Abortion in Poland

Introduction

The right to decide whether or not to have a child is fundamental. Efforts made by the Polish government to restrict the bodily autonomy of women and marginalised genders link to wider issues in the country of democratic erosion, whereby the state encroaches on citizens’ rights in an effort to impose its preferred norms on society. 

This is also part of a wider anti-gender movement that seeks to undermine the rights of women and marginalised genders, under the guise of maintaining traditional family values. 

This paper will analyse the relationship between reproductive rights and democracy, taking abortion in Poland as its case study. It will first outline the theoretical framework, before analysing legislative changes made to Polish abortion law since 1956, alongside civil society’s response to such changes. It will link this analysis to the theoretical framework, before providing recommendations for national and European policy-makers. 

Theoretical framework: reproductive governance, intimate citizenship (910)

The discussion surrounding the relationship between human rights and democracy can be traced back to the 17th century, where philosopher John Locke initially defined them as independent from cultural and political agendas. Historically, there seems to be a consensus concerning human rights as conditio sine qua for democracy — “a necessary condition for a citizen to support a sovereign is that he not transgress what that citizen believes are their fundamental rights” (Weingast, 1997). As globalisation becomes more pervasive, human rights have turned into a “truly universal project” (Mutua, 2007). 

Our contemporary idea of human rights differs from the original concept. In modern times, rights are defined as “the catalogue of civil and political freedoms that groups demand from those in power to assert their equal claims to citizenship” (Petchesky, 2000). There are different categories of rights, namely, civil, political, social, cultural. Nonetheless, it is argued that there should not be a hierarchical order when discussing rights, as they are all interdependent (Zampas & Gher, 2008). Scholars deem reproductive rights to be a fundamental part of women’s rights (Bunch, 1990; Freedman & Isaacs, 1993; Oloka-Onyango & Tamale, 1995; Zolkos, 2015; Todd-Gher & Shah, 2020). According to the SisterSong Association, reproductive rights are “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities” (SisterSong, n.d.)

However, reproductive rights have been largely overlooked by current governments and institutions. Despite the fact that  some of the most prominent international organisations such as the WHO, the UN, and the EU  support women’s right to reproductive justice, they lack the necessary  mechanisms to ensure these rights. The connection of reproductive rights to  other rights, such as an individual’s right to self-emancipation and freedom, as well as their right to empowerment and personal growth, is typically ignored. This isolation suggests that reproductive rights are not necessarily prioritised by governments and institutions. Reproductive rights are discussed in broader terms, occasionally overshadowing the heart of the matter: women’s health and social status.

Abortion is linked to wider discussions surrounding women’s citizenship, gender roles, Church-state relationships, and the public versus private sphere, among other issues. In their article, Ela Drazkiewicz and Thomas Strong (2020) discuss Ireland’s referendum on the Eighth Amendment, which concerned abortion rights. It is agreed that “in Ireland, the act of voting itself became a matter not only of reproductive rights, but of questions of life and death, faith and shame, women and men, state power and individual liberty, and more.” Furthermore, during the 20th century, feminist actors increasingly pointed out that the dividing line between the public and private sphere had become dangerously blurred, if it had ever existed. This idea leads us to the concept of “intimate citizenship,” a theoretical framework derived from Michel Foucault’s ‘biopower’ Biopower defines the state’s ability to “discipline the body and regulate the population” (Unal & Cindoglu, 2013). Through propagandistic means,including sexual education, healthcare, and values, a state can easily control the demographic aspects of its territory by controlling the perspectives of citizens  on the body and the family (Moll, 2022). China’s one-child policy serves as an example. Ken Plummer (2003) later expanded the concept of biopower to argue that “there is a public discourse on personal life” but that our predetermined ideas of parenthood, motherhood, contraception, sex, relationships, are influenced by the education provided by the state. 

