“They are closing the circle”: abortion and rule of law in Poland

By Stefano Cisternino

The last decade has seen Eastern Europeans further integrating in the Union, mutually growing their economies and enjoying free movement across borders. Although beneficial for developing markets and civil rights, liberal values have often been met by major identitarian pushes, bringing discussions of sovereignty back on centre stage.

On 8 October 2021, the Polish Supreme Court rejected the primacy of EU law over its national legislation, declaring certain articles of the EU Treaty to be incompatible with the Polish Constitution.

These challenges have also led to uncertainty surrounding human rights, threatening the lives of some of the most vulnerable in the country: Ukrainian refugees. Then, with the battle for abortion raging in full force in the US, the qestion beckons our attention.

A clash at the centre of the European idea

The dispute between the Varsovian government – led by the conservative Law and Justice party (PiS) – and Brussels concerns four areas: 1) LGBTQ+ rights; 2) abortion; 3) freedom of information; 4) the reform of the Polish judicial system.

“Poland has taken a step towards the abyss of ‘legal Polexit’,” says Jakub Jaraczewski.

A series of ad hoc governmental appointments compromised courts’ independence. It is no wonder that Brussels insistently requested Warsaw to comply by 16 August with the EU Court of Justice’s abolition of disciplinary sanctions against judges. Yet Polish Prime Minister Mateusz Morawiecki had already appealed in March, arguing that Brussels cannot interfere with member states’ judicial systems. He justified the reforms as “necessary” to overcome communist-era influences.

However, it is important to stress how the ruling of the 7th of October goes beyond this scope, frontally attacking Articles 1 and 19 of the EU Treaty (integration of member states and the supremacy of EU law over national law).

The legal challenge moved by Morawiecki is unprecedented. It is, in fact, the first time one of the 27 EU leaders has ever questioned it.

Recent events show the distancing from European founding values and respect for fundamental human rights – such as the proclamation, in January, of one of the most restrictive anti-abortion laws in Europe.

Polexit on the horizon?

The ruling’s scope is not merely legal, because it shakes the cultural identity of the Union. Although Morawiecki assures that “Poland’s place is and will be in the family of European nations” – and that joining the bloc was “one of the highlights of the last decades” for the country – many fear the country may exit from the EU.

“Poland has taken a step towards the abyss of ‘legal Polexit’,” says Jakub Jaraczewski, research coordinator at Democracy Reporting International. He argues that a strong reaction from the Court of Justice is likely to follow, to protect European integrity against a rogue member state (e.g. exempting Poland from judicial cooperation mechanisms, such as the European arrest warrant). Warsaw’s move is worrying many within Poland: dozens of people protested against the ruling in front of the court building, with thousands taking to the streets afterwards.

The anti-abortion law

The new law allows to terminate pregnancies only in case of rape, incest, or if giving birth would endanger the woman’s life. However, in Poland, 98 percent of abortions in 2019 were due to abnormal fetuses. “Abortions happen whether it is allowed or not,” Evelyn Regner (chair of the European Parliament’s Committee on Women’s Rights and Gender Equality) emphatically reiterated. The Polish legislation pushes women to act illegally, placing their lives at risk.

The European Parliament has repeatedly called for the right to self-determination of the body to be enshrined in the European Convention on Human Rights. It also called for EU development funds to be linked to members’ respect for the rule of law. “We must oppose such attacks on fundamental human rights at the heart of Europe.” 

Juan Fernando López Aguilar, chairman of the Committee on Civil Liberties, Justice and Home Affairs, also strongly condemned the new law in Warsaw: “This decision shows once again that attacks on the rule of law, democracy, and fundamental rights in Poland need to be addressed as a matter of urgency”.

Family members and women’s rights NGOs complain that she could have been saved, had they intervened.

The ensuing protests (weekend between 06/11 and 08/11)

Poland took to the streets again.

