Democratic tsunami in Poland
Setting the scene
The recent abortion judgement of the Polish Constitutional Tribunal (CT) caused a stir not only domestically but also abroad. On 22 October 2020 the Polish CT – with the majority of voices (and two dissenting opinions) – declared that abortion in cases where the foetus has serious and irreversible birth defects is unconstitutional. This motion has only added fuel to the fire: since 2015, when the Law and Justice party (PiS) came to power, the CT has been increasingly packed with judges loyal to the party (including the famous doubler justices, “midnight judges” elected for the positions already occupied by the justices). Moreover, Julia Przyłębska’s status, the Tribunal’s president, was questioned by the Supreme Court. The CT has become a servile institution responsive to party’s political needs.
The recent ruling is therefore highly controversial from a formal point of view: not only because it was issued by the judges, some of whom were elected in unconstitutional proceedings, but also because of the previous ad hoc changes in the CT adjudicating panel introduced by Mrs Przyłębska. As far as the material side of the problem is concerned, the CT introduced a change to criminal law — it abrogated regulation entitling for a pregnancy termination, and some conducts have now become unlawful (a similar problem occurred after the CT ruling in 1997). This abrogation does not respect the principle of judicial self-restraint. The recent judgement caused not only serious concern among the legal scholars, but also a democratic tsunami of a size that surprised everyone. Before I get into the domino effect that started once the ruling was announced, let me briefly discuss the context of the judgement.
Legal side of the story
As was already raised by Anna Rakowska-Trela, up until the said judgement, a so-called “abortion compromise” was in force, established in 1997 after the CT ruling (which declared abortion for economic reasons unconstitutional). Since then, abortion has been allowed in three cases: when prenatal testing indicates severe foetal harm; in the case of rape or incest; or when pregnancy threatens a woman’s life or health. The first case, now unconstitutional, was the most common reason for legal abortion in Poland. Only last year, 1110 abortions were conducted, 97 per cent of them (1074) because of fetal abnormality — with a majority of cases caused by trisomia 21 (Down’s Syndrome). Obviously, these are only the registered cases: some estimations point to as many as 100,000 abortions annually conducted by the Polish women. Therefore, there is a huge discrepancy between what the law demands and what actually happens. The Polish younger generation, especially young women, do not share the values of the older ones — in fact, according to a study conducted by Pew Research Center, there is a wide generation gap: “just 16% of adults under 40 say religion is very important, compared with 40% of older people who say this.” This discrepancy of values calls for an analysis from the socio-legal perspective applying Durkheim’s taxonomy and his distinction between law and morals and the disintegration thesis — but it is all for a longer text. Nevertheless, the recent restriction will surely not lead to a drop in the abortion numbers. It rather treats law as an instrument of coercion applied to a highly sensitive area.
Moreover, support for abortion has waivered through the years — not only because of the legal norms, but also the general atmosphere and public discourse. In the early years of democratic Poland, when more liberal regulations were in force, more people supported abortion because of economic reasons (53 per cent in 1992, whereas in 2006, one year after the first PiS government seized the power, this dropped to only 27 per cent). After the first women’s protest against restrictions in the abortion law in 2016, a slow liberal trend among the public opinion was noticeable. A few days after the CT’s decision a new poll indicated that 22 per cent of the respondents supports conducting abortion until 12 week. Abortion because of foetus abnormality is supported by a majority of people — 59 per cent.
Social circumstances and the general public attitude toward abortion were excluded from the judicial examination on the 22th October. In 2016 there was a mass protest against abortion restriction. This protest was evidence of how the values of young women differ from those of the older male rulers (and contemporarily there is even greater problem of discrepancy between young educated mobile women and less so young men). The abortion problem appeared once again on 22nd October this year. The argumentation provided by the CT relied on the constitutional right to life and right to dignity, which was expanded to a foetus with severe and incurable life-threatening defects. However, only two dissenting opinions by Judge Leon Kieres (the only judge now not nominated by the PiS party) and Judge Piotr Pszczółkowski (one of the judges elected by PiS) raised different perspectives on the matter.
Kieres argued that even though as a Catholic he is inclined to think that the protection of an unborn child should be an effective right, he cannot share the majoritarian view. This highly controversial and potentially divisive issue was resolved by the CT, so by an undemocratic and unelected body. It seems that the authorities tried to circumvent the democratic process to avoid political responsibility. It should be noted that the two citizen initiatives were dealt with by the Parliament during the PiS term, but both failed — the huge protests against further abortion restriction in 2016 were something that PiS feared.
Moreover, a petition calling for the constitutional review of the very same rule of the abortion statue was made to the CT in the previous Parliamentary term, but to no effect — the motion was not even dealt with because of Przyłębska’s decision (or Kaczyński’s, to be fair, as was convincingly explained by Wojciech Sadurski). Moreover, Pszczółkowski raised the issue of women’s dignity and protection from inhumane treatment. The judge claimed that the burden of this protection should be put on the state, not on the mother. He also claimed the state had not done enough in the past to help women financially after difficult pregnancies, even though the constitution guarantees the protection of the mother’s life. Moreover, he said, the social consequence of the ruling will be to encourage so-called ‘abortion tourism’ and will not provide the effective protection of an unborn (not to mention illegal abortions causing a threat to a mother’s life and health).
