Poland’s abortion row will continue to be a thorn in Law and Justice’s side

By Aleks Szczerbiak


POLAND’S right-wing ruling party was taken aback by the scale and vehemence of the backlash against a constitutional tribunal ruling that banned virtually all legal abortions in the country.

But the pro-abortion protests appear to have lost momentum, with the main parliamentary liberal-centrist and left-wing opposition parties not having derived much political benefit from them.

Tribunal ruling sparks a wave of protests

The abortion issue moved spectacularly up the Polish political agenda following an October ruling by the country’s constitutional tribunal invalidating a provision in the current 1993 law allowing termination of pregnancy in cases where the foetus was seriously malformed or suffered from an incurable disorder.

The case came before the tribunal after a group of conservative parliamentarians asked the body earlier this year to check whether the 1993 law was compatible with the constitutionally guaranteed protection of the life of every individual. In its ruling, the tribunal argued that the Constitution protected all human life and dignity equally – and, therefore, also applied to the unborn child – so terminating a pregnancy based on the health of the foetus amounted to discrimination against the ill and handicapped.

Poland already has one of Europe’s most restrictive abortion laws with the procedure only permitted if: the pregnancy puts the life or health of the mother in danger; medical tests indicate a high probability of severe and irreversible impairment or terminal illness threatening the life of the foetus; or if there is a reasonable suspicion that the pregnancy resulted from an illegal act (such as incest or rape). Given that the vast majority of legal abortions in Poland (according to health ministry figures, 1,074 out of the 1,100 carried out last year) are as a result of serious and irreversible birth defects, the ruling effectively means a near-total ban.

However, in spite of a government ban on public gatherings due to coronavirus pandemic restrictions, the tribunal ruling set off a wave of large street protests co-ordinated by the ‘All-Poland Women’s Strike’ (OSK) network. As well as disagreeing with the substance of the ruling, its opponents questioned the legitimacy of the tribunal which, they claimed, was under the control of Poland’s ruling right-wing Law and Justice (PiS) party; 14 of its 15 members were appointed after the grouping took office in 2015.

Specifically, they argued that the ruling was invalid because it included three tribunal members whose appointments resulted from vacancies originally filled in 2015 by the outgoing parliament controlled by the liberal-centrist Civic Platform (PO), Poland’s governing party between 2007-15 and currently the main opposition grouping, but then over-turned on procedural grounds and replaced by the incoming Law and Justice-dominated parliament. The latter move was deemed unconstitutional by opposition parties and most of the Polish legal, and EU political, establishment.

The government’s supporters, on the other hand, argued that the three contested tribunal members were appointed legally and, more broadly, that its membership always reflected the political composition of the parliament that elected it. They also claimed that there was legal continuity between the tribunal’s October ruling and an earlier one in 1997, when it was dominated by justices who later became harsh critics of the Law and Justice government, which struck down an attempt to liberalise the 1993 law.

A problematic issue for Law and Justice

So why has the abortion issue re-surfaced now and how is it likely to play out politically? Law and Justice says that the tribunal is an independent body and that the timing and content of the abortion ruling were sovereign decisions and clearly in line with the Constitution.

However, the government’s critics argue that tribunal president Julia Przyłębska is a close personal friend and political ally of Law and Justice leader and deputy prime minister Jarosław Kaczyński, so the ruling may have been influenced by political calculations. Mr Kaczyński’s objectives were, they argue, to: consolidate and galvanise the ruling party after months of factional infighting; protect his position on the right flank of politics against both potential challengers for the party’s culturally conservative electoral base, such as the radical right Confederation (Konfederacja) grouping, and would-be rivals within the governing camp such as justice minister Zbigniew Ziobro; and strengthen the party’s close informal links with Poland’s influential Catholic Church which is, of course, a long-standing opponent of all forms of abortion. The government’s opponents also accused Law and Justice of trying to distract Poles from the fact that it was struggling to tackle the coronavirus pandemic crisis, and use the concomitant restrictions on public gatherings to argue that pro-abortion protests posed a public health risk.

In fact, both the timing and content of the abortion ruling proved to be extremely problematic for the ruling party. While attempts to both tighten and liberalise the abortion law have always provoked powerful emotions in Poland, Law and Justice was taken aback by the scale and vehemence of the backlash against the ruling. The demonstrations that followed the ruling mobilised a broad cross-section of Polish society, notably large numbers of younger Poles.

This contrasted with, for example, earlier waves of street protests organised by the anti-Law and Justice Committee for the Defence of Democracy (KOD) movement which focused on so-called ‘rule of law’ issues that were often simply too abstract for many ordinary Poles, and encompassed disproportionately large numbers of middle aged and older participants. This mobilisation of young people is potentially a very serious problem for Law and Justice which, having secured the largest share of the vote among this demographic in the 2015 presidential and parliamentary elections, has been steadily losing support among them since then. Perhaps most worryingly for Law and Justice, the protests expanded beyond liberal urban agglomerations to the smaller and medium-sized towns that constitute the party’s electoral heartlands.