These ideas are not gender-blind, as  the roles of women and men within the nuclear family are seemingly not equivalent. Historically, citizens were expected to contribute to the state’s welfare in one of two ways— production or reproduction— with the former assigned to men and the latter exclusively to women. Although this trend has fluctuated over time, and women have been able to become workers and so participants of the vita activa, the variation of these expectations has ultimately depended on state.  Germany after the Second World War is  a clear example. In the Federal Republic of Germany, women were encouraged to remain in their traditional place in society as wives and mothers. Contrastingly, the women of the German Democratic Republic  were largely part of the working chain. Likewise, laws on abortion and other reproductive services were less strict. As Susanne Kranz (2015) argues, “women were regarded by the state as a part of the class struggle, not as individuals with some distinct needs from men.” However, this was linked to the attainment of a socialist utopia, (Marcus, 2009; Fidelis, 2017) rather than women’s emancipation. 

Poland’s unlawful abortion legislation is a further example of the  relationship between reproductive rights and democracy.  Unal and Cindoglu (2013) argue that “a woman’s womb comes to be defined as a political place that does not belong to an individual woman but to the biological collective.” It is possible to take this idea further and argue that Poland’s present rule of law crisis has hindered women’s rights, alongside minority rights, namely LGBTQ+ rights. The COVID-19 pandemic provoked a domino effect of what scholars define as “constitutional breakdown” or “democratic deficit” (Daly, 2019), which overall allowed governments to “dismantle the liberal democratic state and entrench the long-term rule of the dominant party” (Krajewksa, 2021). The current anti-gender movement led by extreme, far-right parliamentarian groups results from the above-mentioned political phenomenon. 

Abortion in Poland

There is no mention of abortion in the founding treaties of the European Union, making it a matter for national law. However, specific articles of the European Convention on Human Rights (ECHR), such as Art. 2 (the right to life) and Art. 8 (right to respect for private and family life) link to the issue (European Union Treaty; Council of Europe, 1950). 

Article 38 of the Polish Constitution outlines“the legal protection of the life of every human being” — a defining principle in Poland’s abortion legislation. The Constitution further contains provisions for the “the mutual independence” of the “the State and churches and other religious organisations” (Art. 25) and the autonomy of the “courts and tribunals” (Art. 173) (Constitute Project, 2022). However, as this paper will demonstrate, the latter articles are often not enforced. 

Such ideologies had a more limited impact during Poland’s Communist regime, when the Church’s traditional impact on the state was stifled and women gained greater reproductive autonomy.Although abortion was legalised in 1956, women were generally required to continue to fulfil traditional gender expectations. While the fall of the Iron Curtain in 1989 and the relaxation of these standards was beneficial for many, it led to the resurgence of the influence of the Church and right-wing conservatives on government policy. A de facto abortion ban quickly followed in 1993 with exceptions only in the event of rape, incest, a threat to the mother’s life or in the event of foetal abnormality (Żuk & Żuk, 2020, p.569). Today, Poland has one of the most restrictive abortion laws in Europe (Human Rights Watch, 2022). 

In 2016, Ordo Iuris, a right-wing think tank with significant influence, prepared the Stop Abortion Bill which proposed a total ban on abortion which threatened prison sentences of up to five years for doctors and pregnant people who partake in abortion. (Korolczuk, 2020, p.703). This sparked the Black Protests, organised by Marta Lempart and Klementyna Suchanow under the coalition All-Poland Women’s Strike (strajk kobiet). Protestors took to the streets nationwide, wearing black to mark the loss of their reproductive rights (Molek-Kozakowska & Wanke, 2019, pp.566-567). This forced Parliament to reject the Bill (Korolczuk, 2020, p.696). 

These protests followed “anti-government street protests” which took place earlier that year, spurred on by digital mobilisation and social media usage (Roggeband & Krizsán, 2020, pp.20-22). These protests sought “the secularisation of citizenship” and were highly critical of the intertwining of religious doctrine with government policy, calling for “a re-examination of the Polish political structure and the quality of democracy” (Moll, 2022, p.16).  

