This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland

 

Main theses:

In Poland, there is a general ban on abortions, and the law specifies exceptions to this rule. This is the so-called “medical indication model,” which excludes abortion at the woman’s request.
In July 2024, leftist parties attempted an amendment to legalize abortion on demand, but the Sejm failed to pass the bill with a majority vote.
Having failed to amend the existing law in the Sejm, the Minister of Health has been unlawfully “in-structing” doctors on how to interpret the current legislation to make legally prohibited abortion on demand a reality.
The Health Minister’s actions violate a number of constitutional provisions, primarily the principle of adher-ence to the law.

Introduction

On July 12, 2024, abortion on demand lost in the Sejm. By a small number of votes, deputies decided that the bill to amend the Criminal Code (parliamentary print No. 176), authored by the Left, would not be fur-ther processed. However, this did not end the efforts of this group and other ruling coalition politicians to make so-called abortion on demand possible in Poland. Given the law in force in Poland, such abortions re-main illegal, however. Steps are actually being taken in the government to result in real access to abortion on demand in Poland. These actions include, in particular, the issuance by the Minister of Health of its un-lawful “Guidelines on the applicable legal provisions on access to the termination of pregnancy procedure” (hereinafter referred to as the: “Guidelines”), which were announced by government officials at a press conference on August 30, 2024.

Purpose of the Guidelines

The aim of the Ministerial Guidelines is to open the way to broad access to abortion in Poland, including to so-called “abortion on demand” mentioned in the introduction, where the decision to terminate a pregnancy is not supported by any medical indications, but only by a woman’s will. This premise alone constitutes a revolution in the Polish legal system, since the law adopted by the legislature governing the permissibility of abortions is based on the so-called medical indication model. The essence of this model is the assumption that “throughout pregnancy, the conceived child is subject to legal protection, constitutes a legal good; consequently, a woman who is the de facto possessor of this good is not entitled to dispose of this good on her own. What conditions must be met in order for a pregnancy to be terminated, and whether they have occurred in a particular case, is determined by an authority of the state. The will of the woman – however necessary a condition – is not a sufficient condition.”

The content of the Guidelines does not undermine existing legal solutions – as the law in this regard has not changed in any way. This is because the provisions subjecting the conceived child to legal protection, as defined by the Constitutional Tribunal’s judgment of October 22, 2020, are still in effect. (ref. K 1/20) . However, the Guidelines have brought about a specific interpretation of selected provisions of the law, to the exclusion of others, to be followed by the personnel of hospitals where abortions are performed. To summarize the issue at hand, it can be said that the Guidelines “instruct” doctors how to understand the various provisions of the law in order to allow women to access abortion in particular on the basis of the so-called premise of risk to health, but now including mental health, the content of which is vague and gives wide room for abuse in practice. The goal is to create a de facto access to “on-demand” abortion, as mental health conditions are based on the subjective feelings of the patient and are generally not subject to objec-tive verification.

The Guidelines and the constitutional principle of adherence to the law

The issuance of the Guidelines was met with harsh criticism from a sizable portion of the legal and medical community. In particular, reservations are raised by the fact that the Guidelines in question were issued in violation of one of the main principles of the Polish legal system – formulated in Article 7 of the Polish Constitution the principle of adherence to the law, according to which public authorities act within the limits and on the basis of the law. This is because Health Minister Izabela Leszczyna does not have the au-thority to issue guidelines on applicable regulations, nor does she have the authority to make legal interpre-tations of laws. Moreover, in the current state of the law, there are no regulations under which it would be possible to issue such guidelines. Consequently, the Health Minister’s action without a legal basis and in excess of her authority constitutes a violation of the principle of adherence to the law.

