The Broad Implications of Poland’s Abortion Ruling on the EU’s Future
Protest in Gdansk against Poland's new abortion laws by Lukasz Katlewa
Article by Hiep Nguyen,
On Thursday, October 22, 2020, the Polish Constitutional Court ruled that abortions of fetuses with deformities are unconstitutional. Fetal defects account for 98% of Poland’s abortions. The Court’s ruling revokes the constitutionality of one of four exceptions Poland had previously made when it first enacted its abortion ban in January 1993. Without the allowance of abortions for fetal abnormalities, Poland now only permits termination of pregnancy in the cases of rape, incest, and/or health conditions that would threaten the mother’s life.
The Court took up this case upon the request of far-right members of the Polish parliament earlier this year, who argued that existing legislation allowing abortions in the cases of fetal deformities discriminated against the right to life of unborn children. Opponents, including human rights and women’s organizations, condemned the far-right argument, stating that a judicial removal of the exception would strip women of bodily autonomy, place women’s lives in danger, and defy the status quo in Europe, where 41 out of 47 countries currently allow abortions. Since abortion restrictions first came into effect in Poland 27 years ago, an increasing number of Polish women have sought abortions in neighboring countries. Masses are retaliating against the ruling by taking to the streets of major Polish cities such as Warsaw and Poznan. Opinion polls show that a majority of Poles oppose the Court’s decision.
The Court’s ruling will set the stage for Jaroslaw Kaczyński’s governing far-right Law and Justice (PiS) party to implement stricter legislation formally banning abortions in the case of fetal defects. PiS’s appointments occupy most seats on the Polish Constitutional Court. Kaczyński has used misinformation campaigns and harnessed public discontent over refugee resettlement to steadily increase his grip on Polish politics over the last decade. He has used his fortified political grip to execute constitutional makeovers that have packed judicial seats with PiS loyalists and cracked down on basic freedoms of speech, religion, and the press. These changes and their results, including this Court’s sharp curtailment of abortion, defy longstanding European Union (EU) laws and precedents, placing Warsaw in increasing contention with Brussels.
This Court’s judgment represents only the latest controversy in the EU’s multi-year struggle with right-wing Eurosceptics. EU leadership, which is mostly composed of centrists like former Polish president Donald Tusk, have long advocated for European integration: free movement, multiculturalism, a single currency, and unified liberal economic and social policies. Centrists see the EU as a bulwark against the re-emergence of white nationalism that resulted in World Wars I and II. Newly emergent right-wing leaders like Kaczyński and Hungarian Prime Minister Viktor Orbán stand in direct opposition to this vision. While neither has advocated for complete withdrawal from the EU, they openly enact stricter border controls, celebrate ethno-religious nationalism, and regularly defy bloc-wide economic and social policies.
Kaczyński has not suffered consequences for his government’s actions beyond a verbal censure from Brussels. The question for EU leaders remains: should they accommodate far-right governments like those of Poland and Hungary to keep the dream of some integration alive, or crack down on these actors to send a message to those who might consider violating bloc-wide economic and social policies? Brussels’ forthcoming precedent will reverberate across the bloc for decades to come.
Hiep Nguyen is a first year at Berkeley Law who is interested in regulatory and comparative law. Hiep received his undergraduate degree from Cal (Go Bears!). Before law school, Hiep worked for a public health agency and a political campaign.