather modern concerning reproductive rights, the political dependence on the Catholic Church and the competition with the political factions led to its rapid radicalization. Consequently, since its assumption of power, the party has mounted an offensive against reproductive rights and openly supported numerous attempts to restrict even further the already restricted abortion laws. This started in 2016, just a few months after they came to power. The Prime Minister admitted that the government would support a total ban on abortion. At the same time, an ultra-Conservative organisation prepared a legislative proposal according to which abortion would constitute a crime in all but one case: if the death of the fetus was the consequence of an action aiming to avert a threat to the woman’s life. This met with the first wave of protests in Poland. 2016 is where we have the re-awakening of Polish society: people went to the streets, and this was a real shock I think for the government. This failed in Parliament, but they didn’t give up. The attempts to restrict abortion law continued. In 2018, we had another wave of legislative proposals aimed at a total ban on abortion. These initiatives triggered mass protests, especially in October 2016 and March 2018, which have become regular events known as women’s strike. Different legislative protests of more draconian abortion laws passed in Parliament over the years. Most recently, and this is probably important for the purposes of our discussion, in April 2020, not very far from the October 2020 judgment, this is the reason why in 2019, a group of 190 Conservative MPs chose the route of a constitutional complaint to have such changes introduced through a different route. They decided that because they were failing to introduce legislative changes through a legislative route through Parliament, they would use the Constitutional Court. By then, the government had acquired control of the Constitutional Tribunal. The Constitutional Tribunal in Poland is highly politicised, has been hijacked by the government, it has been hacked. The judges sitting on the bench at the moment are political nominations which support the government totally. This is what determined the outcome of the decision in 2020. So, as such, the judgment in 2020 constitutes a perfect illustration of the broader patterns of government that have dominated Polish politics in recent years. It wasn’t a surprise. We were surprised that the judgment came during the pandemic. I think perhaps this time was chosen because of the lockdown and the government was hoping that this would not probably lead to protests and that they could curb the protests easily but actually, this didn’t happen and didn’t work. There were massive protests as you mentioned.
CT: Thank you for your explanation. So, before I move on, I just had a follow-up question about something you said regarding the criminalisation or lack of for women. It sounds, and please correct me if I understood this wrong that women in Poland are not criminalised for having an abortion despite the legal ban in place. So, I was wondering what the consequence is on women given that they are obviously going against the law.
AK: They themselves, in theory and in most cases, they cannot be reported and shouldn’t’ be reported to the police, they cannot be prosecuted for having an abortion, for seeking abortion. In theory, this is the case. There are no cases in courts against women. Doctors, healthcare professionals and anyone who assists a woman in seeking abortions, in having abortions, can be prosecuted. Now, obviously, this doesn’t mean that women do not face any consequences because of this law. Whilst they may avoid prosecution, the whole circumstances and the situation that this law has created is that their access to services isn’t really limited. So, the consequences are that very often, hospitals call the police and although they do not record women, in practice they cannot, they do inform the police about a case of potential abortion if they find remains of abortion pills, if the woman or her partner sometimes mentions the fact that she might have had an abortion. This obviously is extremely distressing for women. Women are often questioned as witnesses, and they mentioned a situation where they’d just gone through probably a traumatic event since you’ve ended up in hospital. Usually, this means something may not have gone entirely right. This is a very stressful situation and in addition to that, you’re subjected to questioning, you’re treated with suspicion, and you’re asked to provide information about people who provided you with abortion pills, for example. This obviously is very traumatic for women. Obviously, as I’m sure you know, there is currently a case in court going on. There are proceedings against an abortion activist who tried to help women because as I said, assistance in abortion is criminalised in Poland so there is the attempt to convict her of a crime. So, although women themselves might not be criminalised and not face prosecution, the people who try to help them do and as a result of this, they find themselves in extremely stressful situations so that’s one negative consequence of the abortion law and especially after the judgment. Second set of circumstances, far more traumatic and horrendous is that the law has had a chilling effect on the abortion practice, and we see women, Polish women, dying in hospitals because doctors are seemingly afraid to perform abortions which are still within the letter of the law, within the realm of legality. As I said, it is still lawful to provide abortion if the woman’s life or health is at risk. However, Polish doctors refuse often to perform abortions, and this resulted in the death of two or three women already in Poland since 2020. This has had a very very dramatic impact on the lives of women in Poland.
CT: Thank you for expanding on this, it’s definitely something that’s not spoken about much and it was very interesting to hear. It’s obviously a traumatic experience or must be for these women so thank you for expanding on that. So, I was wondering, since the legal ban on abortions in Poland, are you aware or do you know if there has been an increase in at home or unsafe abortions as a result of the ban?
