On Thursday, October 22nd, 2020, the Supreme Court of Poland ruled that abortions due to fetal defects or lethal fetal diagnoses are unconstitutional, and that, The woman’s comfort is not a reason for ‘killing the unborn child.” This ruling sparked the largest protest that Poland has seen in decades, and attention from around the globe, because of the severity of the ban. Data shows that of the 1,100 legal abortions performed in Poland, 98% of them are due to lethal fetal diagnoses (Kublik, 2020), and this ban further tightens the regulations on abortion access that are already some of the strictest in Europe. The court’s decision and the protests that have followed demonstrate the divided state of Polish politics and the instabilities in its democracy. Additionally, the domestic and international response to Poland’s harsh abortion ban raises the question: are reproductive rights and bodily autonomy inherent tenets of democracy? Can a society be self-governed if women cannot rightfully self-govern their own bodies and lives?
For the 20th and 21st centuries, Poland’s politics have been nothing short of tumultuous. From the Nazi’s brutal occupation to the Soviet Union’s harsh rule, Poland had its first democratic election since before World War II in 1990. In November 2015, the Law and Justice Party (PiS), a right-wing, populist party that is known for incredibly conservative social politics, and support from many prominent Polish-Catholic bishops obtained an absolute majority in parliament. The November election and the assaults on the Polish judiciary that followed comprise Poland’s constitutional crisis and can be broken into two stages (Matczak, 2018). The first stage of this crisis included the cancelation of appointments of five Constitutional Tribunal judges and packing the Tribunal with new judges, and also the enaction of six bills that worked to slow or stop the Constitutional Tribunal’s operations (Matczak, 2018). The second phase of Poland’s constitutional crisis began in 2017 and consists of political attempts to undermine the National Council of the Judiciary (Matczak, 2018). These complex and aggressive actions ushered in by the Law and Justice Party essentially politicized the court and consolidated power for the party.
Ozan Varol cites the judiciary as one of the key mechanisms in stealth authoritarianism, or, “the use of legal mechanisms that exist in regimes with favorable democratic credentials for anti-democratic ends” (Varol, 2015, p. 1684). The judiciary is critical to target in stealth authoritarianism, as it is often regarded as an impartial institution with a strong reputation (Varol, 2015, 1691). The judiciary is often viewed as an intrinsically democratic institution with no political agenda, rather simply upholding the constitution. However, as evident in Poland, the United States, and elsewhere, stealth authoritarianism employs the judiciary to enact anti-democratic measures for this very reason. In doing so, leaders can delegate the most controversial questions to the judiciary, and avoid accountability (Varol, 2015, p. 1692). This phenomenon was evident on October 22nd, 2020 when the highest court of Poland imposed abortion bans for fetal anomalies. This ban was celebrated by leaders of the Law and Justice Party and conservative Polish individuals, but it has also sparked enormous backlash and garnered international condemnation for the severity of the ban.
In Poland, the intersections between the political action and rhetoric surrounding abortion and the influence and presence of the Catholic church cannot be ignored. In 2018, 92% of Polish individuals over the age of 16 indicated that they are Roman Catholic, and this ban has been praised by countless Catholic leaders, including Jaroslaw Kaczynski, the Law and Justice party leader who urged individuals across the country to, “defend the nation’s churches,” amidst the protests. The Polish-Catholic Church has been described as one of the most politically powerful institutions in the Christian world (Grzymała-Busse, 2019, p. 1), and 71% of Polish voters think the Church is too involved in politics (Pew Research Center, 2015). The extent of involvement of the Catholic Church in Polish politics, paired with the deeply patriarchal and hierarchical structures of the church shapes the political identity and civic membership of the state. In Poland, when one of the most politically powerful institutions is one that has systematically and historically oppressed women, particularly those who challenge gendered expectations surrounding motherhood, the status of civic membership is jeopardized. When examining the state of democracy, it is not enough to just examine governmental institutions, but also the institutions that are key players in government. When these institutions control healthcare and bodily autonomy of specific groups of citizens, that is antithetical to democracy itself.
