The protests went on non-stop for more than 14 days, and during that time, many other social groups joined in. By doing so, not only have they manifested support for the women’s demands, but also showed their dissatisfaction with the government’s actions. In that case, are the on-going protests only supposed to be an objection towards the Constitutional Tribunal’s decision on abortion’s illegality? Maybe there is more to that, and we are facing a general social disapproval of the actions of the authorities?
Constitutional Tribunal: its status and the context of the verdict
In October 2015 the Law and Justice political party (known also by its Polish acronym, PiS) together with their coalition partners, gained the majority of votes in the parliamentary election, which allowed it to govern the country independently of other parties, with absolute majority. Since then, it has been constantly introducing reforms in all areas of the public life: in judiciary, education, social aid and public media, among others. Its activities have been however most visible in the judiciary reforms, where it introduced major modifications into functioning of courts and of prosecution. One of the first institution subjected to reforms was the Constitutional Tribunal. From November 2015 until December 2016, six projects of legal acts, prepared by Law and Justice, have been adopted, with the intention of introducing modifications into the legal basis of its functioning.
These laws, in theory, meant to solve the issues that occurred after the “double selection” of new members of the judging panel. In December 2015, the Constitutional Tribunal announced that the project of the legal act aiming to reform the functioning of the Tribunal itself and postulated by PiS, was unconstitutional in its totality. In March 2016, then Prime Minister Beata Szydło refused to publish that and the following verdicts in the Journal of Laws, which led to continual suspension of the Tribunal’s verdict publishing process. Consequently, a reality of legal dualism in Poland came to life.
During the last 5 years, the composition of the Tribunal changed significantly. Currently, out of 15 judges, 14 of them were proclaimed by the current ruling majority. It is worth mentioning that the governing party’s representatives never bothered to deny that the main eligibility criterion was loyalty and obedience towards the authorities. That composition and the introduced reforms turned this institution, which is supposed to be impartial and independent of the legislature and the executive, into a machine created for approving party decisions and fully subordinate to the government.
At the same time, from 2016 onward, the legislation on abortion, which applied at that time, has been subjected to attempts of amendment. The ruling party tried to proceed with projects of total ban on abortion several times. However, each time that happened, the governing majority changed their minds and withdrew from their proposals, influenced by mass protests organized by, among others, the National Women’s Strike association. Eventually, it was preferred to transfer the weight of decision to the obedient Constitutional Tribunal. In the end of 2019 a group of 119 members of parliament affiliated to PiS, Konfederacja and PSL-Kukiz’15 (parties in coalition with PiS) filed a motion to declare the abortion of fetuses with congenital defects illegal in the light of the Constitution.
Almost a year after the motion was filed, in the middle of the coronavirus pandemic, the Constitutional Tribunal decided that in cases when “prenatal examinations or other medical indications point to a high probability of severe and irreversible impairment of the fetus or an incurable life-threatening disease”, abortion will be illegal.
Consequences of the verdict
The verdicts of the Constitutional Tribunal are final, which means there is no way of appealing their content, and they are universally binding. The moment the verdict will be published, the abortion in Poland will be legal only in two cases, that is: when the mother’s life or health is threatened by continuing the pregnancy and when the pregnancy results from a criminal act: rape, incest or pedophilia. It should be mentioned that in 2019, among 1100 legal abortions performed in Poland, 1074 (nearly 98% of all) were carried out due to fetus impairment, 33 resulted from pregnancy imposing threat to mother’s life and only three women underwent abortion on account of pregnancy resulting from a criminal act.
Nevertheless, what is important is that the Constitutional Tribunal’s verdict does not limit the parliament’s possibility of modifying the abortion laws in the future. It means, it is possible to liberalise the law or bring back the supposedly unconstitutional clause. Of course, such action may be declared unconstitutional over and over again, however the Constitutional Tribunal may change its interpretation of Constitution in the future, because only a well-established interpretation closes the way to discussion on a given topic.
The most numerous protests since the times of “Solidarity”
Having in mind the past years protests, it should not be surprising that the society showed a great dose of emotions towards the result of the ruling. Those emotions led to a wave of mass protests all over Poland: as believed by many, the most numerous since the times of “Solidarity”. For 14 days now, every day, not only in Warsaw, but also in smaller cities and towns, people go out on the streets to manifest their objection to depriving women of their fundamental rights. One of the biggest protests took place in Warsaw on 30 October under a slogan “Everyone to Warsaw”. It was estimated by the police that approximately 100 thousand people joined the protests in Warsaw on that day. Yet, defending the right to abortion, which was and still is the reason why it all started, is not the only demand of the protesting now. Other social groups, like taxi drivers, farmers, artists and students, rose to manifest their support for women, as well as their objection towards the government’s actions.
The signs of solidarity with Polish women are being sent to Poland from all over the world. During the last two weeks, almost in every European capital city, there has been manifestations of support for Polish protests. Voices of support are heard from even the most remote locations, like Bali and Australia.
