The Constitutional Tribunal (or what is left of it) ruled today, October 22, 2020 (let us remember this date!), that the provisions regulating the conditions for permissible termination of pregnancy are unconstitutional. This means in practice that abortion in a situation where there is a high probability of severe and irreversible fetal disability or an incurable disease threatening its life will be illegal in Poland.
Leaving aside the political and legal storm this will cause, it is worth paying attention to the criminal law consequences of this ruling. The Criminal Code does not penalize the woman herself for having an abortion, but only persons who perform such a procedure – contrary to regulations – or assist in it or incite it (Art. 152-154 of the Criminal Code). This is an obvious measure to make such actions as difficult as possible for women.
Now, in the context of today’s Constitutional Tribunal ruling, it is worth recalling that Art. 152 § 2 of the Criminal Code penalizes persons who help a woman terminate a pregnancy in violation of the law. It should now be expected that this provision will be restrictively applied by law enforcement to combat the phenomenon of “abortion trips,” i.e., women’s trips aimed at undergoing an abortion in countries where it is possible without such restrictions as in Poland.
Art. 152 § 2 of the Criminal Code is a formal crime – meaning its application is independent of whether the pregnancy was actually terminated, and it is a universal crime – meaning anyone can commit it. We are talking about persons who help a woman realizing such intent by providing means of transport, driving, providing information, helping search for information, or covering the costs of the procedure.
How will this work in practice? We will find out soon. In any case, I assume that lawyers can prepare for a greater number of criminal cases involving assistance in performing an abortion. There will probably also be legal questions about how and in which country women can have an abortion without violating the law and without exposing their loved ones to the threat of criminal liability.
Paweł Osiński
Attorney
Contact: office@osinski-legal.com