Other government efforts to restrict abortion were more successful. These were facilitated by unconstitutional changes to the Polish judiciary, starting with the rise of the Law and Justice Party (PiS) to power in 2015. Judges that were critical of the government faced demotion and disciplinary panels (Deutsche Welle, 2020). Indeed, Ordo Iuris’ co-founder was appointed to the Polish Supreme Court, demonstrating how anti-gender movements underwent “growing institutionalisation” (Korolczuk, 2020, p.703). Such changes are in violation of EU law (European Commission, 2020). 

In 2020, PiS MPs called for abortion to be outlawed in cases of foetal abnormalities, which constituted 98% of terminations (1074 abortions out of the 1110 terminations that took place in 2019 (Sas, 2021, p.15; BBC News, 2020). 

PiS’ ruling became effective in January 2021, despite nationwide counter-protests (Human Rights Watch, 2022). That year, just 107 abortions were performed in Poland, a country of 40 million people. There were no abortions for pregnancy caused by rape, an issue not only affecting Polish women but also Ukrainian women seeking refuge in Poland after being sexually assaulted by Russian soldiers (Biedroń, 2023). 

The 2020 ruling to ban the abortion of foetal abnormalities has led to the deaths of abortion seekers Izabela, Agnieszka, Marta and others, all denied abortions despite the threat that pregnancy posed to their health (Wanat & Martuscelli, 2021; Strzyżyńska, 2022; Federa, 2022). Women’s rights activists such as Lempart face court cases and death threats (Human Rights Watch, 2022; Strzyżyńska & Swash, 2022). Justyna Wydrzyńska from Abortion Dream team is on trial for providing abortion pills. She is “the first pro-choice activist to be charged in Poland for breaking the country’s strict abortion law” (Strzyżyńska, 2022a). The law has also harmed men as well as women, embodied by the case of a man sentenced to six months in prison for driving his pregnant girlfriend to hospital, following complications from an abortion pill (Datta, 2021). 

Polish women have also lodged their case with the ECHR (Human Rights Watch, 2022). The Sejm proposed a nationwide pregnancy register, but this has not taken effect (Strzyżyńska & Swash, 2022). Such developments have not prevented the state and its affiliates from continuing to repress those seeking or providing assistance with pregnancy terminations. The government has requested that the Bielański hospital in Warsaw share information on the abortions carried out there, whilst Ordo Iuris has pledged to defend a man “suing his wife for having an abortion,” on the grounds of a violation to his “right to family life” (Strzyżyńska & Swash, 2022). 

The European Commission and the European Council have not taken action against Poland (Biedroń, 2023). The European Parliament has called on the Polish government to ensure access to “safe, legal and free abortion services” (Biedroń, 2023). Its Committee on Women’s Rights and Gender Equality (FEMM) has visited Warsaw and held a hearing on Polish abortion law in November 2022 (Biedroń, 2023). According to Robert Biedroń, MEP and chair of the FEMM Committee, “Polish women now have fewer rights than when their country joined the EU in 2004” (Biedroń, 2023). 

Poland constitutes a clear example of the relationship between reproductive justice, democracy and citizenship. This is because the Polish government has effectively deprived people of their bodily autonomy, effectively making childbearing a public, rather than a private matter. This article puts forward the idea that the individual’s rights to self-determination (abortion, marriage, adoption, euthanasia) and freedom are dependent on the state’s moral and demographic expectations. As the paper argues that abortion is an intrinsic human right, it is our contention that unlawful abortion is one of the many consequences erupted by the current rule of law crisis that the country is suffering. 

