Even Legal Abortion Is Hard to Access in Poland

Anna Wilkowska-Landowska

Abortion in Poland is legal when the mother's life or health is at risk, in cases of fetal malformation, or when pregnancy is a result of a crime, and a clear majority of Poles support access to abortion in these cases. So why is accessing legal abortion so difficult?

Poland is one
of a very few European countries with highly restrictive anti-abortion
law; it could be compared only with regulations existing in Ireland
and Malta. The currently binding Act on Family Planning,
Protection of the Human Foetus and Conditions for Termination of Pregnancy
defines the conditions
permitting the termination of pregnancy. It stipulates, above all, that termination can occur with the consent of the woman only in
the following three cases: (a) When the pregnancy constitutes a risk
to the life or health of the pregnant woman; (b) Prenatal tests or other
medical evidence indicate a high probability of severe and irreversible
disability to the fetus or an incurable illness threatening its life;
(c) The existence of a justified suspicion that the pregnancy arose
as a result of a crime.

Having such
a strict law in force, the Poles’ opinions about the legal regulation
of abortion are intriguing; even more so if you take into consideration
the fact that Poland is a Catholic country and a Catholic doctrine prohibits
abortion without any exceptions. The most recent public opinion polls
show
that proportions
of those who believe that abortion should be legal (overall 47%) and
those who are oppose legalization (45%) are almost equal. Thirty-five percent of respondents think that abortion should be legal, although with certain restrictions, and 12% oppose any restrictions. For those who think abortion should be outlawed, 32% believe there should be certain exceptions, and 13% opt for an absolute
ban on terminating pregnancy. Public
opinion polling from September 2007 shows that half of Polish adult population
accepts that a woman – if she so decides – should have a right to
abortion during the first weeks of her pregnancy.

So
generally Poles accept terminating pregnancy in the situations in
which the current regulations allow it. The belief that abortion should
be possible when the mother’s life or health is in danger is almost
universal. A vast majority of the respondents also believe that abortion
should be legal when pregnancy is a result of rape or incest. Moreover,
the opinions about acceptability of abortion when the mother’s life
or health is in danger or when the pregnancy is a result of rape or
incest practically did not change between 1992 and 2007. A clear majority
have always supported the view that abortion should be legal in such
cases.

But, even though
the law allows for three fundamental reasons to legally terminate
pregnancy, and the majority of Polish population supports legal abortion in certain circumstances, in practice,
women do not have real abortion access. Because there is still a social stigma attached to performing abortions, very often doctors refuse care using a "conscience clause." They are also afraid to perfom abortions because it is a criminalized
action, if perfomed outside a specified exceptions. Doctors tend not to refer women to other doctors and there is no clear
mechanism in place which would help women to get an urgent assistance
and where they could apply for a final decision.

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The practical application
of the existing law has been dealt with many times by the United Nations
organs: the UN Human Rights Committee, which monitors state compliance
with the International Covenant on Civil and Political Rights, has been
stating in its reports that the despite legalization in certain circumstances, actual access to abortion
has not been changed. Just recently, in April 2008, the
UN Human Rights Council
put pressure
on Poland with regard to abortion — Norway
requested elaboration on what is done to facilitate access to abortion
for women who qualify for this under the Polish law.

Looking closer
at the recent cases pursued both by the national as well as international
courts, we see that the limited access to abortion may be somehow ‘cured’ by
applying the court rulings which also directly constitute a guideline
as to how women whose rights have been violated can exercise their rights.
Here, the ruling of the European Court of Human Rights in Tysiąc
vs. Poland
, could serve as an example of a successfully resolved case on the protection
of reproductive health.
Alicja Tysiac was denied abortion because doctors
couldn’t see the direct link between her pregnancy and deterioration of
her eyesight. But because the anti-abortion law mentions a ‘threat’ to health and not
certainty, the European Court of Human Rights ruled that Alicja’s right to private life was violated. She
should have been able to decide whether or not to have an abortion because her health was at stake.

