Experts: European Parliament’s Resolution Against Polish Ban on Eugenic Abortion Is Illegal

The resolution, regarded by many commentators as an inappropriate interference in the affairs of the Polish people, will be subject to legal counterattacks.

A Pro-life protestor holding a placard saying "Yes to life" demonstrates in front of Poland's constitutional court who is expected to issue a ruling that could lead to an almost total ban on abortion in Warsaw on October 22, 2020.
A Pro-life protestor holding a placard saying "Yes to life" demonstrates in front of Poland's constitutional court who is expected to issue a ruling that could lead to an almost total ban on abortion in Warsaw on October 22, 2020. (photo: Wojtek Radwanski / AFP/Getty)

The Nov. 26 resolution issued by the European Parliament as a reaction to the Polish Constitutional Court’s decision that abortion for fetal abnormalities is unconstitutional was interpreted by pro-life advocates as a severe attack on a national legal system.

Through this resolution, the pro-abortion majority at the European Parliament is asking the European Commission to trigger the rule of law mechanism against Poland by suspending funds to the country until it agrees to liberalize abortion — something that would require Poland to modify its constitution.

The Catholic Church in Poland — which was the target of multiple attacks from pro-abortion activists during the wave of popular protests that shook the country in November — responded to the resolution through the leadership of Archbishop Stanisław Gądecki, president of Poland’s Bishops’ Conference, who took a stance in defense of the Constitutional Court’s ruling.

In particular, Archbishop Gądecki challenged the title of the resolution, “On the de facto ban on the right to abortion in Poland” for being misleading since, as he wrote in his Dec. 2 statement, “there is no ‘right to abortion’ either from an ethical standpoint or in international law.”

Furthermore, the archbishop of Poznań recalled that the EU Charter of Fundamental Rights, to which the resolution referred several times, declares that “everyone has the right to life” (Article 2).


Illegitimate Interference

In a December interview with the Register, Father Paweł Rytel-Andrianik, the director of the Office for Foreign Communication of the Polish Bishops’ Conference, claimed that, in this sense, the European Parliament “violated its own principles,” pointing out that the European Commission has been repeatedly communicating that “regulations regarding the protection of human life do not fall within the competences of the European Union, as there are no binding treaties in this sense.”

The legal foundations of the European Parliament’s resolution, approved by a vote of 455-145, were also questioned by several pro-life activists and lawyers. The Ordo Iuris Institute for Legal Justice, a Polish legal organization of academics and legal practitioners promoting the defense of human dignity, has already announced that it would file a motion against the resolution at the Court of Justice of the European Union for being incompatible with the EU’s primary law.

The institute — which is quoted in the resolution and accused of having an influence over Andrzej Duda’s conservative government in Poland — also mentioned a possible lawsuit against the EU, denouncing an illegal attempt to exert political pressure on Poland.

“This resolution is entirely political and ideological; it has no legal foundation,” Tymoteusz Zych, the vice president of the institute’s board, told the Register, highlighting the fact that terms like “reproductive and sexual rights,” mentioned several times in the resolution, have no legal value since they are not related to any international treaty.

He said this document, which he describes as being “arbitrary,” is revealing the political pressure exerted by some political groups within the EU that tend to instrumentalize national legal issues and to undermine countries’ judicial independence in order to promote Marxist and progressive ideologies, which are contrary to natural law.

“But since this resolution is only political and does not establish any violation of the rule of law on the part of the Polish authorities, I am confident that there won’t be direct and immediate consequences for our country,” Zych said.


Preventing Ideological Interference

However, despite the apparent absence of immediate risks for Poland, the Ordo Iuris Institute’s decision to take legal actions against the EU is motivated by a will to prevent this kind of political pressure from becoming systematic in the future.

“The EU was meant to be an international free trade organization between the sovereign states of the continent; it was never meant to be an ideological battlefield, and I see no future in the integration of the EU if we don’t put an end to this dynamic by preventing further developments of such a doctrine,” Zych said.

Besides, beyond the structural dangers that such ideological interferences can represent for the sustainability of the EU, Ordo Iuris’ lawyers have made it a point of honor to make the European institutions acknowledge Poles’ sovereignty as well as their conception of the dignity of life and the human person.

“The resolution says that we violated human rights, while, in reality, we are protecting them,” Zych added. “We think that through this resolution and its misleading claims, the European Parliament somehow tainted our country’s good name and that our people shouldn’t be treated like that.”

Although the popular protests against the new abortion restrictions in the country were violent and benefited from large media coverage, the Polish Constitutional Court’s decision is actually the fruit of a citizens’ initiative.

Indeed, the “Shut Down Abortion” initiative, introduced before the Polish Parliament in 2017 and that aimed at amending the 1993 law allowing abortion for malformed fetuses (which currently represent about 95% of all abortions in the country), gathered some 900,000 signatures. It is thus as a result of significant popular pressure that the Parliament decided to follow up on this petition and asked the Constitutional Court to examine the matter and prepare a verdict.

But the fact that the whole procedure took three years attests, according to Kaja Godek, president of the Life and Family Foundation and a promoter of the initiative, to a reluctance on the part of the Polish government to make that move. “We defended the bill at the Parliament, and we organized a lot of initiatives in the field of social activism to induce the government to take actions against eugenic abortion, but the politicians were extremely slow,” she told the Register.

The mother of a child with Down syndrome, who was encouraged to get an abortion when she found out about her unborn child’s diagnosis, Godek has made the defense of unborn life the fight of her life. She reckons that this popular legal initiative in the country is the biggest ever and that a majority of Poles support it.

“The pro-abortion protests were massive in the first two weeks following the verdict, but they were also infiltrated by German Antifas, and they quickly blew over,” she said.

The verdict, however, still has to be officially published in the Journal of Law to come into force, although it cannot be appealed. This delay in the publication of the decision is reportedly motivated by some political pressures and divisions within the government. If the verdict were not to be published at all, Poland could be faced with a constitutional crisis.

Godek said, “The government will now have to decide whether to follow our constitution and its people or to bend to the various political pressures coming from inside and outside the country; and, for me, it will be a moment of truth.”