Recommendations 

As demonstrated by this paper’s findings, current Polish legislation, as well as lawmaking processes, do not respect women’s rights to reproductive justice. The on-going rule of law crisis hinders the overcoming of the influence of Catholic and traditional views on the matter. The European Union lacks the required mechanisms to ensure the compliance of human rights-based criteria established by the Beijing Declaration and Platform for Action (1995), which Poland signed and ratified. Thus, the following recommendations are proposed:

European Union

Overall, the proposed policies addressed to the European Union concern the Union’s lawmaking processes, and the need to update the European Union Charter of Fundamental Rights (ECtHR):

1. Healthcare is declared as an exclusive competence of the Member States. Thus, it is fair to state that healthcare services are uneven across the Union. Several EU leaders have called for the need to include abortion in the ECtHR. Nonetheless, this procedure would require the redrafting of the Lisbon Treaty (TEU, 2007). In order to do so, states must agree unanimously. As the human rights narrative is in constant evolution, this procedural condition hinders the inclusion of any kind of right. 
   1. Given the absence of lawful abortion in the ECtHR, the rewriting of Art. (“Right to life”), 3 (“Prohibition of torture”), and 8 (“Right to private life”) is proposed, so as to avoid the repetition of cases such as Alicja Tysiac v. Poland (ECHR, 2007). 
   2. Overcoming the rule of unanimity is recommended, considering that European law is traditionally based on the majority opinion, not only in the case of healthcare. 
2. Assessment of Poland’s abortion law, following the alleged violation of human rights pointed out by several European countries (Slovenia, Sweden, the Netherlands, etc.) and UN bodies. Likewise, the respect of the rule of law and judicial independence should be reinforced by the EU through the application of infringement procedures, so as to preserve the country’s quality of democracy.

Poland

The paper shows the severe threat that Poland’s unlawful abortion legislation is to “women’s rights to life, health, education, equal-opportunities, security, to have one’s body set aside from the public sphere, freedom of religion, conscience and opinion” (Moll, 2022).

1. Legalisation of abortion on medical and socioeconomic grounds. Abortion, as well as other reproductive services (contraception, IVF, sex education) must become a public service. Furthemore, Poland must ensure the prevention of the abuse of conscientious objection by doctors and healthcare workers.
2. Provision of accurate information (data, objective medical knowledge) in regards to legal and illegal abortions, and its respective consequences. 
3. Prevention of the publication of anti-choice propaganda which contributes to the spread of misinformation surrounding abortion, and contributes to its social stigmatisation and legal criminalisation. 
4. Drafting of a syllabus on sex education and reproductive health addressed to younger generations and adapted to their age and maturity. This syllabus shall be created from a gender-based and LGBTQ-based perspective. 
5. Restoration of the rule of law – including Church- state separation – so as to enable democratic processes (i.e., referendums) to take place. The case of Ireland serves as an example. 

BBC News. (2020, October 23). Poland abortion: Top court bans almost all terminations. Retrieved from: https://www.bbc.co.uk/news/world-europe-54642108 (Accessed: December 4, 2022).

BBC News. (2020a, October 28). Poland abortion ruling sparks “women’s strike.” Retrieved from: https://www.bbc.co.uk/news/world-europe-54716780 (Accessed: December 4, 2022). 

Biedroń, R. (2023, January 11). ‘Not one more’ woman can fall victim to Poland’s abortion laws. POLITICO. https://www.politico.eu/article/women-victim-poland-abortion-laws/

Constitute Project (2022). Poland 1997 (rev. 2009) constitution. Constitute. Retrieved from: https://www.constituteproject.org/constitution/Poland_2009?lang=en  (Accessed: December 4, 2022). 

Council of Europe (1950). European Convention on Human Rights. Retrieved from: https://www.echr.coe.int/Documents/Convention_ENG.pdf. (Accessed: December 4, 2022). 

Daly, T. G. (2019). Democratic Decay: Conceptualising an Emerging Research Field. Hague Journal on the Rule of Law, 11, 9-36. 

