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WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

the UN Committee on the Elimination of Discrimination against the so-called social indications for the termination of early preg-
Women, and the UN Committee against Torture) . Legal organi- nancy, the Constitutional Tribunal – in its judgment of 28.05.1997
27
sations such as FLAC alongside the student-based legal clinics it (K 26/96) – declared the newly introduced provision unconsti-
has been associated with have played a key role in fostering knowl- tutional. Moreover, in the judgment of 7.10.2015 (K 12/14),
edge about abortion-related international law standards amongst the Constitutional Tribunal additionally ruled that a doctor who
the public as well as future professionals. Clinical teaching focused refuses a woman entitled (under the Act of 1993) to terminate
on international law and women’s human rights regulations, was a pregnancy in invoking the so-called ‘conscience clause,’ is not
able to be expanded, as (contrary to university curricula) it did not obliged to indicate to her another doctor who is ready to perform
have to undergo as intense departmental approval. Funding for an abortion. This significantly hindered access to abortion even
nd
educational trips to the European Court of Human Rights was ex- when it was legal. On the 22 of October 2020, the Constitutional
tended thanks to the FLAC and as a result, the topic of the univer- Tribunal in Poland repealed the right to an abortion on grounds of
sality of human rights and its protection began to be the leading fatal, or severe foetal impairment, leading to a situation in which
28
subject of student-led clinical conferences at various universities . Poland has become the country with the most restrictive abortion
33
As Anna Carnegie and Rachel Roth remark, the proceedings in law in Europe .
these various fora ‘laid bare the conflict between Irish abortion law The restricted access to safe abortion in Poland since 1993, which
29
and international human rights standards. The increasing pres- became even more restrictive since the ruling of Constitutional
sure on the government in Ireland did have an effect and prompted Tribunal from the 22 of October 2020, discriminated, discrim-
nd
the Oireachtas (Irish parliament) to establish a Citizens Assembly inates and will continue to discriminate against women regard-
(consisting of 99 randomly selected individuals) to deliberate on ing their access to reproductive health, understood in line with
30
a variety of issues, including the Eighth Amendment. During the definition put forward by the Beijing Platform for Action .
34
the process of the Citizens Assemblies deliberations, which had In light of this definition, the state should also permit a pregnancy
given a platform to various religious bodies and extremist organi- termination if a woman is in a bad mental state or suffers from
sations, the extensive experience the Irish universities’ legal clinics material hardship. However, Poland does not even warrant access
have in human rights activism allowed them to offer critical legal to safe abortion under much more restricted circumstances. Per-
analyses of this process. Students were able to spectate the Assem- sons theoretically entitled to legal abortion are not able to exercise
bly’s debates, thereby receiving an imminently relevant, experien- their rights in practice. Consequently, if it is only possible, women
tial knowledge of the multi-faceted character of social as well as undergo a potentially legal abortion outside the public health sys-
legislative gender discrimination. The legal assessments produced tem: in Poland (illegally) or abroad. This solution is not available
at the time, highly critical of this process and firmly convinced that to women with limited financial means, to those who do not have
human rights should not be subject to public opinion, were essen- access to the information on the subject, women with limited
tial in soliciting the societal shift towards a pro-choice stance that life decision-making abilities or those who lack the proper organ-
eventually made the retraction of the Eighth Amendment possible izational support, i.e. who are not able to arrange child-care for
in the 2018 referendum. the time required for the procedure.
Hence, even though more than fifty years ago the situation re- Such a restrictive law has also a chilling effect resulting in a sit-
garding reproductive rights in Poland was something that Ireland’s uation where doctors not only shirk the performance of abor-
abortion rights activists were looking to aspiringly, today, the cir- tion but also resort to numerous tactical actions aiming at pre-
cumstances are reversed and as Ireland was moving towards a pro- venting legal abortion from being performed at all health care
choice future, Poland returned into a firm anti-choice era and era centres in the country. This can involve for example ignoring se-
which violates women’s rights. The 1993 Abortion Act in Poland rious health problems of women and/or not informing them on
35
excluded an abortion on “social grounds” and for almost 30 years their actual health condition , risk related to the continuation of
36
made the termination of a pregnancy legal under three, very nar- the pregnancy , their rights, or the health of the foetus. Girls and
rowly defined circumstances , which made the 1993 Act very re- women needing an abortion are thus not equal to men in terms
31
strictive and resulted in a dramatic situation for women . Various of exercising basic patients’ rights, including the right to health,
32
attempts to relax this legislation have failed. For example, when in the right to adequate information, or the right to privacy that
1996 the Polish Parliament voted to reintroduce into the 1993 Act, covers the right to decide about health issues and to choose one’s
treatment.
27 ‘FLAC supports the repeal of the Eighth Amendment’ (May 18, 2018) <https://
www.flac.ie/news/2018/05/18/flac-supports-the-repeal-of-the-eighth-amend-
ment/> (accessed 23.9.2021).
28 ‘FLAC Student Societies’ <https://www.flac.ie/getinvolved/student/> (accessed
19.9.2021).
29 Anna Carnegie, Rachel Roth, ‘From the Grassroots to the Oireachtas: Abor-
tion Law Reform in the Republic of Ireland’ in Health and Human Rights Journal
(December 9, 2019). 33 Case Nr K 1/20. Many aspects of the Constitutional Tribunal’s ruling from
30 Ibid. the 22 of October 2020 have been analised and presented in an issue of the Pol-
nd
31 Under the 1993 Act, a pregnancy may be legally terminated only under the fol- ish publication Państwo i Prawo (2021, Nr. 8) devoted exclusive to this issue.
lowing three circumstances: 34 The outcome document of the IV World Conference on Women, 1995, par. 94:
(1) where a woman’s life or health is at risk by the continuation of a pregnancy, Reproductive health is a state of complete physical, mental and social well-be-
provided this has been attested by a doctor other than the doctor who performs ing and not merely the absence of disease or infirmity, in all matters relating
an abortion, to the reproductive system and to its functions and processes. Reproductive
(2) where prenatal examinations or other medical reasons attested by a doctor health therefore implies that people are able to have a satisfying and safe sex life
other than the doctor who performs an abortion, indicate that a fetus is substan- and that they have the capability to reproduce and the freedom to decide if, when
tially and irreversibly impaired or that a fetus suffers from a serious and incurable and how often to do so. Reproductive health therefore implies that people are able
life-threatening illness, to have a satisfying and safe sex life and that they have the capability to reproduce
(3) where there is a reasonable suspicion, confirmed by a prosecutor, that and the freedom to decide if, when and how often to do so.
the pregnancy results from a prohibited act. 35 Z. v. Poland, ECHR application no. 46132/08, par. 103.
32 See cases in para 38. 36 Ibid.
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