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The IBA’s response to the war in Ukraine
Pic: Aerial shot of protests against anti-abortion law, Warsaw, October 2020. lukszczepanski/Adobe Stock
In late June, the US Supreme Court overturned two previous rulings – Roe and Casey – that created a constitutional right to abortion and enabled states to ban abortion at any stage of pregnancy.
Within hours of the decision in the case Dobbs v Jackson Women’s Health Organization, ten states had banned abortion, and providers in some states have paused their services while questions about the implications of pre-Roe laws are resolved. In total, 26 states are expected to ban abortion quickly following the decision.
Rights advocates fear criminalisation of healthcare providers and people who have suspected abortions, as well as increased surveillance, denials of lifesaving care and restrictions on travelling to seek healthcare elsewhere.
Matt Kaiser, Vice-Chair of the IBA Criminal Law Committee and a partner at KaiserDillion in Washington, DC, says even before the decision ‘there have been investigations and prosecutions into certain pregnancy outcomes in some states. My understanding is that those are more attention-grabbing outliers than a regular national phenomenon, thankfully.’
In his view, Roe’s overturning means that the ‘floodgates will open […] and it will the worst of how prosecution is done’.
He adds that ‘you could have criminal trials that are really just conflicting medical testimony about, in this situation, how necessary was it to save the life of the mother?’
Others warn of the potential global impact of the ruling. Speaking after the decision appeared in leaked form in May, Mark Stephens, CBE, a Co-Chair of the IBA Human Rights Institute (IBAHRI), said that ‘the [anti-choice] abortion lobby globally is going to take enormous heart if this decision from the US Supreme Court remains as it currently is in its leaked draft.’
Co-Chair, IBA’s Human Rights Institute
Akila Radhakrishnan is President of the US-based Global Justice Center, which works to further reproductive rights globally through the rule of law. She says, ‘there’s the potential for this to have regressive impact’, highlighting that many anti-choice organisations have a global footprint and that tactics used in the US have already been imported elsewhere. ‘We’ve seen the importing of tactics, for example, around protesting at clinics starting to crop up in Africa.’
But Margaret Harpin, Legal Advisor in the Global Legal Strategies Unit at the Center for Reproductive Rights in the US, highlights that regressive moves to restrict abortion go against a global trend. ‘Generally overall in the past 25 years, we’ve seen nearly 60 countries liberalise their abortion laws, and only three have rolled back rights’, she says.
In Poland, pregnant people face heightened scrutiny following an order from the Health Minister, signed in early June, requiring doctors to register all pregnancies in the country. Information collected will include past or current illnesses, medical visits, treatment and blood type.
In light of Poland’s near-total abortion ban, there are fears the register could be weaponised to monitor pregnancy outcomes and persecute women suspected of having abortions or suspected abortion providers – particularly as the information can be accessed by the Polish prosecutor’s office through a court order.
Anne Ramberg, also a Co-Chair of the IBAHRI, tells Global Insight that the ‘grotesquely repressive’ order ‘is of course an infringement of privacy and women’s rights’. She adds that it’s ‘another example of increased surveillance and monitoring of people. It does not belong in a democracy built on the rule of law.’
The announcement comes 18 months after Poland’s heavily restrictive abortion laws – which had already forced 80,000–200,000 women a year to seek illegal or foreign abortions – were superseded by a near-total abortion ban.
In October 2020, Poland’s Constitutional Tribunal ruled that allowing abortion in cases of severe and irreversible foetal abnormalities – the grounds for 98 per cent of Poland’s abortions in 2019 – was unconstitutional. The Tribunal claimed ‘an unborn child is a human being’ and Poland’s Constitution guarantees a right to life.
The ban sparked the country’s largest protests in decades, but came into effect in January 2021. It allows exceptions in cases of rape, incest or when the pregnancy threatens the life of the mother. However, the ban has been blamed for the deaths of two women who were allegedly denied abortions after their pregnancies went into crisis.
And despite the exceptions for rape, fewer than five abortions per year were carried out on these grounds in the ten years before Poland’s laws tightened in 2021. To get such an abortion, the woman must provide evidence of their rape through a certified letter from a public prosecutor.
These significant barriers to healthcare are also now affecting the millions of refugees fleeing Russia’s invasion of Ukraine, who have entered Poland and found themselves stripped of their reproductive rights. Organisations supporting access to reproductive healthcare have highlighted that many of the refugees have been raped and face re-traumatisation and even forced pregnancy if they’re unable to move further into Europe for healthcare.
Stephens believes the European Court of Human Rights (ECtHR) may see cases arising out of the conflict ‘because essentially, women are not being allowed access freely, or they’re impeded in getting access to medical health services. And essentially, they’re being required to carry an unwanted pregnancy. That, as we know, is a violation of international human rights law, including the rights to privacy and bodily autonomy.’
He adds that ‘Poland is probably going to be at the wrong end of one of these cases. Because it’s just not acceptable in international law to say to a woman you’ve got to move to Scandinavia or to Holland or wherever in order merely to seek medical assistance with your pregnancy. Medical assistance that you couldn’t achieve in Poland. That’s discriminatory.’
The ECtHR had already received over 1,000 applications challenging Poland’s abortion laws by July 2021, and notified the Polish government of 12 applications. The applicants claim the laws amount to a potential violation of their rights to private lives and freedom from ill treatment.
Ramberg highlights that the European Parliament declared access to safe abortion a human right in 2021. ‘Denying women access to safe abortion can amount to violations of the rights to health, privacy and the right to be free from cruel, inhumane and degrading treatment’, she says.