Datta, N. (2021). Four reasons why Poland’s war on abortion should scare you. Retrieved from: https://www.opendemocracy.net/en/5050/four-reasons-why-polands-war-on-abortion-should-scare-you/?source=in-article-related-story (Accessed: December 17 2022). 

Deutsche Welle. (2020, February 29). Poland: Judges punished for criticising government reforms. dw.com. Retrieved from: https://www.dw.com/en/poland-judges-punished-for-criticizing-government-reforms-report-finds/a-52592246 (Accessed: December 4, 2022). 

Drazkiewicz, E.,& Strong, T. (2020). Repealing Ireland’s Eigth Amendment: abortion rights and democracy today. Social Anthropology, 28(3), 561-584. European Association of Anthropologists. 

European Commission (2020). Rule of Law: European Commission launches infringement procedure to safeguard the independence of judges in Poland. The European Commission. Retrieved from:

European Court of Human Rights (2007). Alicja Tysiac v. Poland. (Application no. 5410/03). Judgement of March 20, 2007. (Accessed: December 4, 2022). 

European Parliament (2022, November 15). Abortion in Poland: MEPs to discuss consequences of the de facto ban | News | European Parliament. Retrieved from: https://www.europarl.europa.eu/news/en/press-room/20221114IPR53916/abortion-in-poland-meps-to-discuss-consequences-of-the-de-facto-ban (Accessed: December 4, 2022). 

European Parliament. (1992). Lex – C:1992:191:toc – en – EUR-lex. EUR. Retrieved from: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AC%3A1992%3A191%3ATOC  

Federa (2022). SRHR AND FEDERA OVERVIEW – SEPTEMBER 2022. Federa. Retrieved from: https://en.federa.org.pl/srhr-and-federa-overview-september-2022/ (Accessed: December 4, 2022). 

Fidelis, M. (2004). Equality through Protection: The Politics of Women’s Employment in Post-war Poland, 1945-1956. Slavic Review, 63(2), 301-324

https://ec.europa.eu/commission/presscorner/detail/en/ip_20_772 (Accessed: December 4, 2022). 

https://www.unwomen.org/en/digital-library/publications/2020/06/discussion-paper-democratic-backsliding-and-the-backlash-against-womens-rights (Accessed 8 March 2022). 

Human Rights Watch (2022). Regression on Abortion Harms Women in Poland. Retrieved from: https://www.hrw.org/news/2022/01/26/regression-abortion-harms-women-poland. (Accessed: December 4, 2022). 

Imbierowicz, A. (2012). The Polish Mother on the defensive? The transformation of the myth and its impact on the motherhood of Polish women. Journal of education, culture and society, 3(1), pp.140–153. Retrieved from: https://www-ceeol-com.ezproxy1.bath.ac.uk/search/viewpdf?id=30212 (Accessed November 11, 2020).

Korolczuk, E. (2020) “Counteracting challenges to gender equality in the era of anti-gender campaigns: Competing gender knowledges and Affective Solidarity,” Social Politics: International Studies in Gender, State & Society, 27(4), pp. 694–717. Retrieved from: https://doi.org/10.1093/sp/jxaa021. (Accessed: December 4, 2022). 

Krajewska, A (2021). Connecting Reproductive Rights, Democracy, and the Rule of Law: Lessons from Poland in Times of COVID-19. German Law Journal, 22,

Kranz, S. (2005). Women’s Role in the German Democratic Republic and the State’s Policy Toward Women. Journal of International Women’s Studies, 7(1). Retrieved from: https://vc.bridgew.edu/cgi/viewcontent.cgi?article=1423&context=jiws

Marcus, I. (2009). Wife Beating: Ideology and Practice under State Socialism in Hungary, Poland, and Romania. In: Penn, S., Massino, J. (eds) Gender Politics and Everyday Life in State Socialist Eastern and Central Europe. Palgrave Macmillan, New York. Retrieved from: https://doi.org/10.1057/9780230101579_8

Molek-Kozakowska, K. and Wanke, M. (2019) “Reproductive rights or duties? the rhetoric of division in social media debates on abortion law in Poland,” Social Movement Studies, 18(5), pp. 566–585. Retrieved from: https://doi.org/10.1080/14742837.2019.1629279. (Accessed: December 4, 2022). 