Nevertheless, the CT has made the decision. One of the probable reasons behind ruling abortion cases now is the poor handling of the pandemic by the government. The infection rate was still rising and setting up a new political conflict was a way of distracting attention. However, few could have predicted the huge resistance movement against the CT’s decision and the depth of the political and healthcare crisis, apparently still unfolding.
It seems that the decision taken up by the politicised and dependent Tribunal triggered the eruption of (1) anger at the CT decision, broadly understood as stripping the women off their autonomy and their right to choose; (2) distrust towards the Law and Justice (PiS) government caused by its poor management of the pandemic crisis and its previous antagonisation of the Polish society; (3) hatred toward the Catholic Church, a church blamed by a younger generation for its constant interference in politics, as well as caused a discussion in the Church itself; (4) women’s voices forcefully challenging the patriarchic culture entrenched in the Polish public sphere; (5) further deepening of the constitutional crisis and questioning legitimacy of the CT.
We still don’t know what impact the huge protests have on the increase in coronavirus infections. A small glimpse of hope is the research conducted in the US after the protests against systemic racism this year, which indicate that there is “no evidence that urban protests reignited COVID-19 case or death growth after more than five weeks following the onset of protests.” This list by no means exhausts all of the social and legal consequences of the judgement. However, we can be sure that the crisis will cause an existential threat to the governing right-wing coalition.
Mass protests all around Poland, even in smaller cities where PiS usually won, continued through the next weeks with a growing political agenda. At the beginning, protests were spurred by women feeling deprived of their autonomy and the right to choose: the postulates of unrestricted abortion dominated. Only a few days later diverse social groups joined the protesting young women: taxi drivers, medical doctors from their ambulances, miners, as well as some part of the football fans. The postulates of women’s rights were gradually dissolved in the mass crowds chanting “wypierdalać” (“fuck off”) to the governing party, armed with the meme-like anti-PiS cardboards (this is another interesting point on how some of the young protesters subvert the symbols usually associated with right-wing politics). It is also interesting to look at it from Durkheim’s perspective. For him, individualism that was not “the glorification of the self but of the individual in general” is a new form of a religion, “the only system of beliefs which could ensure the moral unity of the country.” The focus on personal autonomy, the emphasis put on an individual right to choose and huge critique of the Catholic Church may indicate the rise of a new moral paradigm in Poland.
The anti-church dimension of the protests was also visible. Incidents of interrupting the Holy Masses and acts of vandalism on the Church’s facades were noted, what prompted Kaczyński to give a threatening statement. He called for defending churches at any cost: “I call on all PiS members and all those who support us to take part in the defence of the church.” Moreover, Kaczyński tried to further antagonise people by the introduction of the rhetoric of conflict and even war. As he warned: “These demonstrations will most certainly cost many lives,” but fortunately the protesters managed to avoid clashes with church defenders (even though there were some with football hooligans). Despite (or because of?) Kaczyński’s statement, in the middle of the second wave of protest in Warsaw on the 30th October at least 100,000 people gathered — one of the biggest protests in the modern Polish history (comparable only to the nationalist marches from almost a decade ago).
The secretary of state in the Ministry of Justice announced that the protestors would be severely punished for creating an epidemic threat. Facing the rising anger, Poland’s President, Andrzej Duda, proposed a new bill that might serve as a new compromise: it follows the CT’s decision, but outlaws abortions when foetuses are diagnosed with Down syndrome. Even though some moderate politicians (such as Jarosław Gowin) support this proposal, it did not meet popular expectations: 60 per cent of the people are against the bill. Moreover, because of the pandemic, just before the All Saints’ Day and with the Vice-PM assuring the contrary, the Prime Minister announced the total closure of cemeteries, angering those Poles attached to the tradition of visiting their deceased ancestors. Moreover, the government has recently decided not to publish the CT decision, thus creating even more legal chaos.
Towards an end?
The uncoordinated reaction from the government leads me to think of the current state of democracy depicted by David Runciman. If everything is now interconnected — the abortion issue proved that to be true — then it makes governing a hard task. Too much information causes distress, and it is impossible to predict the consequences of the moves. Politics has no place there since the predominant feeling is powerlessness. Runciman evokes a book by Christopher Clarke, “Sleepwalkers”, describing the outbreak of the First World War: “contingent choices, shaped by particular circumstances, drove individuals to make what would only emerge in hindsight as catastrophic mistakes. These politicians were not simply in some hypnotic trance, doing what the system demanded of them. They were moving purposefully in their sleep, jerkily incontinent, full of energy and life, oblivious to the wider picture. They were sleepwalking to disaster as gamblers do, blind to their inability to control their fate.”
A similar attitude might be subscribed to the CT. The judges did exactly what they’ve been doing for the last four years — being responsive to the politics. They fulfilled the expectations of the system designed mostly by Jarosław Kaczyński. The CT’s decision seems to be an unconscious one. It is just an automatic response of the system that does not acknowledge almost certain consequences (the protests of 2016 were an important indication of the social moods toward abortion). Moreover, it is a tough situation for a government fighting with the pandemic: how to relax the social tension by not curtailing the biggest anti-government and democratic outbreak? The sequence of uncoordinated steps taken by the authorities is the continuation of this somnambulic dance. As Runciman points out, “to break free is to break the chain”, and in this very moment everything collapses. If Kaczyński is be deprived of generating power, the whole system that has been built from 2015 will collapse. But maybe Poland needs a reboot.