On October 22, Poland’s Constitutional Tribunal ruled that abortions for fetal abnormalities violate the Constitution, effectively imposing a near-total ban on abortion. Tribunal’s president Julia Przyłębska said that allowing abortions in cases of fetal abnormality legalized “eugenic practices“.
“The Tribunal maintains the position that human life is of value at every stage of development and should be protected,” said the court’s rapporteur, Justyn Piskorski. The verdict cannot be appealed.
The ruling has changed the so called “abortion compromise” of 1993 which only allowed abortion in the event of rape, incest, malformation or incurable illness of the fetus or a serious health threat to the mother. This, one of the strictest abortion laws in Europe, was the “compromise” between the government and the church.
The very word “compromise” used and supported by most of the mainstream parties has been recently challenged by the left, progressives and women’s rights groups. Not only because they believe that the state should not compromise anything with bishops, but also because even this very conservative law is not executed properly.
Doctors have been refusing the procedure because it conflicted with their faith. Hospitals have been turning away women seeking legal abortions. There are entire regions with not a single hospital that offers the procedure and women are often forced to give a birth.
Regardless these harsh circumstances, the ruling Law and Justice Party (PiS) and the Catholic Church have been pushing for years to limit rights to abortion for Polish women even more. In 2016 a group of PiS MPs supported a bill on total abortion ban.
According to the amendment, women found to have had abortions as well as doctors found to assist in an abortion could be punished with prison sentences.
In response, thousands of women marched through the streets of Polish cities and towns wearing black as a sign of mourning for their reproductive rights. Many of them were PiS voters, furious about this proposal. The government panicked and eventually rejected the initiative.
In 2018 the church again demanded to restrict the law. This time the government revised the legislation to make it “less radical”, including dropping criminal penalties for women who have abortions. However, women again went to protest. The Office of the United Nations High Commissioner for Human Rights and many other international bodies have also condemned the proposed law. Under the pressure PiS stepped back again.
In pursuit of abortion ban, Jarosław Kaczyński, leader of PiS, decided to use another method. Instead of opening another debate in the parliament, Polish ultra-conservatives decided to change the law through the Constitutional Tribunal.
The same Tribunal that was politicized and lost its independence in 2015 and 2016, which provoked mass demonstrations and launch of the EU Article 7 procedure. Today the Tribunal is dominated by PiS-appointed judges and led by Julia Przyłębska, wife of PiS ambassador to Germany and Kaczyński’s long term friend.
In December 2019, a group of 119 MPs, mostly from PiS and far-right Confederation Party, submitted a request to the Tribunal to assess whether abortion carried out due to serious and irreversible birth defects contravenes the constitutional principles.
“I would really like this kind of abortion to be at least restricted to the most extreme cases”, Jarosław Kaczyński declared.
The current decision of the Tribunal equals almost full abortion ban in Poland. Some 98% of the ca. 1.100 legal abortions that take place in Poland each year are carried out due to foetal abnormalities. It is estimated that over 100.000 abortions are carried by Polish women every year illegally, in the underground, and in neighbouring countries – such as Germany and Slovakia.
While the new ruling was welcomed by the church and many PiS politicians, the opposition tears the ruling to shreds.
For example, Adam Szłapka, leader of the liberal Nowoczesna party, said that “the pseudo-tribunal sentenced Polish women and cooked hell for them.”
Dunja Mijatovic, the human rights commissioner of the Council of Europe, tweeted: “Today’s ruling of the Constitutional Court means underground/abroad abortions for those who can afford & even greater ordeal for all others”. Women’s rights organizations warned that the decision would in many cases force women to give birth to terminally ill children and will “legalize torture through the back door”.
One of the movements, “Strajk Kobiet” (English: Women’s Strike), started organizing protests all over Poland. Already during the day of the Tribunal’s announcement, many gathered in front of the parliament and since then, people have been protesting every day at various locations in Warsaw and other cities.