AK: So, I think we need to make a clear distinction between unsafe abortions and at home abortions. I think we should be very clear about the fact that abortion pills are one of the safest methods of abortion. They are safe, they are easy to use, and the vast majority of women have those abortions using medical abortion medications. Nothing happens. This has been obviously liberating for women, that has changed the abortion landscape in Poland as well. We need to be clear about that. There is a huge amount of information online and provided by organisations like Abortion Without Border, the Abortion Dream Team and other organisations who provide information about medical abortion and can lead you and can be with you every step of the way. They are not unsafe abortions. The number of abortions that happen continues to be very high. Before the judgment in 2020, the estimated number of abortions was between 80,000 to 200,000 abortions a year. I think we see the same amount continuing in Poland today. What happened was that obviously now, women are afraid that if they get pregnant and something is wrong with the fetus, then they really cannot access lawful abortion in healthcare settings. When the judgment came into force, organisations such as Abortion Dream Team and Abortion Without Borders registered a huge number of phone calls and requests for help from women in Poland. In the 1st year since the announcement of the judgment, there were 460 women seeking second trimester abortions who travelled only to England. There are other destinations such as the Netherlands, Spain, Germany, Czech Republic, and other ones. Polish women travelled for abortions, and this has definitely increased. There were I think 18,000 women helped by affiliated groups that facilitates the access to abortion pills. Some women were having abortions just because they want to prevent a situation where something is wrong with the fetus, and obviously it has disproportionate consequences on women or for women who are from low economic backgrounds, who struggle financially. In the current financial situation, this obviously will affect many women who may not be able to travel, might not be able to easily access abortions. So obviously, we don’t really know whether there was an increase. There was certainly an increase of women who go abroad in the second trimester seeking abortions due to fetal anomaly and malformations.
CJ: Thank you for that information. So, going on then from the K1/20 decision in Poland and given that Roe v Wade was overturned recently in the US, do you think that we’re currently at a time where there is a risk that countries will increasingly ban abortions and if so, why do you think that is?
AK: I think there is always a real risk that reproductive rights will be reversed and taken away. I think we should never ever be complacent about the fact that we do have them. This is not something that’s set in stone and once acquired can never be taken away. I think we always should be alert and ready. Conservative organisations and forces in Europe especially are very active, not only in Europe actually, also in the United States as you mentioned, and in Latin America, all over the world. They are extremely well organised so should always be alert and always fight for access to reproductive rights justice because obviously, this is an area where intersectionality is extremely important, women from disadvantaged backgrounds, ethnic minorities, women of colour, pregnant people with disabilities… they are all affected disproportionately by any changes, and we should always try to improve their access to reproductive rights and services. However, and obviously, at the moment, I think the Conservative organisations are trying different methods and different strategies to restrict abortion laws in countries like Poland, Croatia, Hungary… in many countries in Europe, in Russia as well in fact. But, it’s not all doom and gloom and there are signs of hope. I think we have seen in the last two years a green wave of liberalization in many countries in Latin and South America, in Argentina, Columbia, Mexico, with the election of Lula in Brazil despite the horrendous events of two days ago. I think we have signs of hope, and it is possible that some liberalization will happen in Brazil as well. In African countries, there have been countries where abortion law has been liberalised, in Asia as well. And obviously importantly, international organisations are becoming much more outspoken and clear about the fact that abortion rights are part of human rights, and this is clearly seen in the WHO guidelines adopted in 2022 where they speak very expressly against criminalisation, they analyse and show the links between criminalisation and risk to women’s health and public health. They do provide clear guidance for and in support to abortion services and clear guidelines that urge countries to decriminalize abortion. I think we have on the one hand horrendous examples such as in Poland and in the United States but at the same time, we do see opposite signs and we do see other trends. This is never over. I think here again, we might see the dialectic transformations in operations. This term might actually be helpful to describe other countries and not just the developments of abortions in Poland.
CT: Thank you, that was a really fascinating global outlook on abortion law. So, the K1/20 decision in Poland seems to undo the work that Poland had achieved with regards to abortion rights and seems to take Poland backwards in this effect. Do you anticipate any scope to overturn the K1/20 decision in Poland in the near future?
