WARSAW, POLAND — Poland’s top court ruled Thursday that a law allowing abortion of fetuses with congenital defects is unconstitutional, shutting a major loophole in the predominantly Catholic country’s abortion laws that are among the strictest in Europe.
Two judges in the 13-member constitutional Court did not back the majority ruling. Activists deplored the decision, and the Council of Europe’s human rights commissioner wrote on Twitter that it was a “sad day for women’s rights.”
The decision came in response to a motion from right-wing lawmakers who argued that terminating a pregnancy due to fetal defects — the most common reason cited for legal abortions in Poland — violates a constitutional provision that calls for protecting the life of every individual.
It also argued that terminating pregnancy due to defects of the fetus amounted to eugenics — a 19th century notion of genetic selection that was later applied by the Nazi Germans in their pseudo-scientific experiments.
The challenged law was introduced by Poland’s young post-communist democracy in 1993 as a hard-won compromise between the influential Catholic Church and the state authorities. It allows abortions when a pregnancy endangers a woman’s health or life, or results from rape or other illegal act, and also in case of congenital defects. Even before Thursday’s ruling, many Polish women have sought abortions abroad.
Health Ministry figures show that 1,110 legal abortions were held in Poland in 2019, mostly because of fetal defects.
In justifying its decision, the court said “there can be no protection of the dignity of an individual without the protection of life.”
The verdict was announced by the court’s president, Julia Przylebska, a loyalist of the right-wing government that is focused on family and Catholic values.
Police guarded the court’s building as groups of pro-abortion rights and anti-abortion activists gathered outside as the verdict was announced. The groups were small, because anti-COVID-19 regulations ban gatherings of more than 10 people.
Abortion rights groups held demonstrations earlier this week and international human rights organizations had argued against further restricting abortions.
Council of Europe Commissioner for Human Rights Dunja Mijatovic deplored the decision.
“Removing the basis for almost all legal abortions in .Poland amounts to a ban & violates .HumanRights,” she tweeted. “Today’s ruling of the constitutional Court means underground/abroad abortions for those who can afford & even greater ordeal for all others. A sad day for .WomensRights.”
Former European President and Poland’s former prime minister, Donald Tusk, criticized the timing of such key ruling during the difficult time of the pandemic.
One of the judges who did not back the ruling, Leon Kieres, argued he was mindful of the situation and condition of women when deprived of the right to decide about a pregnancy with defects.
Polish lawmakers considered legislation earlier this year that would have imposed a near-total ban on abortion by outlawing the procedure in cases of fetal abnormalities, even when a fetus has no chance of survival. They ended up postponing a final vote on the proposal brought by a Catholic group. Similar efforts also were mothballed in the past following mass protests that are not possible now under the anti-COVID-19 regulations.