The article presents the circumstances in which Art. 38 of the Constitution was adopted and the discussions that took place in the constitutional committee of the National Assembly, during the sessions of the National Assembly and, finally, during the referendum campaign preceding the adoption of the Constitution. The authors indicate that both among drafters of Art. 38 of the Constitution and among the general public there was no doubt that this provision did not extend legal protection to the prenatal period. This decision was made consciously, precisely in order for the constitution not to limit the possibility of abortion. The authors dispute the arguments raised by the Constitutional Tribunal in the justification of its judgment of 28 May 1997, as well as in the justification provided by the panel that issued the judgment on 22 October 2020. The authors also point out that formally there were no legal grounds for promulgation of the judgment of the Constitutional Tribunal of 28 May 1997. These were revoked upon the entry into force of the Constitution on 17 October 1997. Consequently, this judgment cannot be an effective source of law.