Barbara Ciosk
I’m googling: Abortion. In a split second, I’ve gotten 171,000,000 answers. On the top of the search page, a Wikipedia article states that abortion is “the ending of a pregnancy by removal or expulsion of an embryo or fetus.” Reading the article further, I learn that abortion is one of the safest medical procedures when properly done and that delegalizing safe abortion increases maternal deaths.
Albeit formal, this description is full of politically charged allusions. Firstly, the definition emphasizes the medical nature of abortion by using the words ‘embryo’ and ‘fetus’ instead of an ‘unborn child’ — a term evoking the maternal role of a woman and encouraged by the ‘anti-choice’ (also known as ‘pro-life’) groups. Secondly, the article points out that legalizing abortion leads to positive effects on the life, health, and well-being of women. This article will demonstrate that these distinctions can explain the recent changes to the Polish abortion law.
Ever since the fall of the communist regime, Poland has had one of the strictest abortion laws in the world[1]. In 1993, the Polish Parliament passed legislation that criminalized abortion with three exceptions — if the pregnancy was a result of an illegal act (rape or incest), in case of severe and irreversible fetal abnormalities, and if the pregnancy constituted a threat to the mother’s life[2]. Since the new law significantly curtailed women’s freedom to consciously choose maternity, many feminist organizations widely protested the introduction of the 1993 law for almost four years[3]. Their rage was further fueled by the limitations imposed by the conscience clause of the Polish medical law. This clause allowed healthcare practitioners to refuse to perform an abortion if they found it unethical[4] and made receiving abortion even less likely than prescribed by the written law. But women’s voices were ignored, and although the 1993 law made abortion practically inaccessible, it was still hailed by the politicians as “the abortion compromise” allegedly balancing the demands of right and left-wing groups.
In October 2020, the Polish Constitutional Court found that one of the exceptions in the 1993 law, namely allowing for abortion in cases of severe and irreversible fetal abnormalities, violated the Polish Constitution. The law failed to extend the Constitutional protection of life to children in the prenatal phase. In 2019, 98% of all legal abortions were performed on the ground of the exception of fetal abnormalities[5]. Thus, when the Court’s holding became a working law in January 2021, it introduced a near-total ban on abortion in Poland. As a consequence, Polish women lost yet another bit of their freedom and have been on the streets protesting the complete disregard for their personhood since October 2020[6].
This is where we return to the Wikipedia definition and the influence of language on the conclusions about abortion. In the 150 pages long rationale for the decision, the Polish Constitutional Court consistently refuses to acknowledge the existence of “pregnant women” and “fetus,” replacing them with “mothers” and “unborn children”[7]. It matters because “a mother” is an indicator of a social position with regards to a child, whereas, “pregnant women” describes a subcategory of women, consisting of self-contained people. The former term implies that with the moment of conceiving, a woman’s self-understanding and identity are defined through her relationship to the fetus (or “an unborn child”). Thus, motherhood is not portrayed as a social voluntary position but as a female involuntary destiny resulting from a biological capability of the female body. The latter term detaches a woman’s identity from utilizing her reproductive capabilities. Thus, the act of impregnation converts a ‘woman’ into a ’pregnant woman,’ indicating birth-giving not as a primary biological imperative, but as one of the many functions that a woman and her body can perform. Consequently, a decision not to take upon the social role of a mother does not inhibit the fulfillment of a woman’s personhood because there are many other ways in which it can be conceived. This is why “mother” in the context of the abortion narrative implies a woman’s imperative social and biological calling, whereas “pregnant woman” describes a change in the biological state of a female body.
Utilizing the terminology of motherhood led the Polish Constitutional Court to the conclusion that embryos and fetuses deserve the same legal protection as living humans. The Court argued that abortion is against the interest of the “child,” whose life as a human being is constitutionally protected. Depriving a child of this basic good should only happen if there is a greater constitutional good that motivates the curtailing of the legal protection of life. Since it is difficult to estimate the suffering that bringing a problematic pregnancy to full term will cause to a woman, the contrary to the protection of the child’s life is only the ‘potentially’ necessary protection of women’s health. However, in the hierarchy of constitutionally protected values, the protection of a child’s life trumps the protection of a woman’s physical and mental health from ‘potential’ harms caused by bringing the pregnancy to term[8]. Consequently, a woman has no right to refuse the suffering caused by pregnancy with an irreversibly ill fetus because she is obliged to protect the right to life of the fetus inside her body.
This way, at the moment of conception, women’s protection of their legal personhood is curtailed by the state-imposed biological imperative of birth-giving and maternity. There is no “pregnant woman,” there is only “a mother” with “a child,” and her suffering is taken as a necessary step in her maternal destiny to give a new life to the state. As expected, no one asked the pregnant women if they wanted to suffer.
Rightfully, two Justices in the Court dissent, noting that in the effort to increase the legal protection of lives in the prenatal phase, the Court’s majority only focused on accounting for the perspective of the unborn children. They said that the Court failed to acknowledge the constitutional duty to protect the dignity, health, and life of women, which the Polish Constitution does not explicitly specify as lesser than those of “an unborn child.”
This is why the holding of the Constitutional Court exemplifies a greater social problem of taking female suffering for granted. Politicians for the last 30 years, the judges of the Constitutional Court, and doctors with their clause of conscience all feel entitled to tell women that they have a moral obligation to bring a pregnancy to full term because they are carriers of a new life before they are people whose bodies became impregnated. Consequently, they feel ethically obliged to ignore the pleas of women protesting on the streets and ignore the proven data that legalizing abortion improves women’s physical and mental health and well-being. In the eyes of the law, female suffering is ethically justifiable.
Motherhood can be a beautiful calling, and I would like to see a society where families taking care of children with disabilities receive adequate help from the state. However, the Polish society subjugates womanhood to a state-imposed maternal obligation, and mothers taking care of children with disabilities receive little to no state help[9]. The new changes in the Polish abortion law show that women’s suffering is taken for granted, and the state is ignoring their loud refusal to continue playing the role of martyrs.
