On April 8, 2022, the trial of Justyna Wydrzyńska, an activist promoting universal access to abortion who provided abortion pills to a woman who was a victim of domestic violence, began in the Warsaw-Prague District Court. The defendant faces up to three years in prison. The case arouses great emotion due to its nature, and the Ordo Iuris Institute joined the proceedings as a social organization. More about the case at Justyna Wydrzynska’s trial has begun.
iFamNews Poland speaks with attorney Jakub Słoniowski of the Ordo Iuris Institute.
Do you feel offended when pro-abortion activists call you a “fetal defender”?
I am not offended. A fetus is a human being in the early stages of development.
What was Ms. Justyna Wydrzyńska charged with?
Justyna Wydrzyńska is accused of committing a crime under Article 152, paragraph 2 of the Penal Code. This provision envisages a penalty of up to three years of prison for assisting or inducing a pregnant woman to terminate her pregnancy in violation of the Code. She is also accused of committing an act under Article 124 of the Pharmaceutical Law, which carries a penalty of imprisonment of up to two years. This provision criminalizes the marketing or holding for marketing of a medicinal product without a marketing authorization.
According to Justyna Wydrzynska, the woman who received the abortifacients from Wydrzynska had previously asked a feminist organization to help her have an abortion because she had trouble ordering the pills online due to the pandemic and restrictions on cross-border traffic. Ms. Wydrzynska was very concerned about the case because the family situation the woman was allegedly in was similar to her personal story. In doing so, she claims that the funds she provided were for her own use.
It is not yet known what the exact line of defense will be, but it is possible that it will aim to convince the court to give extraordinary leniency or even waive the punishment. This will depend, among other things, on how the court assesses the defendant’s degree of guilt and the degree of social harm of her act.
According to the defendant, she acted under the influence of emotion and compassion, and her goal was not to cause the woman she was helping to have a miscarriage – she wanted to ensure that she had choices, peace of mind and control over her fate, and a sense of security. Therefore, she prepared an envelope with abortifacients, but she did not send it personally – her son carried the envelope to a parcel machine, not knowing what was inside or to whom it was addressed.
Due to the failure of witnesses to appear, the hearing was adjourned until July 14, 2022.
What is the involvement of the Ordo Iuris Institute in the proceedings?
Article 90 of the Code of Criminal Procedure provides that a social organization may participate in the proceedings if there is a need to protect a social interest or an individual interest covered by the statutory tasks of the organization, in particular, the protection of human freedoms and rights. The Institute has indicated its willingness to join the proceedings on the grounds that the promotion of human rights, including the right to life from conception, are included in its statutory objectives.
What powers does a community organization have as a participant in the proceedings?
A community organization is not a party to the proceedings–it is not an accuser or defender, it is not a public prosecutor or private prosecutor, and it does not side with an auxiliary prosecutor.
The community organization has the opportunity to attend hearings, speak and submit written statements, and may speak in closing statements at the end of the proceedings. It may not make requests for evidence or ask questions of witnesses or parties–but it may ask the Court to consider asking a specific question of a witness or admitting evidence.
Thus, statements appearing in the media, such as that Ordo Iuris is a “quasi-prosecutor”, are completely unfounded. It is not true that–as the activists of the Abortion Dream Team claim–Ordo Iuris represents the wronged party, claiming that this wronged party is a “fetus”. It is also false that Ordo Iuris represents the father of the child whose mother received abortifacients from Justyna Wydrzyńska. He is not a party to this proceeding because he did not appear as an auxiliary prosecutor prior to the commencement of the trial. He would then be able to appoint an attorney and exercise the rights of a litigant, such as filing motions for evidence and asking questions of witnesses. Our role is very different–we do not represent the victim or any other party in these proceedings. Criminal proceedings have certain goals–not just the administration of justice, but also individual and general prevention–and this is what we have in mind when we take part in them. Ordo Iuris wants to be an advocate for unborn life, which is protected by the Polish law, among others. It is precisely in this way that it is a crime to assist in an abortion performed in violation of the legal grounds for its permissibility, of which Justyna Wydrzyńska is accused.
