Black March in support of abortion rights, Łódź, October 2nd 2016. Uploaded to Wikipedia by Zorro2212, licensed under Creative Commons CC BY-SA 4.0
The news of the death of a woman in Poland due to being denied an abortion has reignited the debate around the country’s restrictive reproductive laws and their incompatibility with Poland’s European Union (EU) membership status. The woman, known as Izabela, was denied an emergency termination in September 2021, despite the pregnancy being ‘hopeless’, causing her to die from sepsis hours after the fetus was finally removed. This has sparked controversy surrounding Poland’s restrictive laws and their divergence from the rest of Europe.
The situation in Europe
The EU has recently taken steps to advance reproductive rights. The European Parliament has demonstrated its support for women’s reproductive freedom, most recently in June 2021 when it declared abortion access to be a human right. Similarly, the United Nations Human Rights Committee asserted in 2018 that abortion access and prevention of maternal mortality are human rights. However, EU Commissioner for Equality, Helena Dalli, acknowledged in 2021 that the EU does not have jurisdiction over abortion laws, adding that it remains a matter for national legislatures to decide. Furthermore, the European Convention on Human Rights does not explicitly refer to the concept of reproductive health or reproductive rights, instead requiring interpretation from Article 8’s ‘Right to respect for private and family life’ (Federa Report, 2014).
Poland has been an EU member state since 2004 and was one of the first signatories of the UN Charter in 1945. However, the country has seen a slow degradation of its rule of law and democractic apparatus under the Law and Justice Party (PiS) since 2015, who are staunchly anti-abortion. This has prompted concerns from the international community as to the legitimacy of the national legislature’s rulings, including those on abortion access.
In Europe, 39 countries have legalised abortion on request, two have legalised abortion on broad social grounds, and six (including Poland) do not allow abortion on either of these grounds (Center for Reproductive Rights, 2020). It is important to note that those countries which share Poland’s historical background of being former Soviet states do not necessarily have the same trajectory. Former Soviet states Armenia, Azerbaijan, Estonia, Georiga, Latvia, Lithuania, Moldova, Russia and Ukraine, and former Eastern Bloc states Albania, Bulgaria, Czech Republic, Germany, Hungary and Romania all allow abortion on request (Center for Reproductive Rights, 2020).
Similarly, many European countries with significant majority Catholic populations have legalised abortion on request, such as France, Hungary, Slovenia and Spain (Center for Reproductive Rights, 2020). Evidently, the influence of religion on reproductive rights and laws is contingent on a clear separation of Church and state, a factor not currently present in Poland for historical and political reasons. This leaves Poland as the clear outlier in terms of historical context and religious influence. It begs the question, why does a country with a history of liberal laws on abortion access now have some of the most restrictive laws in Europe?
A brief history of Poland’s abortion rights
Despite recent events, Poland’s abortion laws were not always so restrictive. Poland’s 1932 Penal Code allowed abortion in the case of a pregnancy resulting from a criminal offense, or a grave threat to the health of the woman. Under the Soviet regime, this law was expanded in 1956 to permit abortions on socioeconomic grounds, de facto making it available on request. Due to a lack of family planning initiatives, contraception provision and education, along with misinformation, abortion became an alternative to contraception and childbirth rather than a last-resort emergency procedure. This reflected a general trend in the USSR, where a lack of choice of alternatives meant that induced abortion became a major method of fertility regulation.
Poland’s 1993 U-turn on abortion rights was characteristic of the general re-masculinisation of public discourse and re-traditionalisation of gender roles following the end of socialism in 1989. In 1993, a new medical code of ethics took effect, prohibiting doctors from performing abortions unless the pregnancy resulted from a criminal act (rape or incest), threatened the woman’s life or health, or in the case of severe foetal disabilities. The 1993 act tightened previous regulations, as before then abortion had been available for decades on the grounds of socio-economic conditions. The consequences of this act included pushing abortion services underground, the creation of a black market of medical abortion pills, and the rise of abortion tourism across Europe (Federa Report, 2014). The role of the Church in enacting the 1993 law was paramount, as will be discussed.
In 2015, the conservative Law and Justice Party (PiS) came to power in government. The following year, the Party supported a draft bill for a total abortion ban, however it was rejected by parliament due to pressure from mass protests. This did not stop PiS from advancing their anti-choice agenda. In 2020, a legal challenge against the 1993 medical code led to the Constitutional Tribunal ruling the removal of the right to termination in the case of severe foetal abnormality, which accounted for 98% of abortions carried out. In this, it concluded the process of an almost total ban on abortion initiated by the 1993 legislation.
As of 2021, the remaining criteria for a termination apply in the cases of incest, rape, or severe risk to the mother’s health. However, Poland’s criminal code defines rape in a way that places the burden of proof on victims, who must demonstrate they showed sufficient resistance towards their rapist, making the chance of receiving a termination from a pregnancy conceived this way almost impossible and mentally exhausting. In the case of Izabela, her abortion was denied on the basis that the new law did not consider foetal abnormality as grounds for termination, and as a result doctors did not provide care that could have saved her life out of fear of persecution.
Right-wing nature of Law and Justice Party (PiS) and the connection to the Catholic Church
PiS is conservative on all socio-economic issues. After 1989, PiS framed itself as an anti-establishment party and framed communist-era policies as the source of current problems in Poland. Surprisingly, the party did not initially identify strongly with the Catholic Church (although its manifesto highlighted the importance of Christianity) until 2005, when faith became an important value for the party. PiS argues that the Church served as ‘a pillar of Polishness and a substitute for the non-existent sovereign state’ in the communist era, de facto giving the Church a mandate for influence over social policies. PiS claims to be inspired by patriarchal society’s resistance against certain periods of Polish history;, the Nazi regime and the communist era.
