Medical facilities in Poland are now required to structure their operations so that at least one doctor is capable of performing an abortion procedure.
The change follows the amendment to the regulation on the general conditions of contracts for the provision of healthcare services, which took effect on Thursday.
It pertains to the delivery of abortion services by hospitals and mandates that the service provider arrange the service at its own facility in a manner that ensures at least one doctor is capable of performing a procedure that protects the life or health of a woman.
“As a result of the abuse of the so-called conscience clause by some doctors, women often cannot take advantage of their right to a legal abortion procedure,” was emphasized in the justification.
The amendment requires the service provider with a contract with the National Health Fund (NFZ) for “obstetrics and gynecology” services to provide abortion services in situations where pregnancy termination is legal.
The amended regulation stipulates that this service is to be performed “at the location of service provision, irrespective of the doctor’s abstention from performing the service, invoking the conscience clause.”
The amendment also introduces a penalty of up to 2% of the contract value for each violation of the new obligation. It also allows for partial or complete contract termination without notice if the hospital breaches this obligation.
In its justification, the Ministry of Health emphasized that a threat to life or a direct threat to the health of a pregnant woman leads to the exclusion of the conscience clause, based on the Act governing doctors and dentists from December 5, 1996.
According to the provisions of this Act, a doctor may abstain from providing health services that conflict with their conscience. The exception is a situation where a delay in providing assistance could lead to a risk to life, severe bodily injury, or a serious health disorder.
“Therefore, the so-called conscience clause can never be invoked in a situation where there is a threat to the life of a pregnant woman, regardless of the stage of pregnancy. In other cases—those involving health threats—the so-called conscience clause can be applied, provided that delaying medical intervention will not exacerbate the health condition of the pregnant woman,” was detailed.
The ministry reminded that a doctor is required to document the invocation of the so-called conscience clause in medical records. Furthermore, a doctor practicing their profession under an employment contract or as part of a service has the obligation to notify their superior in writing in advance if they intend to invoke the conscience clause.
The Ministry stated that hospitals cannot invoke the conscience clause, as it applies only to individual doctors. It also emphasized that even if doctors use the conscience clause, the state must still ensure access to legal abortions, especially when the pregnancy threatens the woman’s life or health or results from an unlawful act.
As evaluated, this possibility is often significantly limited in practice, as reported by the media, non-governmental organizations advocating for women’s rights, or in the correspondence between the Ombudsman and the Minister of Health, for instance, in June and July 2020.
“These complaints indicate that doctors, invoking the conscience clause, refuse to perform a legal abortion procedure. This necessitates patients, including those whose pregnancy poses a threat to their life and health, to seek hospitals significantly distant from their place of residence. It even occurs that patients have to leave their province,” was clarified.
In October 2020, the Constitutional Tribunal changed Poland’s 1993 abortion regulations, which had allowed abortion for severe fetal impairments or life-threatening diseases. The Tribunal declared this provision unconstitutional, leading to widespread protests. In January 2021, the ruling took effect, invalidating this provision.
It pertains to the delivery of abortion services by hospitals and mandates that the service provider arrange the service at its own facility in a manner that ensures at least one doctor is capable of performing a procedure that protects the life or health of a woman.
“As a result of the abuse of the so-called conscience clause by some doctors, women often cannot take advantage of their right to a legal abortion procedure,” was emphasized in the justification.
The amendment requires the service provider with a contract with the National Health Fund (NFZ) for “obstetrics and gynecology” services to provide abortion services in situations where pregnancy termination is legal.
The amended regulation stipulates that this service is to be performed “at the location of service provision, irrespective of the doctor’s abstention from performing the service, invoking the conscience clause.”
The amendment also introduces a penalty of up to 2% of the contract value for each violation of the new obligation. It also allows for partial or complete contract termination without notice if the hospital breaches this obligation.
In its justification, the Ministry of Health emphasized that a threat to life or a direct threat to the health of a pregnant woman leads to the exclusion of the conscience clause, based on the Act governing doctors and dentists from December 5, 1996.
According to the provisions of this Act, a doctor may abstain from providing health services that conflict with their conscience. The exception is a situation where a delay in providing assistance could lead to a risk to life, severe bodily injury, or a serious health disorder.
“Therefore, the so-called conscience clause can never be invoked in a situation where there is a threat to the life of a pregnant woman, regardless of the stage of pregnancy. In other cases—those involving health threats—the so-called conscience clause can be applied, provided that delaying medical intervention will not exacerbate the health condition of the pregnant woman,” was detailed.
The ministry reminded that a doctor is required to document the invocation of the so-called conscience clause in medical records. Furthermore, a doctor practicing their profession under an employment contract or as part of a service has the obligation to notify their superior in writing in advance if they intend to invoke the conscience clause.
The Ministry stated that hospitals cannot invoke the conscience clause, as it applies only to individual doctors. It also emphasized that even if doctors use the conscience clause, the state must still ensure access to legal abortions, especially when the pregnancy threatens the woman’s life or health or results from an unlawful act.
As evaluated, this possibility is often significantly limited in practice, as reported by the media, non-governmental organizations advocating for women’s rights, or in the correspondence between the Ombudsman and the Minister of Health, for instance, in June and July 2020.
“These complaints indicate that doctors, invoking the conscience clause, refuse to perform a legal abortion procedure. This necessitates patients, including those whose pregnancy poses a threat to their life and health, to seek hospitals significantly distant from their place of residence. It even occurs that patients have to leave their province,” was clarified.
In October 2020, the Constitutional Tribunal changed Poland’s 1993 abortion regulations, which had allowed abortion for severe fetal impairments or life-threatening diseases. The Tribunal declared this provision unconstitutional, leading to widespread protests. In January 2021, the ruling took effect, invalidating this provision.
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