Stealing freedoms and getting away with it: Reproductive rights and rule of law in Poland

, by Meray Maddah

Stealing freedoms and getting away with it: Reproductive rights and rule of law in Poland
A protest against the Polish government’s changes on the judicial sector, 2017. Photo: Sakuto // Flickr (CC BY-ND 2.0)

We have all borne witness to the protests and marches that filled the streets of Polish cities with countless women, and men alike, protesting against the ban on abortion supported by the PiS party and the Catholic Church. In a European country where the idea of pluralism has been slandered by the ruling party and by those who support the controversial party’s politics, many had foreshadowed that it would be a matter of time until women’s rights would come into the firing line of the ultra-conservative PiS in its quest to garner votes and consolidate its domestic base.

The first part of Meray Maddah’s article on the deterioration of freedoms in Poland focused on the courts and the rule of law. The second explores controversial actions that the Law and Justice party have taken to extend their popularity in the country, and how the case of an abortion ban has been utilised by officials and authorities. The Catholic Church has taken an unsurprising stance on the matter, as the Church’s leaders met the proposal with approval based on what they perceive as correct, pious, religious values.

In 2016, a plan for a near-total ban on abortion was dropped by the Polish Sejm after mass protests. In January this year, however, a new bill to restrict abortion rights was brought to committee stage. The proposal would prohibit abortion even in the event that the foetus suffers from congenital disorders. One would be able to predict that such a bill has been drafted and supported by the ruling PiS party; yet, opposition parties have also been complicit in worsening the situation. In January, the “Save Women” bill, liberalising abortion rules, was rejected as a large number of opposition MPs either abstained or failed to turn up for the vote. Such actions produced a certain disappointment among the public who still had an inkling of hope in the opposition parties in the Parliament.

Civil society organisations in Poland, despite the hardships and hurdles erected in the course of the state’s recent repression, have been the vanguard in proposing alternatives that counter the original bill on abortion ban. An example of this work is the abovementioned “Save Women” bill pushed by women’s rights groups. Ironically, it was on the same day as the latter bill was proposed, that the Sejm backed the anti-abortion bill promoted by groups such as the Life and Family Foundation. The bill was stopped in later stages of the legislative process but abortion rights are constantly under threat. Access to emergency contraception has been progressively restricted, with a prescription requirement being introduced, some pharmacists refusing to dispense the pills, and most recently, the government seeking to track women who attempt to buy emergency contraception online.

The issue of reproductive rights has been brought to light over the past three years, and especially since the PiS party has had the majority in both the legislative and the executive branches while slowly taking its hold over the judiciary branch. The point which may have been neglected by different reports on the East European state is that the same issue has been bubbling beneath the surface since at least 2008. In 2008, the nation was captivated by the case of a 14-year-old Polish girl under the pseudonym ‘Agata’, who was the victim of a rape crime, and who got pregnant and decided to obtain an abortion. This case divided the nation into two diametrically opposed camps; pro-life advocates on one hand and pro-choice activists on the other.

As professor and reproductive rights activist Andrzej Kulczycki would describe the situation after the fall of communism in the country that created an atmosphere conducive to discussions on women’s reproductive rights, “4 June 1989 marked the end of Communism in Poland. Since then, those favouring women’s right of choice in Poland have faced a paradox. The political changes that resulted in the establishment of a democratic state have brought about restrictions on women’s rights as an unexpected side-effect.” In 1993, under pressure from the church, abortion was banned except in cases where there was a severe health risk involved, or in the case of rape or incest.

Anti-abortion sentiment has escalated tremendously since then, particularly amongst conservative voters and ones paying comradery to the church and its set of values. Even more alarming is the politicisation of abortion that has been weaponised by different political candidates in Poland. As Professor Małgorzata Fuszara illustrates, “beyond social reasons, the topic of abortion has stayed central in the political process for another reason: when many political candidates agree on topics such as the economy, foreign policy, and democratisation processes, they turn to the abortion debate to distinguish themselves from the other candidates. Abortion, then, has played a crucial role in the crystallisation of the Polish political system after communism as Poland entered a new democratic state.”

