The mental health cost of Poland’s abortion ban

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When Dominika Biernat took to the streets last October, joining the huge public protests against Poland’s near-total ban on abortion, little did she know that in a few months she would become one of its victims.

A single woman and a successful actress with one of Warsaw’s most renowned theatre companies, her pregnancy was not planned. But the father was a good friend and when she found out, the 39-year-old thought it could be one of her last chances to become a mother.

She bought a new flat in one of the city’s hip districts, confident that work with the theatre company would pick up again once COVID-19 restrictions were lifted. Then, as Poland entered a third pandemic lockdown, she went for a routine ultrasound scan that marked the beginning of some of the most trying months of her life.

“I remember that day I thought, I want to rewind my life to five minutes before,” Dominika recounts, amid the still-unpacked boxes and bare walls of her new flat. The empty kitchen shelves contrast with the pots and plants she has laid out neatly on the windowsill.

That day she found out the foetus had omphalocele, a condition that caused part of its intestines and liver to grow outside of the abdominal cavity.

“[The doctor] was just repeating, ‘oh my God, oh my God’,” she says. “When I asked her if she thought I’d have to terminate my pregnancy, immediately there was a change in her face.” 

Until this year, a woman whose foetus was diagnosed with an irreversible disability or an incurable illness was able to choose whether to carry on with the pregnancy. But an October 2020 ruling by Poland’s Constitutional Tribunal banned abortion – already severely restricted – on those grounds. The ban came into effect in January. While women are not prosecuted for having an abortion in Poland, helping provide one carries up to three years in prison.

Dominika started compulsively researching the condition.

“I was reading articles, visiting doctors, at least five of them,” says Dominika, who wanted to know what the chances were of her unborn baby surviving and going on to lead a normal life. “And they just put me in this position … that I am a mum now.”

Dominika went through three weeks of uncertainty as doctor after doctor told her more tests were needed to determine whether the foetus was developing other related health conditions, such as heart problems.

“They weren’t very specific and they told me we would know everything after more exams,” Dominika says. “They will call you ‘mummy’, [direct you to] everything you need to do, and you have to follow them. And you are later and later in the weeks [of your pregnancy]. So the decision about abortion is much more difficult.”

Dominika read dozens of articles about omphalocele, about the rounds of post-birth surgery in a case so severe and the possible complications. But it was only when she got on the phone to a doctor from the Czech Republic, where abortion is legal, that some of the guilt that had been instilled in her since she first found out was eased. After the call, she finally made the decision to go through with an abortion.

“My friends said, ‘Dominika, just imagine you are from Czech Republic. What do you feel? You feel sad because you wanted to have a child, but you don’t have this thought that you are a bad person [for wanting to choose abortion]’,” she explains.

While the Catholic Church and the Polish government are supposed to be independent of each other, liberal Poles decry the Church’s increasing role in the country’s political life in support of the nationalist Law and Justice (PiS) party. The party is thought by some to protect the Church and use it to appeal to socially conservative segments of this deeply divided nation. Since it lent its support to the Solidarity protest movement that led to the end of communist rule in Poland in the 1980s, the Catholic Church has portrayed itself as a defender of democracy in the country.

A 1993 law known in Poland as the “compromise” only allowed abortion in cases of rape, when the mother’s life or health was at risk, and – until January this year – when there was a severe foetal abnormality. In the European Union, only Malta has a more restrictive law.

Poland’s Constitutional Tribunal, however, ruled that allowing abortions for foetal abnormalities clashed with Article 38 of the Polish constitution, which protects the “right to life of every human being”. It applies even when there is little or no chance a baby will survive after birth.

The ruling sparked the largest protests Poland has seen since the fall of communism, with thousands joining marches in Warsaw and smaller cities around the country amid a second wave of the pandemic last October. Despite that, the ban came into effect in late January, when international media attention had faded and a strong police response dissuaded many people from protesting. Demonstrators argued the court’s decision was equivalent to banning abortion altogether in Poland, a country where 96 percent of all legal abortions in 2019 were due to foetal abnormalities.

Poland has been in a dispute with the EU over changes to its judiciary since PiS began implementing them in 2015; the party argued they were needed to stamp out corruption and the last remnants of the communist era. Critics, however, say they jeopardise the rule of law and democracy. Among the reforms implemented, changes to the way judges are appointed to the Constitutional Tribunal have led to most of them being picked by the governing party.