Both the Law and Justice Party, and the abortion ban they celebrated are illustrative of rising populism present in Polish politics. Populism by nature is an anti-pluralist “moralist imagination of politics” (Müller, 2016, p. 19), and populist leaders thrive off claims that only they represent the people, and those who challenge their ideas or authority are illegitimate or do not belong. The Polish political identity and populism present in the Law and Justice is heavily influenced by the Catholic Church. Prior to the 2019 election, Jaroslaw Kaczynski said, “Christianity is part of our national identity, the [Catholic] Church was and is the preacher and holder of the only commonly held system of values in Poland. Outside of it… we have only nihilism.” Through linking the Law and Justice Party so closely with the Catholic Church, Kaczynski and other leaders are suggesting that protests against government decisions, like the abortion ban, are direct attacks on the Church, Poland, and “the people.” Through their harsh positions on LGBTQ+ rights and reproductive rights the Law and Justice Party has been claiming to fight for the people and traditional Polish values, and arguing that anyone who stands in their way stands against Poland (Zgut, 2020). This strategy has been successful enough to win the Law and Justice party an outright majority in Parliament in 2015, which has not been accomplished since the fall of Communism in 1989 (Schmitz, 2019). Though the majority of Poland is Catholic and there are strict Catholic doctrines against abortion, to view the second largest religion in the world as a political monolith is misleading, and when it comes to matters of healthcare, simply dangerous. In the United States for example, over ⅔ of Catholics would oppose overturning Roe v. Wade (Fahmy, 2020). While the Catholic populism in the Law and Justice Party is clearly dangerously anti-pluralist to the 8% of Poland that is not Roman Catholic, because they are automatically othered, it is also anti-pluralist to Catholics who may disagree with any of the Church’s teachings or its position in politics.
Proponents of conservative abortion politics would likely argue that there is no relationship between abortion bans and democratic erosion. The Law and Justice party won 235 of the 460 seats in the Sejm (Ciobanu, 2019), and they genuinely represent the sentiments of many Polish people. Similarly, proponents of the abortion ban could argue that not only is there no relationship between abortion restrictions and democratic erosion, but the act itself was democratic because the majority of Polish people share a faith that rejects abortion. Additionally, this issue could be considered nongermane to the status of democracy. Regardless of opinions of whether the ban was normatively right or not, the ban was legally decided by judges that follow a democratic constitution and were appointed by an elected official. Recalling Varol’s argument, the judiciary is a key mechanism of stealth authoritarianism (Varol, 2015, p. 1684), so following judicial processes does not rule out anti-democratic actions. Additionally, the protection of human rights is one of the four key elements of democracy (Diamond, 2004), and bodily autonomy is a human right (UNHRC, 2018). The Polish abortion ban was ruled in a way that is a key mechanism of stealth authoritarianism, and it undermined a critical human right.
Time and time again, research has demonstrated the dangers of banning abortion. Studies have shown that limiting access to reproductive care does not lower abortion rates, but rather limits access to safe abortions. In Poland, many women have already been traveling to Germany and the Czech Republic to access the healthcare they need, and that is a similar trend to Irish women traveling to the United Kingdom, and women in the United States traveling to states with fewer restrictions. Though less accessible, individuals with the money and means to travel will continue to be able to terminate their pregnancies when they need, that has often been the case. However, whenever there are women who are traveling thousands of miles, consuming poisonous herbs, or resulting in any other dangerous method to end their pregnancy because of the lack of resources in a state, there are also individuals who are dying, forced to give birth only for their child to die immediately, or forced to endure a pregnancy they did not want and raise a child they did not want. How can the government claim to hear and act on the will of the people when they forbid half of the people from acting on their own will in the name of health and wellbeing?