One of the greatest dangers that restrictions on abortion have created is the illicit solutions made available by underground markets that offered options for women to abort their pregnancy but at the expense of illegality and grave health risks. According to the BBC, between 10,000 and 150,000 underground abortions take place yearly, while the number of legal ones is between 1,000 and 2,000. The staggering discrepancy between the numbers shows the serious results of the restrictions on abortion: a classic example of how limitations on health services, irrespective of their causes, lead to an increase in the use of illegal procedures that may endanger the lives of the most vulnerable patients.

Adding fuel to fire, the entrenching of Poland’s Catholic church within the current political arena has consolidated support for the practiced limitations on women’s reproductive rights. The liberalisation of abortion remains an issue of survival for the ones asking for fair access to health services. Even back in 2008, there were consistent efforts by women’s rights groups, human rights advocates, activist feminists, NGOs and solidarity associations to turn the conversation towards a proper designation of civil liberties and freedoms, specifically with the broader legalisation of abortion.

No accountability: the European Union vs. Poland

The world has come to be a spectator to the ongoing events in Poland. The observers are plenty and the critics of the government’s decisions and decision-makers are even more numerous; yet, one would be astounded by the lack of accountability and responsibility of the government.

When agreed-upon values in the EU system are seen to be breached in a member state, the violating state has to face accountability through the triggering of Article 7 of the Treaty of the EU. As described by Politico Europe, Article 7 is an “EU infringement procedure to be used against member countries that have committed fundamental rights violations.” “There are two parts — Article 7.1 would allow the European Council to give a formal warning to any member state accused of violating fundamental rights. If that doesn’t have the desired effect, Article 7.2 would impose sanctions and suspend voting rights.” The European Parliament voted earlier this year by a vast majority to endorse the European Commission’s decision to trigger Article 7 against Poland. Completing the entirety of the procedure would lead to Poland being stripped of its voting rights in the EU.

It is rather important to mention that although the voting on triggering Article 7 has been largely approved by the MEPs, the Commission is yet to take any concrete actions as further moves would likely be blocked by the member states. Back in the spring, the European Commission gave Poland’s right-wing government until late June to resolve the disputes over the independence of the judiciary system. Warsaw, through its Prime Minister Morawiecki, has yet to address the demands made by the EU institutions. In late October, however, after a request from the European Commission in August, the ECJ ordered Poland to immediately suspend the actions made to the Supreme Court in Poland since they constituted an infringement of EU law. The new laws stipulated that the retirement age of Supreme Court justices should be lowered and any active judicial services can be extended by Poland’s President - a law that suspended forty percent of Supreme Court judges.

Conclusion

The open rebellion with the Union that Poland is trading on is sparking concern and setting the Central European state on a collision course with its European peers. Fundamental values upheld by the EU, such as respect for human rights and human dignity, freedom, democracy, equality, and rule of law, have been visibly defied by Poland’s reforms orchestrated by the Law and Justice party. Furthermore, the suppression that Polish women and their fragile reproductive rights face with the ominous abortion ban proposals is even more alarming.

Observing movements around the world leading social activism and creating conversation on human rights and human dignity, one can realise that, indeed, the discourse is being pushed in a direction that would hopefully cater to those whose rights are being marginalised and oppressed. However, with the rise of far-right zeal and its accompanying politics, witnessed in Europe particularly, it seems that in the specific case of Poland women’s reproductive rights will be further restricted.

The omnipresent actions taken by the Polish PiS party were no surprise those who voted them into power, yet the trust between those who oppose its extreme politics and manoeuvres, and the political parties who portrayed a thin lining of opposition has diminished. Civil society actors found themselves in the position of responsibility and accountability to their fellow citizens to fight the vicious infringements of their rights and dignity. One would assume that, presently, talks on the separation between church and the state would have been forgotten and actively practised in modern-day democracies. Yet, Poland, with its reforms and its weakening of the separation of powers, is slowly blurring the line between what ought to be a simple matter of compliance with the constitution, and what may be politically charged.

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