But execution of the judgment includes also making appropriate changes
in the law to guarantee that similar violations of human rights will
not occur in the future. The European
Court of Human Rights found that the Polish legal framework did not
provide an effective mechanism to resolve disagreements as to the availability
or legality of therapeutic termination in any case, either between a
pregnant woman and doctors or between medical staff themselves. Therefore, an effective appeal
mechanisms which would make it possible to obtain binding and final
decisions related to termination of pregnancy should be introduced in
the Polish system. The Polish Government has not yet presented
any plan of reform, but the case inevitably created a firm basis for
further developments in this area.

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

Commentary Human Rights

When It Comes to Zika and Abortion, Disabled People Are Too Often Used as a Rhetorical Device

s.e. smith

Anti-choicers shame parents facing a prenatal diagnosis and considering abortion, even though they don't back up their advocacy up with support. The pro-choice movement, on the other hand, often finds itself caught between defending abortion as an absolute personal right and suggesting that some lived potentials are worth more than others.

There’s only one reason anyone should ever get an abortion: Because that person is pregnant and does not want to be. As soon as anyone—whether they are pro- or anti-choice—starts bringing up qualifiers, exceptions, and scary monsters under the bed, things get problematic. They establish the seeds of a good abortion/bad abortion dichotomy, in which some abortions are deemed “worthier” than others.

And with the Zika virus reaching the United States and the stakes getting more tangible for many Americans, that arbitrary designation is on a lot of minds—especially where the possibility of developmentally impaired fetuses is concerned. As a result, people with disabilities are more often being used as a rhetorical device for or against abortion rights rather than viewed as actualized human beings.

Here’s what we know about Zika and pregnancy: The virus has been linked to microcephaly, hearing loss, impaired growth, vision problems, and some anomalies of brain development when a fetus is exposed during pregnancy, according to the Centers for Disease Control and Prevention. Sometimes these anomalies are fatal, and patients miscarry their pregnancies. Sometimes they are not. Being infected with Zika is not a guarantee that a fetus will develop developmental impairments.

We need to know much, much more about Zika and pregnancy. At this stage, commonsense precautions when necessary like sleeping under a mosquito net, using insect repellant, and having protected sex to prevent Zika infection in pregnancy are reasonable, given the established link between Zika and developmental anomalies. But the panicked tenor of the conversation about Zika and pregnancy has become troubling.

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In Latin America, where Zika has rampantly spread in the last few years, extremely tough abortion restrictions often deprive patients of reproductive autonomy, to the point where many face the possibility of criminal charges for seeking abortion. Currently, requests for abortions are spiking. Some patients have turned to services like Women on Web, which provides assistance with accessing medical abortion services in nations where they are difficult or impossible to find.

For pro-choice advocates in the United States, the situation in Latin America is further evidence of the need to protect abortion access in our own country. Many have specifically using Zika to advocate against 20-week limits on abortion—which are already unconstitutional, and should be condemned as such. Less than 2 percent of abortions take place after 20 weeks, according to the Guttmacher Institute. The pro-choice community is often quick to defend these abortions, arguing that the vast majority take place in cases where the life of the patient is threatened, the fetus has anomalies incompatible with life, or the fetus has severe developmental impairments. Microcephaly, though rare, is an example of an impairment that isn’t diagnosable until late in the second trimester or early in the third, so when patients opt for termination, they run smack up against 20-week bans.

Thanks to the high profile of Zika in the news, fetal anomalies are becoming a talking point on both sides of the abortion divide: Hence the dire headlines sensationalizing the idea that politicians want to force patients to give birth to disabled children. The implication of leaning on these emotional angles, rather than ones based on the law or on human rights, is that Zika causes disabilities, and no one would want to have a disabled child. Some of this rhetoric is likely entirely subconscious, but it reflects internalized attitudes about disabled people, and it’s a dogwhistle to many in the disability community.

Anti-choicers, meanwhile, are leveraging that argument in the other direction, suggesting that patients with Zika will want to kill their precious babies because they aren’t perfect, and that therefore it’s necessary to clamp down on abortion restrictions to protect the “unborn.” Last weekend, for instance, failed presidential candidate Sen. Marco Rubio (R-FL) announced that he doesn’t support access to abortion for pregnant patients with the Zika virus who might, as a consequence, run the risk of having babies with microcephaly. Hardline anti-choicers, unsurprisingly, applauded him for taking a stand to protect life.