The Guidelines addressed to hospital directors, ward administrators, and department heads present a spe-cific interpretation of the law, which the Tusk government expects to be applied in medical practice. How-ever, in Poland, government guidelines cannot be a source of binding law. A closed catalog of legal acts whose provisions are binding on everyone (including doctors, hospital directors, ward administrators, heads of departments, etc.) is contained in Article 87(1) of the Constitution of the Republic of Poland, stating that the sources of universally binding law of the Republic of Poland are: the Constitution, laws voted by Parlia-ment, ratified international agreements, and government decrees. The document published on the Health Ministry’s website does not fall into any of the categories listed in Article 87(1) of the Polish Constitution. The following categories do however have such power: the Constitution, laws voted by Parliament and government decrees, including those of their provisions that impose certain duties and grant rights and freedoms to doctors and other health care workers.

Furthermore, the Guidelines were addressed to entities that are not organizationally subordinate to the Minister of Health. They do not have the character of universally binding law, nor do they belong to the category of internal laws referred to in Article 93 of the Polish Constitution, but even if one were to as-sume that they fall into this category (although they do not), under the Constitution of the Republic of Po-land they would be binding only on organizational units subordinate to the body issuing the acts (Article 93(1)). Hence, the Ministry of Health’s Guidelines do not meet any of the conditions required to make them applicable. Thus, the Health Minister’s Guidelines were issued in violation of the principle of adherence to the law embodied in Article 7 of the Polish Constitution.

Because of this, from a legal point of view, no obligation arises on the part of the addressees (physicians) to comply with their content. Even worse, if and when they are applied in spite of the above considerations, these Guidelines may lead to criminal, civil and disciplinary liability of physicians. It should also be noted that the Health Minister’s Guidelines refer to clinical practice. Recommendations in this area, however, can be issued not by politicians (ministries), but by recognized scientific bodies, i.e. groups that bring together ex-perts in a particular field of medicine – in particular, “medical societies, provincial and national consultants in a particular field of medicine, working groups and teams that issue recommendations and their updates corresponding to the progress of knowledge in a particular field.” The issuance of guidelines should be preceded by credible scientific research based on appropriate methodology, and not by a political decision by the head of the health ministry, which the Supreme Medical Council sees as “an attempt to put pressure on the medical community.”

Although recommendations and guidelines issued by medical scientific societies and scientific bodies do not have legally binding force, they fall within the concept of “current medical knowledge,” the prescription of which for physicians to apply is contained primarily in Article 4 of the Law of December 5, 1996, on the professions of physician and dentist (hereinafter referred to as the: “u.z.l.”) and Article 4 of the Code of Medical Ethics (hereinafter: “KEL”) . It further follows from Article 6(1) of the Act of November 6, 2008 on Patient Rights and Commissioner for Patient’s Rights , which stipulates the right of patients to health services that correspond to the requirements of current medical knowledge. Guidelines set by expert bod-ies play a very important role in assessing whether a physician’s action meets the criterion of acting in ac-cordance with current medical knowledge. Politically motivated recommendations of the Minister of Health are devoid of such a character, hence their application in practice exposes doctors to the charge of acting contrary to the art of medicine, consequently leading to the aforementioned legal liability.

Anti-constitutional interpretation of regulations. Rights and responsibilities of doctors vs. the content of the Guidelines

The Guidelines provide an anti-constitutional interpretation of the provisions of the Law of January 7, 1993 on Family Planning, Protection of the Human Fetus and the Conditions for Permissibility of Abortion (hereinafter: “u.p.r.”) . A read-ing of the document leads to the erroneous conclusion that any pregnant woman experiencing ailments, including psycho-logical ones, has the right to request an abortion from a gynecologist on the basis of a certificate obtained from a psychia-trist, and that it is incumbent on gynecologists to carry out the recommendations of psychiatrists. Meanwhile, the current regulations do not allow such an interpretation. Although Article 4a(1) of the u.p.r. does not specify a closed catalog of health indications for termination of pregnancy, this does not entitle one to interpret that such an indication can be “any-thing,” i.e. any even minor health ailment. Such an interpretation is opposed, first of all, by the constitutional principle of protection of human dignity and life, included in Article 30 in conjunction with Article 38 of the Constitution of the Republic of Poland, as well as by the principles of limiting the exercise of constitutional rights and freedoms, which the legislator has included in Article 31(3) of the Constitution of the Republic of Poland, and which the Constitutional Tribunal has re-peatedly confirmed in its jurisprudence .