AK: Yes and no. It all depends on whether the Law and Justice Party will win the next elections in Poland. Whilst there are some positive signs that this might be the case that they will lose the elections, we have to be cautious in our predictions. Many times, opinion polls show or have shown that they are losing support and yet, they have won consecutive elections for many years now. So, I would be cautious. If the opposition comes to power, there would be probably two possibilities if the opposition parties do fulfil their electoral promises. If Law and Justice lose power in the next elections, the leader of the opposition movement Tusk, a former PM for Poland, has promised to decriminalize abortion in the first trimester. This would be great; I’m not sure how serious he is about this. There is a legislative route, and a new law could be implemented. I would be cautious because Tusk used to be a PM in the past and he did nothing to liberalise abortion and to change the situation, even change the way that the law was implemented and to increase access to lawful abortion services. Such promises have been made in the past by other parties like Social Democrats, but they have never been introduced. So, there are many Conservative forces in Poland, and it seems that the Catholic Church is still very powerful. We have to wait and see whether this legislative route will have to be taken if the Law and Justice Party loses power and cannot support the government. If the government changes and if the Law and Justice Party loses power as I said, there is a huge question about the status of the Constitutional Tribunal in Poland. As I mentioned before, the Court has been hijacked by the government and the Court has been packed with judgments serving the interests of that government. Since 2015, the legitimacy of the Court and the validity of the Church issued by the Constitutional Tribunal has been called into question and there are some lawyers in Poland who refuse to recognise these judgments. If there is a change of government, a real change in the approach to all the constitutional and democratic goings on in Poland in the last few years, there might be changes to the approach to the judgments that have been issued by this Constitutional Tribunal during that period of time. Obviously, this would create a huge chaos legally because this would undermine the very basic principle of security and safety of the legal system. However, there are some arguments in favour of saying that this was not a valid judgment so it could mean a reversal of the judgment and then it would be in a very unique unprecedented situation. I really don’t know what would happen then but there is a possibility that this might happen. I think the legislative route is far easier to introduce but we will have to wait and see. Obviously, if the Law and Justice Party remains in power, I don’t think we will see much change in the near future.
CJ: Thank you so much for that explanation. We’ve talked a lot about the evolution of abortion laws in Poland and attitudes towards abortion but currently, if a woman wants to have an abortion in Poland today, what are her rights and what are the risks involved if she is able to seek an abortion?
AK: I think we mentioned this already. At the moment, the abortion in Poland is a criminal offence for those who aid women in having an abortion, who support women in having an abortion. There were cases as I mentioned and there is a current case against an abortion activist. There was a case of a partner who bought abortion pills for his girlfriend. In terms of women, women can have the right to have an abortion. They have the right to buy medical abortion pills online, they have the right to take them, they have the right to seek all the information they need to have an abortion. Nobody can question them about this. They are able to do that. They have the right to seek abortion if the pregnancy constitutes a risk to their health or life. So, according to law, doctors have the obligation to help women and provide them with abortion services if the pregnancy is risky for them. They also have the obligation to act in this way if the pregnancy is a result of an illegal act, rape, or incest. In these circumstances, women should know that they have the right to request and demand abortion if pregnancy is risky for them; any risk to their health or life, including risks to mental health. In fact, the abortion law at the moment does not list what conditions could present a risk to health and as we know, should be interpreted really widely according to the WHO definition. We do actually have rights to access to abortion in Poland and especially the power relations between healthcare professionals and patients are not straightforward. We need to be assertive when we go and seek these kinds of services from healthcare providers.
CT: Thank you for such a comprehensive answer and overview about women’s rights in respect of abortion in Poland currently. Firstly, I wanted to thank you so much for joining us today; your contribution was very valuable, and I hope our listeners can now understand more about abortion rights in Poland, their evolution, and the approaches to the law. If our listeners wanted to learn more about abortion more widely in Poland, where can they do so?
AK: I think there are many online sources which talk about abortion law in Poland. There is obviously my research. This is available, most of it is open source and available online. I wrote articles about the past and the historic developments of abortion law and also recent developments in Poland. There are many other scholars who write about abortion law in Poland in English but also there are many organisations which provide and have databases concerning the situation in Poland, many media outlets as well. I think the organisations and NGOs which should be noted here are Abortion Without Borders, the Abortion Dream Team and Federation for Women and Family Planning. All of those support women in their pursuit of reproductive rights in Poland.
CT: Brilliant, thank you so so much for joining us.
AK: Thank you, it was a real pleasure and I hope it gave you a little bit of background and a more comprehensive information about the situation in Poland and its future. Thank you so much.
CT: In this week’s feminist news roundup, a UN Humanitarian Group is hopeful that the Taliban will reauthorize Afghan women to work with NGOs following last month’s ban. The view of the organisation is that women are ‘central, essential workers in the humanitarian sector, in addition to having rights and we need to see them back to work’.
CJ: Also in today’s news roundup, an alleged victim in the case of Andrew Tate has told prosecutors that she was forced to earn minimum €10,000 per month on social media platforms or else she might be subjected to physical violence. The testimony appeared in the court document and also outlined that the group might publish videos and photos of the alleged victim if she tried to quit.
CT: Finally, a Hungarian start-up began testing and developing a new bodysuit to reduce period pains two years ago. The bodysuit called Artemis will be available in the UK and the EU for the first time later this year and hopefully relieve women of period pains using heat panels and gel pads.
CJ: If you have any suggestions for this podcast, let us know directly via email at contact@feministlaw.org.
CT: Please also visit our website at feministlaw.org and follow us on Instagram and LinkedIn to keep up to date with our latest articles, podcasts, newsletters and exciting news.
CJ: The music for this podcast was sourced from Pixabay.com.
CT: Thanks for listening!
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Transcribed by: Clara Topiol