PiS has declared its support for traditional teaching on social issues, such as marriage arrangements, as well as blocking provision of comprehensive sexual health education, delivery of sexuality education and provision of emergency contraception. Poland’s parliament voted in favour of highly restrictive legislation drawn up by a group called Stop Paedophilia, designed to criminalise those engaged in sex education which ‘promotes or condones engaging in sexual intercourse or any other sexual activity by a minor’, deliberately conflating this with pedophilia and the abuse of children. In 2017, PiS passed legislation making emergency contraception available by prescription only. Those under 18 are also not allowed to see a doctor without parental consent, severely restricting access for young girls. Since coming to power, PiS has targeted women’s rights groups with public smear campaigns and proclaiming their work as dangerous to traditional family values. State employees who have supported women’s rights protests have also been threatened with dismissal.
Predominantly, the post-1993 change owes itself to the increased influence of the Catholic Church following the dissolution of the Soviet Union, largely due to the role it played in anti-Soviet resistance during the Cold War. Under socialism, the Church was a subversive force for spreading anti-regime ideology and providing safe spaces for revolutionary activity and solidarity. The Church therefore successfully increased the influence of religion on government in the context of reproductive rights from 1989, by presenting the identity of the new Polish nation as one rooted in national tragedy, spirituality and motherhood. It further shifted the discourse in legal language surrounding abortion by advocating the replacement of the term ‘foetus’ with ‘conceived child’ (in the law) and ‘unborn child’ (in public discourse). The importance which PiS attributes to tradition is strongly linked to the Catholic Church, recognising its role as vital to upholding Poland’s values in the resistance period.
Public opinion in Poland has not necessarily followed this restrictive trend. Survey evidence from the Public Opinion Polling Center taken in mid-1991 found that 71% of Poles held that the Church did not have a right to demand that believers submit to its teachings on abortion, meaning that there was no societal consensus in favour of strong restrictions at the collapse of socialism. The following year, Catholic bishops issued a letter to the government explicitly opposing a national referendum on the matter, meaning that new legislation was adopted in 1993 without a mandate from the Polish public. The same tendencies can be found today: despite Poland now being one of Europe’s most Catholic countries, there was no evidence of public demand for stricter abortion laws in 2020. In fact, for years opinion polling has shown that Poles opposed more restrictions.
Poland’s political-judicial situation and the erosion of democracy
The issue of abortion access has played out against a complex political-judicial backdrop. Poland’s ruling Law and Justice Party (PiS) has been accused of undermining human rights and liberties, and was described by the Freedom House as a ‘political movement devoted to overturning Poland’s existing constitutional order and the democratic principles that underpin it’.
The current government has argued that the reforms it has implemented since 2015 were necessary to remove the dregs of corruption remaining from the Soviet era. PiS’s most controversial ruling in its first year in government was the annulment of five judges nominated by the previous Civic Platform government to the Constitutional Tribunal, thereby interfering in the judiciary’s independence and setting precedent for further erosion of democracy. PiS efforts at centralisation, in the form of the concentration of political power and the disruption of the checks and balances mechanism, all comprised a radical reconstruction of the state in a national and Catholic spirit.
However, the Group of States Against Corruption (GRECO) concluded that the 2016-18 reforms have significantly weakened the judiciary’s independence. As of May 2018, PiS has direct control over the Constitutional Tribunal (the highest constitutional court) and the body that appoints Polish judges. On 24 November 2021, the Tribunal argued that the European Court of Human Rights had no power to question the appointment of its judges, rejecting the Court’s ruling of May 2021 that the Tribunal is now a politicized body and lacks independence from government. The issue remains an ongoing dispute between European bodies and Poland’s government.
In December 2021, Poland’s government proposed a centralised register of pregnancies that would require doctors to report all pregnancies and miscarriages to the government, coming into effect in January 2022. In light of the abortion ban, this register could cause issues for women undergoing self-administered abortions and undermines rights to privacy and family life. There has been no update as of January 2022 whether this will go ahead, but the precedent the proposal sets is concerning.
What can be done?
The combination of Poland’s historical context (i.e. the influence of the Church) and the domestic political-judicial situation has created a unique situation within Europe when it comes to abortion access.
The number of illegal abortions and medical interventions in Poland has been estimated at 80,000-190,000 per year, emphasising that restrictions on abortion do not stop them from taking place, but instead force women into seeking underground abortions and encourage a black market of clinics to thrive. Empirical evidence shows that countries where abortion is prohibited in fact see higher levels of abortion than those where it is permitted (37 per 1,000 women aged 15-44 vs. 34 per 1,000 women aged 15-44). Furthermore, since the 2020 legislation, Abortion Without Borders have assisted travel for 34,000 Poles, effectively taking over almost all abortions previously provided by the state. Evidently, the restrictions have simply displaced abortion treatment rather than eliminating it.
This article suggests the following recommendations. First, the general public and private individuals can use their voice to publicly condemn attacks on women’s rights groups and punitive measures imposed on women seeking reproductive healthcare. They can also support women’s rights organisations monetarily to help them provide such services. For example, Abortion Without Borders is a network of activist groups in four countries who cover travel and accommodation costs for women travelling from countries such as Poland and Malta, as well as providing early medical abortion pills. We Move Europe is an organisation which encourages writing solidarity letters to women in Poland.
Government officials, international organisations, NGOs and similar actors should urgently pressure the Polish government on its failure to uphold democracy and a clear separation of powers, with particular focus on judicial independence. They should hold Poland’s government to the standards they adopted in EU policy on equality and women’s rights, and ensure that access to EU funding remains tied to respect for EU values.