The direction adopted in the Guidelines for interpreting the so-called “health rationale” for aborting preg-nancies further violates a number of provisions of the Law on the Medical Profession (u.z.l.) – the basic legal act defining the terms and conditions for the practice of the professions of physician and dentist (Article 1 of the u.z.l.). The content of Article 4 of the u.z.l., which states that a doctor is obliged to practice his pro-fession in accordance with the indications of current medical knowledge, methods and means available to him for the prevention, diagnosis and treatment of diseases, in accordance with the principles of profes-sional ethics and with due diligence, is particularly relevant here. This provision clearly indicates that an immanent element of practicing the medical profession is to undertake medical actions with respect to the patient in a manner consistent with the principles of professional ethics – with, therefore, the provisions of the Code of Medical Ethics (KEL), which “acquire legal value in the area of generally applicable law … due to the Law on Chambers of Physicians and to the extent specified by its provisions, in particular by Article 4 of this law ” . Under these very principles, “when performing medical procedures on a pregnant woman, the doctor is simultaneously responsible for the health and life of her child. Therefore, it is the doctor’s duty to try to preserve the health and life of the child even before birth” (Article 39 of the KEL) . Under these regulations, a human being in the prenatal stage of development essentially acquires the status of a patient, whose life and health the doctor must also take care of.

No less significant objections arise from the Guidelines’ interpretation of Article 37 of the u.z.l., which as-sumes that if diagnostic or therapeutic doubts arise in a given situation, a physician may only consult with a competent specialist or organize a medical consortium. Meanwhile, the wording of the provision of Article 37 of the u.z.l. clearly stipulates that in the case of diagnostic or therapeutic doubts, the doctor, on his own initiative or at the request of the patient or the patient’s legal representative, if he considers it justified in light of the requirements of medical knowledge, should consult a competent specialist physician or organ-ize a medical consilium. This is a statutory order for a certain behavior of the doctor, for which he is re-sponsible. The phrase “may” is not the same as “should.” Since the provision explicitly states the doctor’s duty, this should be understood to mean that in a situation of doubt physician has a statutory duty to to seek the opinion of a competent medical specialist or organize a medical consultation, while the Guidelines assume that a physician’s action to obtain substantive support in a given doubtful situation constitutes a “deviation from the rule” (page 2 of the Guidelines).

Remaining in the sphere of duties, rights and freedoms of physicians, reservations should also be addressed to the interpretation of the issue of of the physicians’ conscience clause, included in Article 39 of the u.z.l. The interpretation adopted by the Minister of Health, which assumes the “extraordinary” and “exceptional” nature of invoking the conscience clause by a doctor refusing to participate in a given medical action, con-tradicts the October 7, 2015 judgment of the full Constitutional Tribunal, ref. K 12/14 and earlier con-stitutional jurisprudence preceding the official codification of the conscience clause in statutory provisions (cf. CT ruling of January 15, 1991, ref. U 8/90, as well as the CT decision of October 7, 1992, ref. U 1/92). In the justification of the cited 2015 judgment, in particular, the Constitutional Tribunal stated that “it is indisputable that Article 39 of the u.z.l. does not create a privilege for a doctor, since the freedom of con-science of every human being is a primary and inalienable category, which constitutional law and interna-tional regulations only vouch for. Freedom of conscience – including that element of it which is conscien-tious objection – must therefore be respected regardless of whether there are statutory provisions affirm-ing it.” The Tribunal also recalled that “acting in accordance with conscience in the case of physicians is not only an exercise of their constitutional freedom and the performance of a moral duty, but a statutory duty, arising from Article 4 of the u.z.l.in conjunction with Article 4 of the KEL.”