In the tens of thousands protested in 80 cities, in memory of the 30-year-old woman, 22-week pregnant who died of septic shock on 22 September after doctors refused to perform an abortion despite a malformed fetus. Family members and women’s rights NGOs complain that she could have been saved, had they intervened.

Among the protesters were political figures such as the leader of the Polish opposition party Civic Platform (Po), Donald Tusk. The former European Council said that “something very dangerous has been happening in recent years and months”, with “ideology in power” being exchanged for the will of the people, he said.

Civil society’s antibodies

According to the activists of Stajk Kobiet (i.e. “Women’s Strike”), the Constitutional Court’s ruling extending the ban on abortion “is not a ruling and has no legal value”. “It is illegal because some members were appointed in a controversial way and in fact not formally legal”, argues Dominika Kasprowicz. The activists of Ogólnopolski Strajk Kobiet are now collecting signatures, together with the left-wing Lewica party, to propose a new abortion bill.

“We commissioned a poll and found out that about 70 percent of Poles support the women’s strike and what we are trying to achieve,” Kasprowicz says: a society that no longer identifies with its government. At the same time, people are scared; and among them are medical personnel.

For activist Dominika Kasprowicz, activist and founder of Ogólnopolski Strajk Kobiet, the government in Poland today is a “minority government”, led by the right-wing Law and Justice party (PiS). There is also no shortage of stories of violence. “One 19-year-old friend was beaten up during the protests: she now has severe PTSD. Another friend had her arm broken and had three operations. She doesn’t believe in institutions anymore”.

On the 2nd of December, after a Senate hearing, Polish representatives rejected the new abortion law which, had it been approved, would have introduced a total ban on abortion.

No sign of a looser grip on abortion

The Polish crisis is not only political, but also humanitarian: in addition to rampant homophobia, illegal abortions are the order of the day. Those who can afford it, go to Germany or the Netherlands, which have offered to help Polish women.

These countries passed a resolution granting them free-of-charge abortion: an initiative reserved for humanitarian crises. Approx. 34 000 women have since accepted this offer.

On the 2nd of December, after a Senate hearing, Polish representatives rejected the new abortion law which, had it been approved, would have introduced a total ban on abortion, including in case of rape, incest and danger to women’s lives. Behind it is undoubtedly the hand of Ordo Iuris, a fundamentalist religious group which – according to an investigation by the investigative journalism website Oko Press – receives substantial state funding due to being extremely close to PiS.

In recent years, this group has been behind some of the most radical laws passed in Poland, aimed at equating sex education with pedophilia, creating “LGBTQ+ free zones” and scrapping the Istanbul Convention (the European Convention against violence on women) to replace it with a charter entitled “Yes to the family, no to gender”.

“They are closing the circle”, commented Strajk Kobiet co-founder Marta Lempart, who now risks up to eight years in prison for her activism.

The figure of the super-prosecutor has also been introduced, in an effort to monitor the behaviour of Poles – and in particular women – by accessing their personal and health data. The government wants to set up an Institute for the Family and Demography, headed by the Catholic fundamentalist Bartłomiej Wróblewski.

“They will be able to monitor women to see if they want to have an abortion or take the morning-after pill, persecute rainbow families, snatch children from LGBTQ+ people, prevent divorces. They are closing the circle“, commented Strajk Kobiet co-founder Marta Lempart, who now risks up to eight years in prison for her activism and has been forced to leave her home because of constant threats.

The Health Minister is allegedly setting up a database of all pregnancies – a practice reminiscent of the Ceausescu regime. In 1965, the Romanian dictator banned abortion, and to ensure its respect, he created a surveillance programme including compulsory gynecological examinations.

There is ample evidence that organisations under the control of Ordo Iuris have established links in many EU member states.

Today that older generation “is finally standing up for its rights. While the young generation already has the fight in its blood and guts. They go out into the streets and say: “F*******i. This is not the country I want to live in and I’m going to change it because I don’t like it”. They are not afraid. And they don’t believe in compromise, whereas we have been repressed for so long”.

