Tusk Government’s Abortion Guidelines Constitute Incitement to Murder—Ordo Iuris Notifies Prosecutor’s Office

On August 30, 2024, Poland’s Minister of Health, Izabela Leszczyna, issued Guidelines on the applicable legal provisions concerning access to the procedure for termination of pregnancy. During the press conference related to the introduction of the Guidelines, which took place on August 30, 2024, Prime Minister Donald Tusk indicated that further attempts to secure a majority in the Sejm in favor of bills that would legalize abortion up to the 12th week had failed. Therefore, he was to work together with Minister Leszczyna on guidelines that would change the reality in such a situation. 

In the Guidelines, within the framework of Article 4a(1)(1) of the Polish Act on Family Planning, Protection of the Human Fetus and the Conditions for the Admissibility of Termination of Pregnancy, it is stated: The Act on Family Planning also does not define the term ‘threat,’ leaving it to the assessment of a physician acting on the basis of current medical knowledge; the provisions do not employ any gradation in this respect, do not indicate that the threat must be sudden or direct, and should not be interpreted as such.

This position disregards the provision of Article 157a § 2 of the Polish Criminal Code, under which a physician does not commit an offense if bodily injury to, or impairment of the health of, the unborn child is the result of medical procedures, necessary to avert a danger to the health or life of the pregnant woman or the unborn child. § 1 of this article provides that whoever causes bodily injury to an unborn child or an impairment of health that endangers the child’s life is subject to a fine, the penalty of restriction of liberty, or imprisonment for up to 2 years.

In legal doctrine, with respect to the regulation in Article 157a § 2 of the Criminal Code, it is argued that: Medical interventions undertaken to avert the danger must be necessary, meaning that, without them, the danger to the life and health of the pregnant woman or the unborn child would, according to our knowledge and experience, result in death or significant impairment of health. (see Wróbel Włodzimierz (red.), Zoll Andrzej (red.), Kodeks karny. Część szczególna. Tom II. Część I. Komentarz do art. 117-211a, Published: WKP 2017). The necessity of these measures means that sacrificing the health of the unborn child must be the only way to save its life or health, or the life of the pregnant woman. (see Giezek Jacek (red.), Kodeks karny. Część szczególna. Komentarz, Published: WKP 2021).

Therefore, in light of this regulation, bodily injury to or impairment of the health of the unborn child is not justified solely by the threat to the life or health of the pregnant woman, but only by the necessity of sacrificing the unborn child to avert the threat to the life or health of the pregnant woman. 

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The Constitution is the supreme law of the Republic of Poland

Pursuant to Article 8(1) of the Constitution of the Republic of Poland, the Constitution is the supreme law of the Republic of Poland. Pursuant to paragraph 2 of this Article, the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise.

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The Constitution, taken as a whole, gives expression to an objective system of values, and the process of interpreting and applying individual constitutional provisions should be directed toward realizing it. In defining this system of values, the provisions on the rights and freedoms of the individual, found primarily in Chapter II of the Constitution, play a central role. Among these provisions, the principle of the inherent and inalienable dignity of the human person occupies a central place. Respect for and protection of the right to life constitutes one of the fundamental preconditions for the implementation of this principle. (see the judgment of the Polish Constitutional Tribunal dated March 23, 1999, K 2/98, LEX No. 36396). 

Pro-life case law of the Polish Constitutional Tribunal

Human life (…) constitutes a fundamental human good (as held in the judgment of the Constitutional Tribunal of 28 May 1997, K 26/96). The judgment also noted: A democratic state governed by the rule of law sets as its supreme value the human being and the goods most precious to them. One such value is life, which, in a democratic state governed by the rule of law, must remain under constitutional protection at every stage of its development. The value of the constitutionally protected legal interest that is human life, including life developing in the prenatal stage, may not be differentiated. There are no sufficiently precise and well-founded criteria to draw such a distinction based on the developmental stage of human life. Accordingly, from the moment it comes into being, human life becomes a constitutionally protected value. It also applies to the prenatal phase.