The Guidelines in question further express the view that “the so-called conscience clause is a right of the doctor only, it cannot be invoked by a medical entity” (page 6 of the Guidelines). This position, too, contra-dicts the interpretation made by the Constitutional Tribunal in the K 12/14 judgment cited above. In this judgment, citing resolution 1763 of the Parliamentary Assembly of the Council of Europe of October 7, 2010 on the right to conscientious objection in legitimate medical care, the Tribunal stated that “No per-son, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason. (…) the right to conscientious objection is very broad in both subject matter and scope, as it also includes medical providers other than individuals.” The Ministerial Guidelines, which questioned the freedom of con-science of a medical entity, did not provide any arguments to challenge the clear position expressed by the Constitutional Tribunal and the Parliamentary Assembly of the Council of Europe.

Possible violation of the right to health care

As already mentioned, addressees of the Health Minister’s Guidelines are not legally obliged to apply them. On the other hand, the Guidelines include a reference, implicitly expressed, to the recently introduced changes within the annex to the decree of the Minister of Health of September 8, 2015 on the general terms and conditions of contracts for the provision of health care services , according to which hospitals have been obliged to provide pregnancy termination services, regardless of the fact that a physician prac-ticing in that hospital refrains from performing the service, in accordance with Article 39 of the u.z.l. (§ 3(6) of the annex to the decree). In the event of non-compliance with this obligation, the decree provides for a contractual penalty of up to 2% of the amount of the obligation under the contract with the National Health Fund (NFZ) for each detected violation (§ 30(1)(g) of the Annex). An additional even more severe sanction, provided for in §36.1(5b) of the annex to the decree, is the risk of contract termination by the NFZ in the event of a violation of the “obligation” to perform abortions. Thus, the cited legal solutions create a harsh sanction system, unjustified in light of the above-cited case law of the Constitutional Tribunal, provided for cases of refusal to provide “morally sensitive services,” which may lead to a significant reduction in the availability and standard of medical services provided in hospitals. In particular, termination of a hospital’s contract will reduce access to gynecological and obstetric services. Likewise, the application of financial sanctions will negatively affect the quality of services provided by the affected medical entities, as the deterioration of an hospital’s financial condition will inevitably translate into the standard of medical care and negatively affect the quality of the services provided by this entity. This situation can lead to a dispro-portionate violation of everyone’s constitutional right to health care and the right to equal access to health care services.

Summary

In Poland, abortion at a woman’s request (“abortion on demand” remains illegal. The “medical indication model” adopted by the Polish legislator assumes that a termination of pregnancy can be carried out when it is justified by certain circumstances, including a threat to the mother’s health. An attempt in July 2024 to legalize abortion on demand through a law failed, failing to get the required majority in the lower house of Parliament. In order to introduce de facto access to abortion on the basis of a woman’s subjective feeling (and therefore “on request”), the Minister of Health unlawfully issued guidelines for doctors, in which she presented her own, anti-constitutional, interpretation of the regulations governing the termination of pregnancy, in particular regarding a woman’s mental health. However, those guidelines were issued in vio-lation of the principle of adherence to the law (Article 7 of the Constitution of the Republic of Poland) and present the rights, freedoms and duties of physicians performing abortions in a false light. Contrary to the government’s narrative, these guidelines are not a source of law and do not create an obligation on the part of the addressees to apply them; on the contrary, they expose the implementing doctors to civil, criminal and disciplinary liability. However, adherence to the guidelines is to be enforced by a sanction system – through the use of an existing law in a way that provides for heavy financial penalties for hospitals that re-fuse to terminate pregnancies based on considerations concerning a woman’s mental health. This may in turn lead to the violation of Polish citizens’ constitutional rights to health care and to equal access to health services.

 

Katarzyna Gęsiak