What community organizations were admitted to participate in the proceeding?
Apart from the Ordo Iuris Institute, no organization has come forward. The hearing was attended by a representative of the Helsinki Foundation for Human Rights, who presented the Court with an opinion of an amicus curiae.
Justyna Wydrzyńska’s counsels strongly objected to Ordo Iuris’ participation in the proceedings. To them our goal is unclear, and they have a vague indication of the social or individual interest that we wish to protect by participating in the proceedings. Our request was quite general because, not having the status of a party, not having knowledge of the detailed course of the proceedings and not having access to the file, we were not able to formulate a detailed justification. In the courtroom, I was able to verbally clarify the issue, address these allegations, and convince the court to allow Ordo Iuris to participate in the proceedings.
Those present as audience members included a representative of “Lawyers Pro Abo,” an informal “group of women lawyers who support the right to abortion as a realization of human rights.”
Justyna Wydrzyńska was among those who appeared on the famous cover of Wysoki Obcasy – Abortion is OK. The Abortion Dream Team has partnered with Women on Web, an organization that specializes in distributing resources for medication abortion.
Does the Polish law have the tools to thwart Women on Web? Abortion pills are ordered by girls without doctors first checking their professional medical history, and in such conditions taking abortifacients can lead to the death of not only the unborn child but also its mother.
This problem on the legal side has several dimensions. The Criminal Code criminalizes assisting in the performance of an abortion in violation of the Act. The Pharmaceutical Law in Article 124 states that marketing or keeping for marketing a medicinal product without having a marketing authorization is punishable. Marketing of medicines, conducting business in the pharmaceutical market is regulated. After all, not everyone can open a pharmacy or a drug wholesaler, and their sale in ordinary stores is legal only to a very limited extent (concerning painkillers, for example). Therefore, a number of criminal law provisions contained in the Pharmaceutical Law, and not just the previously mentioned Article 124, sanctions failure to comply with the rules governing the marketing and distribution of pharmaceuticals.
In addition, the professions of doctor, nurse and midwife are professions whose practice is strictly regulated by law. The effectiveness of these rules is also secured by sanctions–offenses are also committed by persons who provide health care services without the required license to practice.
Therefore, a number of doubts arise in connection with the activities of Women on Web: persons active in this organization recommend taking abortifacients, advise women on how to use them, inform them about possible risks and dangers connected with it, and offer telephone and online “assistance” during a drug-induced abortion (activists of the Abortion Dream Team call themselves “abortion doulas”). An ADT activist, Ms. Broniarczyk, said in an interview how women who have chemical abortions with their help send them pictures of the aborted baby to make sure the abortion was successful…
The above actions may therefore constitute violations of the law in these three areas: criminal law, pharmaceutical law and the law governing the professions of the doctor, nurse, and midwife.
As for the practice known as abortion tourism, I am not aware of any final conviction of anyone for organizing or participating in it. This is not to say that such issues do not exist. The Ordo Iuris Institute filed notices to the prosecutor’s office in connection with the discovery of such information. Despite the fact that abortion activists publicly brag about helping women with abortions, citing thousands of cases a year, law enforcement has remained passive. It is not yet clear whether assisting in abortion in the form of abortion tourism constitutes a prohibited act under Article 152, paragraph 2 of the Penal Code. The controversy comes from the fact that in countries where abortion occurs, it is legal. However, for example, Prof. Andrzej Zoll states in his commentary to Article 152, par. 2 of the Penal Code that it is a crime to solicit or aid an abortion in violation of the law. The abortion is a sui generis act, not a participation in the abortion, and thus the elements of the prohibited act are realized, regardless of whether the abortion itself was performed in Poland or in a country where the act is not prohibited.
The legal discussion on the above topics can therefore by no means be considered closed.