For the European Parliament, the ruling is “yet another example of the political takeover of the judiciary and the systemic collapse of the rule of law” in Poland.

Chilling effect

As Warsaw emerged from a third wave of the pandemic, the beginning of the summer in the city saw squares and the banks of the Vistula River fill with tourists and young people keen to go back to a semblance of normality. Veteran women’s rights activist Krystyna Kacpura, however, did not have that option.

Kacpura heads the Federation of Women and Family Planning (FEDERA), a small reproductive rights organisation founded in 1991. She has been working non-stop since the ban was announced, answering dozens of calls from women, some of them simply concerned about how they could be affected in the future. She says more than 2,000 women made contact with FEDERA between October and April alone.

“Every day we receive several calls from women from different parts of Poland,” Kacpura says in a park in the southern suburb of Warsaw, where she lives in a Soviet-era residential block. “They went from doctor to doctor, from hospital to hospital. And even if some gynaecologists … understand this difficult situation of women, they are so frightened. They’re afraid of being imprisoned or to lose their right to the profession.”

Her organisation, though, was targeted directly for its work. Earlier this year, she and her staff received emails with bomb and death threats from unknown senders, becoming one of at least seven women’s rights groups to come under fire since the protests, according to a March report by Human Rights Watch, which condemned the escalating threats to activists. The government responded (PDF) saying it was committed to the protection of human rights in Poland and that some of the cases had been referred to district prosecutors and were being investigated.

Meanwhile, Kacpura and others continue with their work, often walking the very thin line of being part of a network of pro-choice activists and medical professionals willing to provide assistance within the boundaries of the law.

“Sharing information, informing and educating people is not punishable,” Kacpura explains, adding that among other things, they are planning on organising legal workshops for gynaecologists and doctors aimed at explaining the boundaries of the new law and that, as she puts it, “it is not their duty to call the police”. In a handful of extreme cases, women have been able to get abortions on grounds that carrying on with the pregnancy would damage their mental health, after consulting a psychiatrist. But finding a hospital willing to perform the abortion remains difficult, even with medical evidence of serious mental health consequences. The most realistic option remains for women to travel abroad.

‘If you have money’

Polish women have been travelling to other European countries for abortions for years. Even before the ban, conscientious objection – the possibility that a doctor may refuse to perform an abortion based on their personal or religious beliefs – made legal abortions difficult. Despite the restrictive legislation, the United Nations estimates that anywhere between 80,000 and 180,000 informal abortions take place in Poland every year. The vast majority are self-managed medical abortions – with pills women buy online, and that the World Health Organization considers safe to practise at home in the early stages of pregnancy.

One consequence of the large-scale protests in October has been the increased availability of abortion information, widely shared by activists at the protests and beyond. The phone number of a helpline linked to an existing transnational network of activists was shared widely, with posters plastered everywhere from cities to small towns, and musicians posting catchy songs with the phone number online. According to Abortion Network Amsterdam, a group that supports women who do not have access to safe abortion, the number of Polish women contacting them has spiked since the ban, with the vast majority being foetal abnormality cases.

Still, women in small towns and traditionally conservative areas face additional stigma and struggle with anonymity. The pandemic made it even more difficult for those women to make excuses to travel abroad when all but essential travel was halted. While organisations that support women living in countries where abortion is banned or restricted do exist, access remains unequal.

“It’s very difficult for a woman living in small towns and villages to go to Netherlands, even if she is assisted and helped by some activists,” Kacpura says. “You know, she never travelled, she can’t understand that she has to go somewhere to end her difficult pregnancy.”

“So this is the kind of reproductive injustice in Poland, that you can buy a safe legal abortion if you have money,” Kacpura says.

Women’s uprising

It would be easy to miss 42-year-old Milena Kwiatkowska’s home in a residential neighbourhood in the small town of Myślibórz, in the northwestern Polish province of Pomerania, amid row after row of one-storey concrete houses with neatly-trimmed and decorated lawns.

But a poster of the All-Poland Women’s Strike (Ogólnopolski Strajk Kobiet) movement attached to the window of her living room leaves little room for doubt. By now, everyone in Poland is familiar with the black silhouette of a woman’s face struck by a bolt of red lightning. It is the symbol of the movement, founded in 2016, that was responsible for the first large women’s rights mobilisation known as the “black protests” as the Polish parliament, the Sejm, debated a law to introduce a total ban on abortion that year.