Moll, A., G. (2022). The UN’s Sustainable Development Goal 5.6 in Poland: Abortion, reproductive justice, and the Church in the Polish post-Soviet society. Universitat Pompeu Fabra.

Mutua, M. (2007). Change in the Human Rights Universe. Journal Articles. University at Buffalo School of Law. Available at: https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1564&context=journal_articles

Petchesky, R.P. (2000). Rights and Needs: Rethinking the Connection in Debates over Reproductive and Sexual Rights. Health and Human Rights, 4(2), 17-29. Retrieved from: https://doi.org/10.2307/4065194

Plummer, K. (2003). Intimate Citizenship: Private Discussion and Public Dialogues. University of Washington Press.

Roggeband, C. and Krizsán, A., 2020. “Democratic backsliding and the backlash against women’s rights: Understanding the current challenges for feminist politics” [Online]. New York: UN Women. Retrieved from:

SAS, A (2021). Number of legal abortions in Poland 1994-2020. Retrieved from: https://www.statista.com/statistics/1111313/poland-number-of-legal-abortions-1994- 2018/ (Accessed: December 17 2022). 

SisterSong, (n.d.). What is Reproductive Justice? Retrieved from: https://www.sistersong.net/reproductive-justice/

Strzyżyńska, W. (2022, January 28). Protests flare across Poland after death of young mother denied an abortion. The Guardian. Retrieved from: https://www.theguardian.com/global-development/2022/jan/27/protests-flare-across-poland-after-death-of-young-mother-denied-an-abortion (Accessed: December 4, 2022). 

Strzyżyńska, W. (2022a, March 28). Polish woman is first activist to face trial for violating strict abortion law. The Guardian. Retrieved from: https://www.theguardian.com/global-development/2022/mar/28/polish-woman-is-first-to-face-trial-for-violating-strict-abortion-law (Accessed: December 4, 2022). 

Strzyżyńska, W., & Swash, R. (2022, October 19). Death threats and phone calls: the women answering cries for help one year on from Poland’s abortion ban. The Guardian. Retrieved from: https://www.theguardian.com/global-development/2022/jan/23/death-threats-and-phone-calls-the-women-answering-cries-for-help-one-year-on-from-polands-abortion-ban (Accessed: December 4, 2022). 

Unal, D. & Cindoglu, D. (2013). Reproductive citizenship in Turkey: Abortion Chronicles. Women’s Studies International Forum, 38, 21-31. Retrieved from: https://doi.org/10.1016/j.wsif.2013.02.005

Wanat, Z., & Martuscelli, C. (2021, November 3). Pregnant woman’s death renews abortion ban controversy in Poland. POLITICO. Retrieved from: https://www.politico.eu/article/poland-abortion-health-care-pszczyna-barbara-nowacka-pis-european-parliament-sylwia-spurek/ (Accessed: December 4, 2022). 

Weingast, B.R. (1997). The Political Foundations of Democracy and the Rule of Law. The American Political Science Review, 91(2), 245-263. Retrieved from: https://www.jstor.org/stable/2952354

Zampas, C., & Gher, J.M. (2008) Abortion as a Human Right – International and Regional Standards. Human Rights Law Review, 8(2).

Żuk, P., & Żuk, P. (2019). ‘murderers of the unborn’ and ‘sexual degenerates’: Analysis of the ‘anti-gender’ discourse of the Catholic Church and the nationalist right in Poland. Critical Discourse Studies, 17(5), 566–588. Retrieved from: https://doi.org/10.1080/17405904.2019.1676808 (Accessed 9 March 2022).