Indeed, the abortion issue has always been a very problematic one for Law and Justice. On the one hand, many Law and Justice politicians personally favour tighter restrictions and the party presents itself as a staunch defender of Christian values. Given that one of Mr Kaczyński’s key strategic objectives has always been to prevent the emergence of any political challengers on the party’s right flank, it is very difficult for the party to completely ignore an issue that is so salient for many of its core supporters on the ‘religious right’.

On the other hand, Law and Justice is a broadly based political grouping whose electorate includes many Poles attracted by its socio-economic policies with more liberal views on moral-cultural issues (in Polish terms, if not necessarily compared with the Western liberal-left cultural mainstream). As a consequence, Law and Justice has tried to avoid this issue, and proceeded very cautiously in supporting legislation aimed at restricting the current abortion regulations.

Moreover, the pro-abortion protests coincided with a series of other government crises: the second phase of the pandemic crisis, ongoing infighting within the governing camp, and a bitter clash between the Polish government and EU political establishment over attempts to link the Union’s fiscal transfers to ‘rule of law’ conditionality. Perhaps not surprisingly the ‘Ewybory’ website that aggregates voting intention surveys showed a sharp fall in Law and Justice’s average poll rating from 40% in September to only 31% in November.

At the same time, the already-shaky governing camp was divided on how best to defuse the backlash generated by the abortion ruling. In response to the protests, Law and Justice-backed President Andrzej Duda proposed a draft law outlawing abortions in the case of a foetus diagnosed with conditions such as Down syndrome, while allowing the procedure where the baby would be stillborn or die soon after. However, a more strongly anti-abortion faction within Law and Justice, many of whom were instrumental in asking the tribunal to rule on the issue in the first place, is opposed to any watering down of the ruling.

The fact that Law and Justice only has a thin parliamentary majority, therefore, makes it difficult for the government to push through Mr Duda’s draft without at least some support from the opposition parties, which is very unlikely given they have an interest in prolonging the crisis. Consequently, the government has postponed officially publishing the abortion ruling, which prevents it from coming into effect and freezes the current legislative status quo, buying time to build the political alliances required to get a compromise through parliament.

Too radical and vulgar?

However, in spite of the carnival atmosphere that the organisers tried to create around the street protests, many of the most visible images and slogans that have shaped public perceptions of them have been too radical or simply too vulgar for many ordinary Poles, including those who may otherwise have sympathised with their cause.

The Women’s Strike leaders moved quickly on from simply protesting against the tribunal ruling to demanding the government’s immediate resignation and promoting a wide range of radical policy demands, while one of the protesters’ main slogans was telling Law and Justice to ‘f**k off’. Moreover, a number of the earlier actions targeted the Catholic Church and involved scenes of angry protesters painting pro-abortion and anti-clerical slogans on church walls, picketing and disrupting religious services, and confronting clergy and worshippers – attacking what was, for many Poles, traditionally an important pillar of the nation and civil society. All of this allowed Law and Justice to regain the political initiative somewhat.

At the same time, although the main parliamentary liberal-centrist and left-wing opposition parties tried to use the protests to de-legitimate Law and Justice, they also lacked credibility with many of the young protesters and do not appear to have derived much political benefit from them. Indeed, abortion has also been a difficult issue for Civic Platform because it forces the party to align itself with social movements that are traditionally associated with the more radical elements of the feminist left and thereby risks alienating the moderate conservatives whose support it needs to win elections.

Although most Poles oppose the tribunal ruling, and only a small minority support an outright ban on abortion, they are also against liberalising the country’s existing law which they appear to view as an acceptable compromise. Indeed, the main beneficiary from the protests as far as opinion polls are concerned appears to be the new ‘Poland 2050’ (Polska 2050) grouping led by liberal-centrist Catholic broadcaster Szymon Hołownia (who finished a strong third in the first round of the July presidential election standing as an independent political outsider) which, according to E-wybory, increased its support from 11% in September to 15% in November. As a relative political newcomer, Mr Hołownia was able to position himself as both broadly sympathetic to the protesters but also in tune with moderate centre-ground opinion on the issue.

Already fizzling out?

Moreover, much of the slump in polling support for Law and Justice – which, in spite everything, remains Poland’s most popular party – appeared to stem from an increase in respondents who said they would abstain if an election were held today. In fact, the ruling party has endured many crises during the last few years and none of them proved to be a political game-changer, so it is playing a long game and hoping that the abortion issue will also fizzle out. Attendance at the pro-abortion protests has already dwindled significantly and, although they may have been a formative experience for many of the young people who participated in them, it is difficult to see this burst of enthusiasm being channeled into day-to-day conventional politics.

For sure, it was very problematic for Law and Justice that the abortion controversy coincided with several other political crises, and interest in the issue will revive somewhat when the government eventually publishes, and introduces legislation to implement, the tribunal ruling. But Law and Justice still has plenty of time to re-build its support before the next national elections which are not scheduled for three years, and it is questionable how much the abortion issue will concern voters by then.

Aleks Szczerbiak is Professor of Politics and Contemporary European Studies at the University of Sussex.

This article was originally published on The Polish Politics Blog, and has been shared on Redaction Politics at the permission of the author.


Featured Image: Pixabay

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