The bill was eventually rejected by the Sejm. But it was not until October 2020 that Milena – who, during the black protests five years before, felt she could not even entertain the thought of taking part in a demonstration – “inadvertently” became the leader of the protest movement in the town of just more than 11,000. The poster has been hanging on her window ever since, raising some eyebrows among the neighbours.

“In the beginning, I wasn’t interested in politics at all, I was busy with other things in life, but now … it is what it is,” says Milena, who was doing odd jobs before she lost her right leg due to pregnancy-induced thrombosis. She says that while she did not set out to be a protest leader, her booming voice – as well as her disability – made her into one.

“After one of the strikes, my [10-year-old] son came to me and said ‘oh there she is, my feminist mum’,” she recounts, bursting into a resounding laugh. It was the first time, she says, that she thought of herself as a feminist.

On one of the first nights of the October protests, Milena had been surprised to see more than 100 women taking to the streets in Myślibórz. “We knew about five people who said they would turn up, so we really didn’t expect such a crowd.”

More people joined in the days that followed. When Milena refused to pay a 500-zloty ($130) fine she received due to a ban on gatherings of more than five people during the lockdown, she was given a police summons. It further cemented her role as the symbol of the women’s strike in Myślibórz. She decided she would rather be dragged to court than pay, but the case has been pending since.

“It’s not only a matter of women who live in Warsaw or other big cities but small cities too, maybe even particularly small cities,” Milena says as she lights a cigarette, her white linen shirt contrasting with her tattooed arms. Two rabbits are eating their food in a corner of the living room, surrounded by a selection of knick-knacks and candles. A cat jumps onto her lap looking for some attention.

The Constitutional Tribunal ruling galvanised a large number of women all over the country, as many of those who supported the so-called “abortion compromise” felt the ban went too far. Milena had her own reasons for taking to the streets.

“I know what it is like to experience stillbirth and what women will have to go through under the new law because it happened to me twice,” says Milena, talking about the grave complications with her last two pregnancies that led to stillbirths at 33 and 28 weeks. Embracing the Polish women’s cause for her is evidently a way to unload some of the burden of those traumatic experiences, including the loss of her leg.

The nearest hospital for residents of Myślibórz is 40km (25 miles) away, she explains, while women have to travel to a nearby town to find a gynaecologist. Access to good reproductive healthcare, she says, is lacking outside cities. She believes that in at least one case, she should have been offered an abortion when it was clear that the foetus would not have survived, instead of waiting until it died.

“Women are treated like incubators. They are forced to keep the pregnancy even if the foetus is deformed and then give birth. Now I’m looking at it from a different perspective, I will not have any more kids, I can’t. But I’m thinking about my kids’ future now, and their future families,” she says, her eyes sparkling with a mixture of anger and hope.

‘This is terrifying’

Dr Maciej Socha is one of the few outspokenly pro-choice gynaecologists in Poland. He specialises in perinatology at a public hospital in the north of the country and runs his own private clinic. Over the years, he has overseen dozens of births and given prenatal care to women whose foetuses were diagnosed with birth defects.

Yet, since the ruling, he feels forced to behave just like an abortion objector would when he comes across patients with severe foetal abnormalities.

“Even if I am 100 percent sure that the baby will not be able to live normally after it is born, I now have to say no to the patient [considering an abortion] … you need to deal with this diagnosis,” he tells Al Jazeera on the phone from Gdańsk.

“[Some months] ago, I would have said … I’m not really convinced what this chilling effect is, but now I can observe it; you know, almost clinically. It’s just changing the way of thinking of my patients, the way of thinking of gynaecologists, the way of diagnosing procedures, the way people are working in this area. This is terrifying,” he says.

The Polish government has promised to increase funds for antenatal care, including psychological support for women diagnosed with foetal abnormalities and neonatal palliative care. Sixteen MPs have also put forward another draft law, currently going through the Sejm, that would require pregnant women diagnosed with such defects to be referred to antenatal hospices.

Rights groups including FEDERA are concerned these could become places where women could be monitored rather than helped, and their decisions influenced – arguing that a “room for crying” cannot be a substitute for a woman’s right to choose.

