Along with the judgment on the so-called eugenic abortion by the Polish Constitutional Tribunal, the dispute over this delicate matter flared up again. The temperature of the debate should not come as a surprise as we are dealing with a conflict of fundamental human rights – the right to respect for women's private and family life czy też the right to freedom to decide about their life and body and the right to life of the unborn.
Mixed into the aforementioned „conflict of values” was also religious freedom, called out by ruthless attacks on churches or Catholic clergy, made by circles protesting against the verdict.
Looking at the case through the prism of human rights, it can be concluded that the arguments of the protesters against the judgment are protected under the European Convention on Human Rights in its Article 8, which speaks of respect for private and family life (possibly also in Article 3 of the Convention, which prohibits inhuman or degrading treatment or punishment). The arguments of the other party to the dispute are contained in Article 2 of the Convention, which speaks of the right of every human being to life. Although this is a significant simplification – after all, the Strasbourg authorities, which guard the observance of the European Convention, emphasize that there is no such thing as the right to abortion and certainly it cannot be derived from the protection of private and family life. On the other hand, the same institutions deciding on abortion cases do not, in principle, mention the right to life of a conceived child among the competing values in this context.
In practice, the European Court of Human Rights (or the Commission before) in most cases related to abortion referred to the proven concept of the so-called margin of appreciation that can be seen as „room for maneuver”, freedom of choice left to individual states by the convention bodies. It is assumed that the national authorities are in a better position to assess the facts of a given case or interpret the law in force in the country. Leaving discretion to national authorities also reflects respect for the democratic choices of individual national communities.
With this in mind, let us return to the question posed in the title of this text. So, how to resolve disputes concerning fundamental values? It seems that we have to jump „level higher” for this, from a legal dispute to the political and social concepts behind the shape of the system of modern states of Western civilization. Interesting arguments are provided by the British philosopher John Gray, who proposes a specific combination of liberal and communitarian assumptions, through the so-called agonistic liberalism. It is, as the author himself writes: gatunkiem liberalizmu, który nie jest ugruntowany w racjonalnym wyborze, lecz w ograniczeniach racjonalnego wyboru – ograniczeniach narzuconych przez radykalne wybory, do których jesteśmy często zmuszani; wybory pomiędzy dobrami, które są zarazem wewnętrznie konkurencyjne, często z istoty swojej niemożliwe do połączenia, a czasami nieporównywalne (Gray, J. 1990).
To the question – how to settle pluralistic disputes – Gray answers: based on the culture of the community, considering modus vivendi as the only possible method. Thus, all ideological disputes can only be resolved provisionally and temporarily, thanks to the historical authority of the state and the common (at a given time) „concept of a good life”.
What role does religious freedom play in this context? Very important. It protects the right of church institutions (and religion in general) to exist in the public space, to shape the world view of citizens so that their concept of a good life could prevail in a conflict. And although it is not so that a child as a person in the context of the conceived life can only be spoken of through the prism of faith (although the 1989 Convention on the Rights of the Child mentions in its Preamble the legal protection of the child both before and after birth), it is undoubtedly the Catholic Church, through its teaching, that plays a key role in building such an understanding of conceived life in a significant part of Polish society.
dr Przemysław Komorowski
Jagiellonian College in Toruń
Gray J., Agonistic Liberalism, [in:] idem, Enlightment’s Wake. Politics and Culture at the Close of the Modern Age, Routledge, London 1990.
ECHR judgment of 16 December 2010, application no. 25579/05, art. 214.
 Cf. e.g. A, B, C v. Ireland, judgment of the ECHR of 16 December 2010, application no. 25579/05, art. 214.
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