Polish Abortion Legal Framework after the Judgment of the Constitutional Court of 22 October 2020 in case no. K 1/20: Impact on Doctors.

Abstract

In 2020, the rules governing the practice of abortion in Poland were narrowed and became some of the strictest in Europe. These new rules were the result of the Constitutional Court's oral announcement of its judgment in case K 1/20, making abortion for embryo-pathological reasons illegal. Thus, terminations of pregnancy in cases where prenatal tests and other medical findings indicated a high risk of a severe and irreversible damage to the foetus, or an incurable life-threatening ailment of the foetus, which in 2018 accounted for approximately 98% of all abortions in Poland, were declared illegal. In the Constitutional Court's written opinion, however, the court included a statement that may constitute a basis for broader interpretation, namely, that reasons of an embryo-pathological nature, insofar as they pose a threat to the life or health of the pregnant woman, may constitute a basis for legal termination of a pregnancy on the grounds of "the mother's well-being." But it is not clear in the Court's opinion how many doctors (and of what specialties) should make the relevant evaluation that would constitute sufficient legal justification for a decision to perform a legal abortion, thereby mitigating the risk of facing legal liability for terminating a pregnancy. For these reasons, doctors are likely to bear the burden that should have been placed on the legislators, who are, after all, obliged to consistently and exhaustively consider all the factual situations that are bound to happen in medical practice. Such factual situations should be addressed by thoughtful legislation instead of subjecting physicians to potentially unorthodox or free interpretation of laws falling short of meeting the actual needs of their patients.