This is not just ‘Poland being Poland’. These actions are illegal, inhumane and could spread across Europe – and this is just the beginning.
Poland’s near-total abortion ban came into effect last week when it was published in the country’s official government gazette. Polish hospitals and medical practitioners are no longer allowed to carry out an abortion in the case of a foetal anomaly. Such cases made up the great majority of terminations performed in the country, which, even before the new ban, already had the harshest abortion law in Europe – now, abortions are only permitted in cases of rape and incest and when the mother’s life or health are endangered.
What’s happening in Poland right now shouldn’t be seen as merely typical behaviour by the Polish state. This is not just ‘Poland being Poland’. These actions are illegal, inhumane and could infiltrate the rest of Europe – and this is just the beginning.
Poland’s Constitutional Tribunal, which issued the anti-abortion ruling is itself of highly contested legitimacy. Putting aside the substance of the ruling, the current tribunal is the result of a political power play by the ruling PiS (Law and Justice) party that evicted the previous judges and replaced them with judges more amenable to the party’s political agenda. The former judges have not recognised their eviction nor their newly installed replacements.
Thus, the Constitutional Tribunal itself is the subject of fundamental democratic contestation in Poland, and the European Commission has raised concerns about it in its ongoing proceedings about infringement of the rule of law in Poland.
As for the recent anti-abortion decision, one of the newly appointed judges on the tribunal was herself, prior to being appointed, one of the parliamentarians who signed the parliamentary motion asking the Constitutional Tribunal to judge on the matter of the constitutionality of abortion in the case of foetal anomaly.
The provisions of the judgement go beyond the philosophical question of ‘right to choose’ versus ‘right to life’. By banning abortion for foetal anomaly, the Constitutional Tribunal is interfering in medical decisions that should be left to a woman and her loved ones, in consultation with her medical provider.
The blanket ban just enacted will force Polish women to carry a non-viable pregnancy to term, thereby creating untold physical and psychological damage. Other provisions of Poland’s draconian abortion law impose prison sentences on those assisting women who terminate their pregnancy, including doctors, partners and family members.
There is already a case of a woman’s boyfriend being sentenced to six months in prison for having driven his girlfriend to hospital after she started bleeding heavily from taking an abortion pill at home.
It’s just the beginning
The current abortion ruling is not the result of popular will, it is the result of an illegitimate Constitutional Tribunal that did what the PiS government failed to achieve in 2016 with its legislative proposal to ban abortion. The government shelved that legislation after massive protests.
Behind these initiatives hides a powerful outfit called the Ordo Iuris Institute for Legal Culture. Ordo Iuris styles itself an independent conservative think tank; in reality, it is an extremist religious organisation and its leaders have created a web of reactionary organisations in Poland and beyond.
Ordo Iuris lawyers drafted the text of the 2016 bill to ban abortion, as well as other legal texts, including arguments for leaving the Istanbul Convention on violence against women, and bills that criminalised comprehensive sexuality education, and restrict in-vitro fertilisation and a charter that created Poland’s now infamous ‘LGBT-free zones’.
Ordo Iuris is able to make such progress because it has infiltrated the inner workings of the Polish state. For example, Ordo Iuris’s founder now sits on the Polish Supreme Court and other Ordo Iuris alumni occupy important positions in government ministries, academia, the judiciary and other public institutions including advising the Polish president.
It could spread to the rest of Europe
Poland is serving as a test bed for reactionary ideas to be exported to other countries. Investigative journalists have revealed how organisations under Ordo Iuris’s control have established tentacles in many EU member states. These organisations have started testing the waters in their own countries with the same ultra-conservative agendas. In Croatia, it was the Istanbul Convention, in Estonia it was a referendum on LGBT rights and in Lithuania abortion.
The same investigative journalists found that Ordo Iuris spent millions of euros to set up these foreign affiliates – and each one will try to emulate what they see as accomplishments in Poland. And Ordo Iuris has further ambitions. On 29 January, the Polish government formally submitted Aleksander Stępkowski, the founder of Ordo Iuris, as one of Poland’s candidates for the European Court of Human Rights.
What we are seeing in Poland is just the beginning. The beginning of the erosion of fundamental rights through pseudo-legal processes; first targeting women, then sexual minorities. Soon everybody will be concerned.
It is also the beginning of exporting Poland’s ultra-conservatism beyond its borders. Thanks to Ordo Iuris’s international network, what happens in Poland will not stay in Poland.
Unless Europeans take heed of the dramatic changes occuring in Poland and use all the tools at their disposal to uphold democracy and the rule of law – including by supporting the courageous movement within Poland that is fighting back against this democratic backsliding – then the same fate looms for many European countries.
This commentary was first published on openDemocracy.net.