(…) Given the fundamental nature of the right to life in constitutional axiology, not every one of the interests indicated in Article 31(3) of the Constitution can justify measures that infringe upon them. Without the need for further elaboration, it can be stated that, in a democratic state governed by the rule of law that implements the principles of social justice and protects life and the inalienable dignity of the human being, it would be decidedly unacceptable to restrict the legal protection of human life in order to safeguard interests ranked lower in the constitutional hierarchy, such as property and other property rights, public morality, environmental protection, or even the health of other people. Therefore, the condition for restricting the right to legal protection of life is the occurrence of a situation in which it is beyond doubt that this right cannot be reconciled with the analogous rights of other persons. This premise can be generally described as a requirement of symmetry between the interests being sacrificed and those being saved. (see the judgment of the Constitutional Tribunal of September 30, 2008, case no. K 44/07, LEX no. 441911). 

“The risk to the mother that justifies abortion must be serious”

In its resolution of 26 October 2006, I KZP 18/06, LEX No. 196378, the Supreme Court pointed out that The criminal-law protection of the unborn child in Poland is a consequence of treating the prohibition of termination of pregnancy as a principle and drew attention to: the humanistic reasons for the interpretive directive in dubio pro vitae.

It should also be noted, in the context of Article 152 of the Criminal Code in conjunction with Article 4a(1)(1) of the Act on Family Planning, Protection of the Human Fetus and the Conditions for the Admissibility of Termination of Pregnancy, that: A review of the literature indicates that most authors subscribe to the view that the risk to the mother that renders termination of pregnancy lawful must be serious (see Radosław Tymiński (ed.), Kodeks karny. Przepisy stosowane w sprawach medycznych. Komentarz. Published: WKP 2023).

Leszczyna’s Guidelines violate the principle of legal coherence

The interpretation adopted in the Guidelines to the provisions of Article 4a(1)(1) of the Act on Family Planning, Protection of the Human Fetus, and the Conditions for the Permissibility of Termination of Pregnancy, in light of the case law and scholarly opinions cited above, clearly violates the principle of coherence of the Polish legal system. It leads to a lesser degree of protection of the unborn child’s life than of its health. It clearly undermines the constitutional value system by placing any risk to the mother’s health ahead of the life of the unborn child, which results from a breach of the mandate, stemming from Article 8 of the Constitution, to apply a pro-constitutional interpretation of the statute and to apply the Constitution concurrently as an interpretive standard. 

Pursuant to Article 148 § 1 of the Polish Criminal Code, whoever kills a human being is subject to imprisonment for a term of not less than 10 years or to life imprisonment.

As of when is a child entitled to the full protection afforded to a human being under the Criminal Code?

Poland’s court of cassation, the Supreme Court, in its decision of October 30, 2008, I KZP 13/08, LEX No. 453603, stated: (…) full protection of health and life under criminal law is afforded to the unborn child from:

1. onset of labor (natural),
2. in the case of a surgical cesarean section ending the pregnancy at the request of the pregnant woman—from the undertaking of the first medical act directly aimed at carrying out such a procedure,
3. in the event of a medical necessity to perform a cesarean section or another alternative completion of the pregnancy—from the moment medical indications for such necessity arise. 

In the cited decision, it was also noted: The steps leading to performing a cesarean section in a situation of medical necessity begin—viewed from the perspective of the duties of broadly construed healthcare personnel—with the diagnostic process, usually initiated by taking a medical history, through which it is possible to determine whether there are indications for performing the procedure, and—from the perspective of the pregnant woman—with such cooperation on her part as enables these examinations to be carried out. During such contact (between a member of the medical staff and the pregnant woman), there is the first opportunity to assess whether there are indications to perform the procedure. If, in the course of these actions, circumstances come to light concerning the unborn child, the mother, or both, that indicate both the possibility and the necessity of performing a cesarean section to protect health or save life, further steps must be taken to enable the procedure to be performed. The occurrence of such circumstances means an objective necessity to carry out an alternative termination of pregnancy. The occurrence of such a necessity marks the beginning of the period during which the separation of the child from the mother’s body should occur, which is synonymous with the period of childbirth within the meaning of Article 149 of the Criminal Code. From this moment on, an unborn child is entitled to the full criminal-law protection provided for a human being under the Criminal Code currently in force.

The Supreme Court took the same position in its judgment of September 27, 2010, V KK 34/10, LEX no. 612469, and in its decision of March 26, 2009, I KZP 2/09, LEX no. 486166; and so did the Court of Appeal in Warsaw in its judgment of November 19, 2020, II AKa 444/18, LEX no. 3164517; and the Court of Appeal in Wrocław in its judgment of January 28, 2019, II AKa 262/18, LEX no. 2724244.

