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A diminished rule of law in Poland sees the reproductive rights of women eroded

Charmaine Manuel | Europe & Eurasia Fellow

Poland has seen months of protests after the country’s highest court ruled in October 2020 that abortion in the case of fetal abnormality was unconstitutional. This ruling significantly limits the reproductive rights of Polish women which have been steadily attacked by Poland’s conservative Christian Law and Justice Party (PiS). Now the only legal reasons for a woman to procure an abortion are in the case of rape, incest, or if the pregnancy threatens a woman’s life.

It is believed that 98% of terminations in Poland are due to fetal defects, making the ruling in effect a near-total ban on abortion. Like other nations in the former Eastern Bloc, Poland is in the grip of a right-wing authoritarian government. The abortion ruling is a part of a broader move to dismantle individual and civic freedoms–one that goes hand-in-hand with assaults on freedom of the press, LGBTQ rights, and the independence of the judiciary.

The history of abortion in Poland

Under Communism, abortion was readily available in Poland. So much so, that it became a frequented destination for women from other parts of Europe who needed to terminate an unwanted pregnancy. In 1956, it was offered on partial grounds to women who faced difficult socio-economic circumstances but by 1959, it was unrestricted. Poland’s supposedly liberal approach on abortion was largely due to a lack of contraceptives (which were often of poor quality) and general misinformation on alternative methods of preventing pregnancy. Abortion was therefore used as the principal means of birth control. However, after the fall of communism, Poland’s abortion laws went from being one of the most liberal in Europe to the most restricted, a transformation that has generally been credited to the influence of the Catholic Church.

In post-Communist Poland, the Catholic church holds a great deal of sway over Polish culture and politics, having played a key role in supporting anti-regime activism that led to the overthrow of the communist order in 1989. With more than 80% of the population identifying as Roman Catholic, politicians are dependent on the church’s endorsement, placing the church in a prime position to lobby for social reform. While both left and right-wing politicians court favour with the church, PiS' ties with the church hierarchy are said to “verge on the symbiotic.”

A compromised rule of law

PiS won over voters in 2015 with generous socio-economic promises that included a child subsidy program, doubling of the minimum wage by 2023 and annual cash bonus payments for pensioners. Once in power, the party compromised the independence of the Constitutional Tribunal (the country’s highest court) by stacking it with loyalists, a move that led the court’s former judges to describe the institution as “virtually abolished.” This takeover of the legal system is the key means through which the party has been able to push through its abortion ban.

In 2016, PiS unsuccessfully tried to pass the abortion ban via parliament causing a mass protest of 30,000 women which eventually led lawmakers to back down. Instead of trying to push the legislation through parliament once more, PiS turned to the party-controlled Constitutional Tribunal to review the law. In handing down the court’s ruling, the tribunal’s president Julia Przylebska said that, because Poland’s Constitution includes a clause on the protection of human life, termination amounts to “a directly forbidden form of discrimination.”

The consequences for women’s rights beyond Poland

These developments in Poland are not an isolated example, but part of a regional pattern of authoritarian strongmen eroding women’s rights. In fact, on the day of the ruling, Poland along with thirty other countries endorsed a US-led declaration (which was only recently reversed by President Biden) that affirmed that “there is no international right to abortion.” European signatories included Poland’s authoritarian neighbours Hungary and Belarus. In addition, the Hungarian and Polish governments have signalled moves to rescind the Istanbul Convention, a treaty that sets legally binding standards to prevent gender based violence.

Faced with falling birth rates, Hungary’s Viktor Orbán has linked the country’s anxieties around immigration with his vision of a society based on “family values” to implement policies that reward women who carry out their traditional “biological role.” Women who have four or more children pay no income tax and couples can access bank loans secured by the promise to have children. While IVF clinics offer free treatment cycles for all women, gay women and women over 40 are excluded. Rights groups fear that Orbán’s conservative ideology could lead to Hungary’s abortion laws (which are already restricted) going the same way as Poland’s and cause a broader retreat of women’s rights across Eastern Europe.

The European Union faces a challenging task ahead of it in bringing Poland and its illiberal neighbours in line with the values of EU membership such as respect for the rule of law and human rights. Solutions such as making access to the COVID recovery funds contingent on compliance with democratic norms have had little success as both Poland and Hungary have resorted to vetos and political gridlocks to oppose these measures. The EU therefore finds itself in a dangerous situation of having to bankroll non-compliant states that trample on rights and institutions with impunity. But against this dismal situation lies one gleam of hope – the strength and energy of the protestors who have defied COVID-19 restrictions and endured frigid weather and beatings to come out in droves and the women’s rights activists who continue to shuttle women through underground networks for abortions outside Poland. Their continued resilience is a comforting sign that Polish women are not ready to give up their fight.

Charmaine Manuel is the Europe & Eurasia Fellow for Young Australians in International Affairs.

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