Not a Polish-only situation

What is happening should not be seen as the mere attitude of the Polish state: these inhumane actions could spread to the rest of Europe. I do not mean to be factionalist, as there is ample evidence that organisations under the control of Ordo Iuris have established links in many EU member states. These organizations have begun testing the waters with ultra-conservative agendas: in Croatia on the Istanbul Convention; in Estonia with a referendum on LGBT rights; and in Lithuania on abortion.

Unless Europeans take conscience of the dramatic changes taking place in Poland and use all their instruments to defend democracy, the rule of law, and above all the very principle of freedom, this fate will be shared by many other European countries.

Against absolutism all that remains is to shout “To Jest Wojna!”

Ukrainian refugees receive a bleak anti-abortionist welcome

More than 2 million Ukrainians have found refuge in Poland since the beginning of the war in Ukraine. They are mostly women and children. Morawiecki has long been hostile to migrants, although today Poland is first by number of hosted Ukrainians refugees, contrasting the country’s attitude towards non-European ones.

Poland denies abortion to Ukrainian women refugees too. According to many humanitarian organizations and associations, including Human Rights Watch, Ukrainian women and refugees – in many cases “raped by the Russians”, as denounced by the same associations and many Ukrainian parliamentarians – are denied abortions in the country with the largest number of Ukrainian refugees since the war began.

They know it is almost impossible to have an abortion in Poland for legal reasons and so many prefer to stay in war-torn Ukraine and try their luck there.

Ukrainian refugees, however, having escaped the devastation of war, now find themselves having to fight a battle for the right to abortion. In Poland, abortion pills have never been readily available, let alone pregnancy termination in hospitals. But now, since the new law came into force last year, it has become virtually impossible to terminate a pregnancy in Poland. In fact, the conservative government has ruled that abortions may exclusively be performed in case of rape, incest or if the mother’s life is at risk due to malformations of the foetus. All other cases are excluded and prohibited.

“Ninety-nine Ukrainians have contacted us since 1 March asking about abortion and the morning-after pill,” Justyna Wydrzyńska, co-founder of the pro-abortion organization Abortion Dream Team, told GzeroMedia. “We have received information from activists and volunteers,” Wydrzyńska added, “who have traveled to Ukraine that women raped in Bucha are afraid to come to Poland because of Polish laws. They know it is almost impossible to have an abortion in Poland for legal reasons and so many prefer to stay in war-torn Ukraine and try their luck there.”

“The situation for Polish women is extremely difficult. Women often call me from the hospital, those in difficult pregnancy situations have suffered terribly in the last period” says Krystyna Kacpura, a well-known advocate of women’s rights in Poland and director of the Federation for Women and Family Planning.

At the end of January, a woman in Poland died because she was denied an abortion. Agnieszka T., 37, pregnant with twins, died after having carried a dead foetus for about a week. The first dead foetus led to the deterioration of her health, then the death of the second foetus and hers. “This is proof of the fact,” her family wrote in a social media post “that the current government has blood on its hands”.

New challenges

Poland is just one of many states gradually drifting towards extreme conservative positions, imposing limits on abortion, and consequently damaging not only Polish women, but also Ukrainian female refugees. The end of the main pandemic phase and the current Russian invasion highlight the fragility and necessity of the rule of law in times of major crisis.

Thumbnail photo: Zuza Gałczyńska

Photo 1: Krzysztof Kapica

Photo 2, 3, 4: Bartos Mateńko

Photo 5: Aleksandra Szmigiel

Stefano Cisternino holds a BSc in International Studies (University of Trento) and a MSc in Peace and Conflict Research (University of Uppsala). He is a story-driven researcher on ethno-social dynamics of migration phenomena but also on the psychophysical effects of violent conflicts. His current research focuses on the impact of new technologies on the global social constructs.

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