The Guidelines allow for ending a child’s life when the child already enjoys full protection of life under criminal law. 

The Guidelines indicate in particular: However, the provisions of the Act on Family Planning do not specify any time limit within which a pregnancy may be terminated when it threatens the life or health of the pregnant woman. From a legal standpoint, performing a termination-of-pregnancy procedure in these circumstances should therefore not depend on the duration of the pregnancy. Accordingly, the Guidelines provide that abortion pursuant to Article 4a(1)(1) of the Act on Family Planning, Protection of the Human Fetus and the Conditions for the Admissibility of Termination of Pregnancy is permissible up to the birth of the child, i.e., even where grounds of medical necessity exist to perform a cesarean section or another alternative method of ending the pregnancy. In other words, the Guidelines allow for the possibility of taking the life of a child in the prenatal stage of development, when the child already enjoys full protection of life under Polish criminal law, and when it is possible to resolve the conflict between the life of the unborn child and the life or health of the pregnant woman by preserving both conflicting legally protected interests.

The killing of a child in Oleśnica is the result of Prime Minister Tusk’s and Minister Leszczyna’s Guidelines.

A consequence of the interpretation thus given to the regulation in question was the abortion of a child in the 36th week of pregnancy performed in Oleśnica citing a threat posed by the pregnancy to the mother’s mental health, despite the doctors’ earlier proposal to end the pregnancy immediately by cesarean section without killing the child, precisely because of the mother’s poor mental condition. 

Pursuant to Article 18 § 2 of the Polish Criminal Code, whoever, intending that another person commit a prohibited act, incites that person to commit it, shall be liable for incitement. In the context of this regulation, the case law holds that inducement must be addressed to a specific person or to an individualized circle of persons (ad certam personam), not necessarily known to the instigator by first and last name. (as held by the Warsaw Court of Appeal in the judgment of March 22, 2022, II AKa 139/21, LEX No. 3341108). Similarly, the Supreme Court in the decision of October 20, 2005, II KK 184/05, LEX No. 163969, as well as the Court of Appeal in Krakow in the judgment of February 8, 2006, II AKa 207/05, LEX No. 180361. 

In light of the above, it should be noted that the Guidelines expressly identify their intended recipients, namely: Hospital Directors, Ward Managers/Department Heads. During the aforementioned press conference, Minister Leszczyna emphasized that: The Guidelines will serve as the interpretive standard for physicians and healthcare entities Such a group of Guideline recipients can be personalized, even on an individual basis.

After identifying the recipients, the Guidelines go on to say: I am providing you with the Guidelines on the applicable legal provisions governing access to the termination-of-pregnancy procedure and kindly ask that they be applied appropriately, thereby respecting the rights of female patients and ensuring that they receive appropriate care. Thus, the recipients of the Guidelines are being urged to apply the legal provisions concerning access to the termination-of-pregnancy procedure in a manner which, in light of the reasoning cited above, amounts to fulfilling the elements of Article 152 § 1 of the Criminal Code, Article 152 § 3 of the Criminal Code, and Article 148 § 1 of the Criminal Code. 

Incitement to murder or ordering a murder?

It follows from Prime Minister Donald Tusk’s statements at the press conference held on August 30, 2024, that, acting jointly and in concert with Minister Leszczyna and wishing that the recipients of the Guidelines, by misapplying Article 4a(1) of the Act on Family Planning and Protection of the Human Fetus, terminate women’s pregnancies with their consent, including aborting conceived children who had reached the ability to live independently outside the pregnant woman’s body, also in cases where medical indications required performing a cesarean section or another alternative way of ending the pregnancy, they induced them to do so, thereby fulfilling the elements of Article 18 § 1 of the Criminal Code in conjunction with Article 18 § 2 of the Criminal Code, in conjunction with Article 152 § 1 of the Criminal Code, Article 152 § 3 of the Criminal Code, and Article 148 § 1 of the Criminal Code.