The National Women’s Strike association has taken over the role of coordinator of the grassroots social movements. In the evening of 1 November, the association established the Consultative Council, which is responsible for converting the demands submitted to the National Women’s Strike by thousands of protesters into legal solutions. The most important postulates include:
• subsidizing health care with 10% of state budget funds
• resignation of newly proclaimed Minister of Science and Education Przemysław Czarnek, a highly controversial figure
• immediate cessation of state funding for the Catholic Church and de facto separation of Church and state
• elimination of civil law labor contracts (highly inconvenient from the employee’s point of view), combating mobbing and exploitation
• combating the climate crisis
• a better Poland for LGBT+ people
• restoration of free public media, currently controlled to a high extent by the ruling party, making them a real source of knowledge and information
• broader financial assistance to entrepreneurs.
Authority’s reaction to the protests
The peaceful protests were met with backlash from the authority’s side. Jarosław Kaczyński – leader of PiS – speaking in the name of the governing coalition, stated that the demonstrations account for an attack on Polish identity. Kaczyński moved as far as to issue a statement, in which he declared:
“There are elements of preparation, maybe even training, in these attacks. These attacks are intended to destroy Poland. They are to lead to the triumph of forces whose power will end the history of the Polish nation as we know it. The nation we have in our minds and in our hearts”.
In the very same statement, Kaczyński called his electors to defend the Catholic Church and the Christian values, which in practice was perceived as encouraging one social group to attack the other. However, as it may be observed for several days now, some members of the governing side have been trying, ineffectively, to comfort the public discontent. The Prime Minister, Mateusz Morawiecki, in his speech on 4 November made a call to stop the protests due to the epidemiological threat and to relocate the protests to the virtual sphere (basically, to manifest the discontent on the Internet).
The President, Andrzej Duda, decided to take the stand as well, and announced that he would submit a bill to parliament, which would de facto tighten the abortion compromise we had known until 22 October. According to the President’s statement, "this project provides (...) the possibility of terminating the pregnancy, in a manner consistent with the principles of the Polish Constitution, only in the event of such lethal defects, which, according to the results of prenatal tests or other medical indications, constitute a high probability that the child will be born dead or burdened with an incurable disease or defect, that will lead to inevitable and direct death of the child, regardless of the applied therapeutic measures”. This proposal means that if prenatal tests indicate severe and incurable fetus impairment, which however does not lead to the death of the child, the pregnant woman will be forced to give birth to such child.
Until now, abortion in such case was legal and allowed. The President states that his proposal is supported by the majority of the society, which is far from the truth. According to IBRIS survey for Rzeczpospolita journal from December 2019, is was clear that 50% of the society supported the current at that time legislation, and 29% was in favour of facilitating the access to pregnancy interruption. In the IPSOS survey for OKO.press association from December 2018, 78% of the respondents claimed that a woman should be given the right to terminate the pregnancy if the prenatal tests indicate severe and irreversible fetus defect, or an incurable disease imposing threat to its life.
Potential development of the situation
The Constitutional tribunal’s verdict on abortion ban was a sort of wake-up call for the Polish society. As we observe, people who protest do not object the limitation of access to abortion only, but also they manifest their disagreement with the government’s action in many other aspects of public life, like education or healthcare. PiS, through reforms implemented during the last 5 years of its government, came into possession of nearly absolute power, which acted like a blindfold for the authority’s representatives and made them reluctant to answer the citizens’ needs.
It should be considered disturbing just how many people know so little about how the state functions and how it is constructed. Until now, the government has been getting away with the progressing dismantling of the institutional democracy and rule of law. The majority of the society did not understand the changes or did not recognize them as problematic. Truth be told, all negative reforms introduced in the judiciary area have always met the objection of public opinion, however, the independence of courts and prosecution was mostly defended by conscious and educated citizens, who possess advanced knowledge in the area of human rights and freedoms. It was only when law became a threat to the fundamental human rights and health, that caused mass protests.
Additionally, for the first time in 5 years, it is the young generation, so far not too involved in civic life (apart from in the climate sector), protesting on a massive scale. Lots of positive energy and the willingness to change the functioning of the current system may be observed on the streets now. There are many promising young women who have the potential to become leaders, are highly competent, can speak their minds and have political intuition. Time will show what will happen to these women and what they will face in the future. If they engage in politics, where they could begin to use their full potential, it would create a great chance to improve the situation. In the current circumstances, it is equally important for the media to notice the young generation and the women, so that there is more space for them in the public dialogue.
Will the protests lead to more profound changes on the Polish political stage? In the present situation, it is very difficult to produce a clear answer to this question. We can see that the representatives of the National Women’s Strike are trying to convert the positive energy harvested in the streets into specific demands and proposals for legislative solutions. The problem, however, is that the ruling party shows no signs of interest in engaging in the dialogue with the society. On the contrary, we are witnessing mass acts of burying the heads in the sand, with the use of the entire state apparatus, including the prosecutor’s office, police and even the army.
Scratches on the monolith of the government are visible
There are voices from within the ruling group, that this time the party crossed the line with its actions. Near future will show, which side of the conflict is more determined to break even. Will the society pressure the government strongly enough to make it start fulfilling the demands of the society, or will the ruling party cling to the remnants of its power at all cost?
Will the energy of young people and women be used properly and lead to positive changes in the country? I hope so. As a woman, as a Polish citizen, I wish it would, for the sake of all Poles and for my own.
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