The Constitutional Tribunal in Poland has ruled to ban abortions in cases of foetal deformity, which constitute the majority of the small number of legal abortions in the country. This judgement is in keeping with the deterioration of abortion rights and access to abortion that has plagued the world in this decade.
Written by Aarushi Ahluwalia
Yestersay, the Constitutional Tribunal in Poland ruled to disallow abortion in cases of a foetal deformity leading to the women of Poland rising up in protest. As it stood prior to this ruling, Poland already had among the harshest abortion laws in Europe with only a 1000 legal abortions occurring last year and many women having to travel outside the country to have abortions. Of these 1000 legal abortions, 98% were cases of foetal deformity which means that rape, incest or the health of the mother which comprise the extent of the grounds for legal abortion in Poland made up only 2 out of 1000 cases. The Council of Europe for Human Rights has called it a sad day for Women’s Rights, but it’s not just a sad day, it’s been a sad decade for women’s rights all over the world (except in Australia where I believe they have made some strides this decade in some states after striking down a 119-year old law).
In the 1970s, legislative progress was made on the subject of abortion in many parts of the world. India passed the Medical Termination of Pregnancy (MTP) Act into law on the recommendation of the Shah Committee in 1971. The United States of America’s Supreme court delivered a landmark judgement in Roe v. Wade in 1973. The laws passed at the time had their problems but were important victories on the path to women having more legal control over our bodies, and if they had been developed over the years guided only by scientific input, legal precedent and the goal of expanding women’s rights we wouldn’t be where we are today. Instead in most countries around the world abortion law has been governed by morality-based and religion-influenced politics which is what has led to a law as draconian as Poland’s ban on abortion in cases of foetal deformity and the continuation of abortion laws as restrictive as those in Northern Ireland.
In 2019, the Alabama Supreme court in USA banned all abortions in the state and implemented into law that any physician performing abortions would be liable to spend up to 99-years in prison. Even as the governor of Alabama admitted that there was no way to enforce this bill given the federally applicable precedent of Roe v. Wade, she signed it into law. Five other states in the US have prohibited abortion after 6-weeks at which point most women don’t even know that they are pregnant. With the election looming in the United States, the Republicans are moving at a record pace to confirm conservative judge Amy Comey Barrett to Justice Ruth Bader Ginsberg’s empty seat on the Supreme Court after she passed earlier this year. This has led many around the country to speculate that the 6-3 conservative-majority on the bench would attempt to reverse the judgement on Roe v. Wade and criminalize abortion all over the country. To me this only begs to question whether a law about women’s health should be deliberated with a bias based in religious morality as opposed to a legally-evaluated standing of the arguments in favour and people in support of the law and whether a judge should even been allowed to retain their political affiliation once appointed to a court.
In India, the Chandigarh High Court ruled in 2017 to disallow the termination of pregnancy by a 10-year old girl who had been repeatedly raped by her uncle. They cited the aspect of the MTP Act that serves to enforce “safe and medically sound” abortions which was incorporated to curb the rampant maternal mortality in India in the 1960s and 70s. Abortion law is complex and governed by different political factors in each country. In India for instance, we have reasonably liberal laws when it comes to abortion. The MTP Act allows abortion up to 20-weeks, after 12-weeks abortion needs to be recommended by two doctors and it can be performed by a medial physician at any government hospital and all certified private hospitals. Medical abortion (which involves pills like mifepristone and misoprostol) is legal up to 9-weeks and surgical abortion (either through D&C or vaccum aspiration) up to 20 weeks. There is some ambiguity as to the grounds on which one can have an abortion, though. There are four grounds on which a woman may avail termination services: Grave risk to the mental and physical health of the mother, rape and incest, and contraceptive failure in the case of married women.
It is unclear under this law whether unmarried women can actually avail the right to abortion in case of contraceptive failure. It is also unclear how grave mental risk is evaluated. In effect, however, hospitals will rarely ask women (to prove) if they are married or refuse an abortion to a woman who was unable to or chose not to have a contraceptive plan. In effect these laws should work better however unsafe abortion practices continue in India as do unwanted pregnancies and that is because instituting law is not enough if the rights of a person are not accessible to them. Access to abortions is limited by factors much greater than just the law.
In India, for instance, it is limited by the lack of reproductive autonomy that is extended to women. A woman is more likely to be made to have an abortion because the second child is female than if she herself does not wish to have a third child. Even within a family the reproductive decisions are not made by the woman nor are the contraceptive ones. With outreach programmes more women are being provided safe contraception in India than ever but women often don’t have the agency to insist on their use or the disposable income to continue buying them once the free strips are over. While financially abortions are extremely accessible in India especially at government facilities, medical services themselves remain to be inaccessible to people who live outside big towns and cities. In the United States, the accessibility to abortion is cut off financially as well as socially. Most insurance companies will not cover abortions and even a medical abortion can cost over twenty-times what it does in India. Additionally, protests around medical facilities that perform abortions eventually do succeed to a small extent in dissuading women wanting to avail terminations from being able to do so.
In this environment all over the world, laws like Poland don’t come as a surprise anymore. We have started to walk backwards as a group and when we look around the world and see that many others are doing what we do, we are emboldened. We are in political state of being where the conservative, traditionalist mind-set is emboldened by its ability to get away with stepping on the necks of women and minorities. This precedent that we are setting serves as an example to the right-wing leaders of countries like Brazil that still criminalizes abortion in all forms except in cases of rape and grave physical harm to the woman. The law of one nation influences the law of another. That is how it works. How various civilizations around us at a given moment feel about an issue influences how we feel about it, and at this moment we feel like it is okay to start taking rights away from women again.
It’s a bad moment.
A sad day for women’s rights, indeed.
I wonder what condescending retronym future historians will give it. I hope they make it really nasty.
Read more of my coverage on abortion law in India for The Quint.
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