“This discussion is very, very strange in the Polish atmosphere,” Dr Socha argues, “because you’re not talking about the specific cases, you’re not talking about the individual, you’re just talking about this religious ideology.”

‘Modern crusaders’

The catalyst for the 2016 “black protest” was a civic law initiative drafted by a then little-known organisation called Ordo Iuris Institute for Legal Culture. The rejected proposal would have allowed abortion only to save the life of the mother, thereby banning it for rape victims as well.

Fast-forward four years and that small organisation is opening a university for legal studies – funded, for the time being, with private money. Conservative-leaning intellectuals from all over Europe and the US were present at a conference at the end of May to launch the new institution, whose aim is to respond to what the group sees as a “deepening crisis of academic life” and consolidate a network of Central European intellectuals sharing the same “classical values”.

Present at the launch were the Polish culture minister and deputy prime minister, Piotr Glinski, as well as the minister of education, Przemyslaw Czarnek, both from the Law and Justice party.

Speaker after speaker discussed how liberal values are being imposed on European societies, forsaking their Christian roots in the name of multiculturalism and a “gender ideology” imposed by the dominant political culture in the EU.

“We advocate for good solutions and inform public opinion about what is going on at the international level, which is not always in line with, for example, the Polish constitution,” one of Ordo Iuris’s spokespeople, Karolina Pawlowska, says on the sidelines of the conference, under the arches of a terraced building at the heart of Warsaw’s old town. At just 31, she is the director of Ordo Iuris’s International Law Center.

Founded in 2013, a lot of the think-tank’s work has revolved around sexual and reproductive rights. In 2017, it published a legal opinion which at the time called for widening prosecution for facilitating abortion to include those providing information about the procedure. The following year, it proposed giving the foetus rights to medical treatment. Ordo Iuris is also behind a local government charter on family rights, adopted by almost 100 towns and regions in Poland last year, that pledges to protect the rights of the traditional family by countering an alleged LGBTQ ideology.

According to Pawlowska, the Constitutional Tribunal’s ruling will not spell the end of the organisation’s work on reproductive rights. As she concedes that it has not stopped abortions, she thinks the next steps should be to make sure it is not merely a “facade law”.

“It is a victory, but we have to remember that it is also a first step and it is not the end of a struggle to defend the dignity of each human being,” she says. “It is a problem, that [abortion] is not recognised as a crime in many countries. But introducing some new provisions to the Polish penal code could help.”

One harsh critic of the organisation is Neil Datta, the secretary of the European Parliamentary Forum on Sexual and Reproductive Rights (EPF), a network of Brussels-based MPs. Datta, who has written several reports on the galaxy of organisations across Europe that promote similar ideas and their sources of funding, says none has as successfully aligned itself with state institutions as Ordo Iuris.

“You have many people involved with Ordo Iuris and related Ordo Iuris organisations now occupying state functions in Poland. To the point where the very founder of Ordo Iuris was Poland’s candidate to the European Court of Human Rights just earlier this year,” Datta, who is being sued by Ordo Iuris for allegedly misrepresenting the organisation, tells Al Jazeera.

Left alone with her choice

Despite pandemic restrictions, it took just a few days for Dominika to organise a trip to the Netherlands, where she made an appointment at a clinic specialising in late-term abortions.

It was week 15 of the pregnancy when she flew to Amsterdam in the middle of a third wave of the pandemic in April.

“The women there were so sad and nervous, stress[ed] and so in their own world,” Dominika recounts of her experience at the clinic. Some of the women around her spoke Polish, others spoke Dutch, she remembers, but she did not talk to them. “You don’t even have eye contact, it was strange.”

Due to COVID-19, she had to enter the clinic unaccompanied. None of her friends or family dared criticise her choice – not even her religious father – but she still felt alienated in the Netherlands, despite speaking English well and being able to communicate with the staff at the clinic.

“[I felt] this is something strange. Why am I going abroad to do this?”

The voices of other women speaking Polish to the doctors in the corridors or in other hospital rooms only amplified that feeling.

Four months on, Dominika is seeing a therapist to help her make sense of the experience, while the easing of pandemic restrictions is helping her get back to normal life and work.

“It was [so] hard to make the decision,” she says, even though she knows it was the right thing to do. “I felt that it’s not only about me, it’s also about the child and about his suffering.”

This reporting was supported by the International Women’s Media Foundation’s Howard G Buffett Fund for Women Journalists.