On Friday, October 30, 150.000 gathered in the center of the Poland’s capital city; demonstrations across the country drew an estimated 800.000 participants. Foreign media, including CNN, commented that demonstrations of this scale were last seen during times of the Solidarity movement of the 1980s.
The majority of the protesters is very young. For the first time since PiS came to power, big groups of high-school students went on the streets and flooded social media. Some of them may support the feminist movement organized around Women’s Strike and its leader Marta Lempart.
Lempart demands not only annulment of the Tribunal’s ruling, but also liberalization of the abortion law.
“The revolution which has begun is not just about abortion. It’s a struggle for freedom which has brutally been taken from us, and abortion is just a symbol,” she said.
Lempart wants a “secular state with human rights and freedom for all”. She stresses that the next majority in the Polish parliament Sejm should “legalize abortion, bring in marriage equality and many other things”.
Lempart also supports the radical language of the street. For the first time in Poland, peaceful protesters use very vulgar slogans. “Wypierdalać” (“Fuck off”) has become the slogan of the demonstrators, who say that PiS crossed the ultimate line and they won’t be polite anymore (“We were nice when they demolished the courts, now it’s too late”).
The “f word” is chanted in front of the parliament, the Tribunal, offices of right-wing MPs, but also Kaczyński’s house in Warsaw or Przyłębska’s residence in Berlin.
The protesters even ruthlessly attacked the church during the protests. Top archbishops were not only insulted verbally; some protesters have even entered churches and disrupted services. It was something unimaginable in ultra-catholic Poland before. It seems that the church has irretrievably lost its special, untouchable, position in the Polish society.
Of course the government uses the protests in churches in its anti-opposition propaganda. State-owned TVP pictures Women’s Strike as a dangerous and „satanistic“ (sic!) movement. Jarosław Kaczyński has been especially dramatic in his criticism and called on his followers to “defend Polish churches at any price”.
As an aftermath, members of extreme right organizations and football hooligans formed voluntary groups to “protect” church building. Some of them even started to physically attack protesting women on the streets.
PiS is also blaming the demonstrations for the Covid-19 crisis as the number of new infections is significantly increasing in Poland in the last days. In fact, the government lost any control over the situation and is under criticism from all sides about its inefficiency in its fight against the pandemic. The Prime Minister Mateusz Morawiecki even limited size of any gatherings to five people.
In other words, PiS effectively made any public meetings illegal. But Women’s Strike says that they use the right for “spontaneous protests”. High officials of the government and of the PiS-controlled prosecutor’s office declared that protest organizers should be punished with up to 8 years of prison.
The protests take place not only in Warsaw and big cities, but also in smaller towns, including those where PiS has been always winning. Moreover, in many locations women rights activists are supported by protesting farmers or taxi drivers. PiS is losing in all opinion polls.
In a survey for the radio RMF FM the governing party would lose the majority in the Sejm with 30,9%. According to the latest polls, 70% of Poles, including 40% of PiS voters, believes that Jarosław Kaczyński should leave his position of a party leader.
But what’s next? Opinion polls suggest that 45-50% of Poles prefer to keep the existing law. Only 10-15% favour further restricting it, while around 30-40% want it to be liberalized. There are a few options on the table. President Duda has suggested a new “compromise law”.
In fact, this would be a “compromise” between the 1993 law and the Tribunal’s ruling. However, the protesters demand a liberal change. Moreover, such law would mean de-legitimization of the Tribunal, as its rulings should be final and can’t be changed by regular bills.
Another solution, that also goes against the Tribunal’s authority, could be a prime minister’s decision not to publish the ruling in the official gazette. Some politicians suggest a referendum on abortion and independent lawyers believe it’s a good moment to do away with the politicized Tribunal, remove illegally appointed judges and create a new body.
Marta Lempart says: “We’re prepared to fight till the end.”
New protests will block Polish cities today, tomorrow, the day after tomorrow…
The article was originally published in German at: https://www.freiheit.org/frauenrechte-abtreibungsrecht-polen-streikt