Both sides are using the wrong leverage in their arguments. An uptick in unmet abortion need is disturbing, yes—because it means that patients are not getting necessary health care. While it may be Zika exposing the issue of late, it’s a symptom, not the problem. Patients should be able to choose to get an abortion for whatever reason and at whatever time, and that right shouldn’t be defended with disingenuous arguments that use disability for cover. The issue with not being able to access abortions after 20 weeks, for example, isn’t that patients cannot access therapeutic abortions for fetuses with anomalies, but that patients cannot access abortions after 20 weeks.

The insistence from pro-choice advocates on justifying abortions after 20 weeks around specific, seemingly involuntary instances, suggests that so-called “late term abortions” need to be circumstantially defended, which retrenches abortion stigma. Few advocates seem to be willing to venture into the troubled waters of fighting for the right to abortions for any reason after 20 weeks. In part, that reflects an incremental approach to securing rights, but it may also betray some squeamishness. Patients don’t need to excuse their abortions, and the continual haste to do so by many pro-choice advocates makes it seem like a 20-week or later abortion is something wrong, something that might make patients feel ashamed depending on their reasons. There’s nothing shameful about needing abortion care after 20 weeks.

And, as it follows, nor is there ever a “bad” reason for termination. Conservatives are fond of using gruesome language targeted at patients who choose to abort for apparent fetal disability diagnoses in an attempt to shame them into believing that they are bad people for choosing to terminate their pregnancies. They use the specter of murdering disabled babies to advance not just social attitudes, but actual policy. Republican Gov. Mike Pence, for example, signed an Indiana law banning abortion on the basis of disability into law, though it was just blocked by a judge. Ohio considered a similar bill, while North Dakota tried to ban disability-related abortions only to be stymied in court. Other states require mandatory counseling when patients are diagnosed with fetal anomalies, with information about “perinatal hospice,” implying that patients have a moral responsibility to carry a pregnancy to term even if the fetus has impairments so significant that survival is questionable and that measures must be taken to “protect” fetuses against “hasty” abortions.

Conservative rhetoric tends to exceptionalize disability, with terms like “special needs child” and implications that disabled people are angelic, inspirational, and sometimes educational by nature of being disabled. A child with Down syndrome isn’t just a disabled child under this framework, for example, but a valuable lesson to the people around her. Terminating a pregnancy for disability is sometimes treated as even worse than terminating an apparently healthy pregnancy by those attempting to demonize abortion. This approach to abortion for disability uses disabled people as pawns to advance abortion restrictions, playing upon base emotions in the ultimate quest to make it functionally impossible to access abortion services. And conservatives can tar opponents of such laws with claims that they hate disabled people—even though many disabled people themselves oppose these patronizing policies, created to address a false epidemic of abortions for disability.

When those on either side of the abortion debate suggest that the default response to a given diagnosis is abortion, people living with that diagnosis hear that their lives are not valued. This argument implies that life with a disability is not worth living, and that it is a natural response for many to wish to terminate in cases of fetal anomalies. This rhetoric often collapses radically different diagnoses under the same roof; some impairments are lethal, others can pose significant challenges, and in other cases, people can enjoy excellent quality of life if they are provided with access to the services they need.

Many parents facing a prenatal diagnosis have never interacted with disabled people, don’t know very much about the disability in question, and are feeling overwhelmed. Anti-choicers want to force them to listen to lectures at the least and claim this is for everyone’s good, which is a gross violation of personal privacy, especially since they don’t back their advocacy up with support for disability programs that would make a comfortable, happy life with a complex impairment possible. The pro-choice movement, on the other hand, often finds itself caught between the imperative to defend abortion as an absolute personal right and suggesting that some lived potentials are worth more than others. It’s a disturbing line of argument to take, alienating people who might otherwise be very supportive of abortion rights.

It’s clearly tempting to use Zika as a political football in the abortion debate, and for conservatives, doing so is taking advantage of a well-established playbook. Pro-choicers, however, would do better to walk off the field, because defending abortion access on the sole grounds that a fetus might have a disability rings very familiar and uncomfortable alarm bells for many in the disability community.

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