Moreover, by emphasizing that failure to comply with them may result in a contractual penalty of up to 2% of the value of the overall sum to be paid to them under their contract with the National Health Fund for the provision of health care services, or even termination of the contract, the Guidelines provide grounds to consider the conduct of Donald Tusk and Izabela Leszczyna within the category of perpetration by command (Article 18 § 1 of the Criminal Code).

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Violation of the constitutional system of sources of law

The Guidelines undermine (circumvent) the constitutional system of sources of law, as evidenced by their relationship to statutory provisions, in particular those concerning the termination of pregnancy. The manner in which they are worded and the context of their adoption clearly indicate that the intention of the Prime Minister and the Minister of Health—who, in this instance, is acting as the legislator—is to supplement the provisions of the statute and to bring about a de facto expansion of access to abortion (which had just failed to occur due to the rejection by Parliament, at the third reading in its lower house, of a bill that would have practically eliminated criminal liability for killing unborn children¹). Poland’s Constitution establishes a closed catalog of sources of universally binding law, which means that, apart from the legal acts listed in the Constitution, it is not permissible to enact universally binding law. Government guidelines are not among these acts, which means that such a form of enacting universally binding law is impermissible. In light of Article 93 of the Constitution, the challenged Guidelines of the Minister of Health could constitute an act of internal regulation, that is, one addressed to organizational units subordinate to the issuing authority. Nevertheless, the addressees identified in the text of the Minister of Health’s Guidelines (Hospital Directors, Ward Managers/Department Heads) are not among the entities that are organizationally subordinate to the Minister of Health. Moreover, the contested Guidelines contain detailed provisions that are incompatible with universally binding law, which is prohibited under Article 93(3) of the Constitution.

Rule-of-law principles have been thrown in the trash

By issuing the Guidelines, the Minister of Health, Izabela Leszczyna, and the Prime Minister, Donald Tusk, violated the principles of the rule of law. The Guidelines were issued without a legal basis. Neither the Minister of Health nor the Prime Minister has the authority to issue guidelines on the applicable legal provisions or to render a binding interpretation of the law in any respect. Pursuant to the principle of legality (Article 7 of the Constitution), public authorities act within the limits of and on the basis of the law. Acting without a legal basis and exceeding one’s authority, additionally in a form not provided for by law, constitutes a violation of the principle of legality.

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Moreover, in many instances the Guidelines do not stop at a pro-abortion reinterpretation of legal provisions but clearly change the law in force in Poland regarding the permissibility of terminating pregnancy—for example, as regards specifying the place where the termination procedure is to be performed when its basis is a justified suspicion that the pregnancy resulted from a prohibited act (Article 4a(8) of the Act on Family Planning, Protection of the Human Fetus and Conditions for the Permissibility of Termination of Pregnancy), obtaining opinions from specialist physicians, or convening a medical board (Article 37 of the Act on the Professions of Physician and Dentist). Therefore, regardless of the lack of authority to issue the contested Guidelines, their more or less overtly lawmaking nature, depending on the passage selected, also establishes a violation of Article 7 of the Constitution.

The Guidelines were issued in a manifest excess of the powers of the Minister of Health and the Prime Minister and, by undermining the constitutional system of sources of law and the principle of the rule of law and by drastically lowering the constitutionally and statutorily defined standard of legal protection of the life of the unborn child, harm the public interest, which fulfills the statutory elements of a prohibited act under Article 18 § 1 of the Criminal Code in conjunction with Article 231 § 1 of the Criminal Code.

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For all these reasons, the Ordo Iuris Institute for Legal Culture will seek to have the Polish judiciary examine the actions of Donald Tusk and Izabela Leszczyna, which, in our view, may constitute incitement to murder, incitement to the termination of pregnancy in violation of statutory provisions, abuse of authority, and acting to the detriment of the public interest. The first step toward this is the notice we submitted to the National Prosecutor’s Office on September 9 of this year—being fully aware that the position of National Prosecutor was improperly filled by the current government and that action by the prosecutor’s office in this matter will probably have to wait until the prosecution service is freed from political control.

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The full version of this analysis is available in Polish from this page, where you can also download a copy of the Ordo Iuris Institute’s notification to the Prosecutor’s office.

^[1] 
On July 12, 2024, the Sejm rejected a bill introduced by deputies to amend the Criminal Code (print no. 176/10th term—https://sejm.gov.pl/Sejm10.nsf/PrzebiegProc.xsp?nr=176).