Debate: The de facto abortion ban in Poland
Date: TUESDAY, 9 FEBRUARY 2021
Speaker: Ana Paula Zacarias
Language: EN

On 27 January, the Polish Constitutional Tribunal ruling of last October which restricted abortion to cases of fatal defects came into effect. This has prompted a wave of women’s demonstrations in several Polish cities, as was the case last November.  Abortion and reproductive rights are highly sensitive and complex issues across Europe, including from a legal perspective. The European Court of Human Rights has consistently ruled that the Council of Europe member states enjoy a wide margin of appreciation as to whether and under what circumstances abortion is permitted under their national law. But once a member state decides to allow abortion, it has, according to the European Court of Human Rights, a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right to have access to lawful abortion, in compliance with relevant provisions of the European Convention on Human Rights. As far as the European Union is concerned, primary law confirms that Union law in principle does not interfere with constitutional provisions and other national legislation of EU Member States relating to abortion. The Charter of Fundamental Rights does not provide an autonomous right to abortion, even though it contains various rights that are potentially relevant for reproductive matters. Pursuant to Article 51(1) of the Charter, these rights apply only when Member States are implementing Union law. In accordance with Article 168(7) of the Treaty on the Functioning of the European Union, Union action in the field of public health should respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. In this regard, the European Pillar of Social Rights states that everyone has the right to timely access to affordable, preventive and corrective health care of good quality. Indeed, the EU has no competence on abortion policy. But as a woman and as a member of a government, I would affirm that women’s rights are fundamental human rights and that sexual and reproductive health rights are at the core of gender equality and human rights. Also, the Union has a strong policy in terms of gender equality with a cross-cutting approach to all policies. The Council has in several instances reaffirmed the EU’s commitment to the promotion, protection and fulfilment of the right of every individual to have full control over, to decide freely, and to have full responsibility on matters related to their sexuality and sexual and reproductive health; free from discrimination, coercion and violence. In this regard, let me stress that we certainly need a gender—sensitive approach in our responses now more than ever, and I thank the Commission for all the initiatives and actions included in this gender-equality agenda. The Presidency also calls for support for women’s NGOs in their advocacy role, ensuring that they can access EU funds – including those of the European Social Fund – in the new programming period, the rights, equality and citizenship programme, and other funding and schemes.