How Poland’s Conservative Government Stacked the Highest Court to Create Near Total Ban on Abortion Against the Will of the People

By Jordan Chrispell

On October 23, 2020 the Constitutional Tribunal, the highest court in Poland, ruled that abortions are illegal in instances of fetal defects.[1] The court based its ruling on the idea that fetuses are “unborn child[ren]” that deserve protection under the Polish Constitution, which guarantees to protect the life of every person.[2] Nearly all abortions in Poland, ninety-eight percent in 2019, were performed based on severe fetal defects.[3] Therefore, this new court ruling that went into effect on January 28, 2021 has banned almost all abortions in Poland.[4] Abortion is still allowed in cases of rape, incest, or to save the life of the person who is pregnant.[5] Any doctor that performs an outlawed abortion can face up to three years in prison.[6]

 This lawsuit was brought as a challenge to a 1993 law that allowed abortions when there was a “severe” fetal defect.[7] At the time, it was one of the most restrictive abortion laws in Europe.[8] Each year there are roughly 1,000 legal abortions performed in Poland.[9] Comparatively, each year an estimated 200,000 abortions are sought abroad or illegally performed in Poland.[10]

 The 1993 law was part of a compromise between the Catholic church and Polish political leaders.[11] During this time, the country was in the midst of transitioning out of communism.[12] Catholic church leaders in the country sought a total ban on abortion.[13] In contrast, as a former soviet bloc country, citizens generally held far more liberal view of abortion.[14] Since then, both pro- and anti-choice groups have sought to reform the 1993 law.[15] Recently, conservative governments have tried to institute total bans of abortions in 2016 and 2017, which were met with massive protests.[16]

 Since the proposed legislative total abortion bans failed, anti-choice politicians moved their fight to the courts to change abortion laws, with the assumption that doing so would spur less of backlash.[17] In 2020, President Andrzej Duda (of the conservative Law and Justice Party) pushed for the Constitutional Tribunal to review the 1993 law with a few years remaining before the next elections.[18] Duda knew the law would be unpopular but wanted to “reward” the church and hyper conservative groups for their support.[19] The court’s ruling did in fact prove to be highly unpopular, with a large majority of Poles disapproving of it and many protests occurring afterwards.[20]

 The Court’s ruling occurred after years of chipping away at the judicial independence of Poland’s highest court.[21] The Constitutional Tribunal is made up of fifteen judges who each serve nine-year terms after appointment. The court is tasked with reviewing the constitutionality of federal legislation.[22] Previously, all candidates for the court would be selected by an independent body, called the National Council of the Judiciary (KRS).[23] “The Council [was] composed of 25 members: 15 judges from Poland’s various courts, four members of the Sejm appointed by the Sejm, two members appointed by the Senate, the President of the Supreme Court, the President of the Supreme Administrative Court, the Minister of Justice, and one member appointed by the President of the Republic.”[24] The fifteen judges on the KRS were formerly appointed by judicial assemblies.[25] However, in 2017, President Duda enacted legislation that allows the Sejm to appoint judicial members to the KRS.[26] The law also terminated the council’s current judicial members, so that the Sejm (controlled by President Duda’s conservative Law and Justice party) could appoint fifteen new judicial members immediately.[27] The Sejm then lowered the mandatory retirement age for judges on the Constitutional Tribunal, which would have caused more openings on the court to appoint conservative judges.[28] However, this measure was reversed after sharp criticism from the European Court of Justice calling the move contrary to principles of judicial independence.[29]

 Of the fifteen judges on it, the Constitutional Tribunal is presently composed of fourteen judges selected by the Law and Justice Party.[30] The legality of the appointment of some judges has been called into question due to their political backgrounds.[31] Others have called the entire court illegitimate along with all of the court’s recent rulings, including the abortion case.[32]

 The law has already created massive impacts. Since the law has gone into effect, the country has seen some of its largest protests and faced criticism from around the world.[33] Within six months of the law’s enactment, a nonprofit called Abortion Without Borders, assisted 17,000 people access abortion via mailed medication or in clinics outside of Poland.[34] This number is up from the 5,000 people the nonprofit assisted in 2019 before the court’s ruling.[35] A different nonprofit, Women Help Women, has had 46,000 requests for assistance and provided help to 10,000 people with mailed abortion pills under the new law.[36] Furthermore, in 2020, a group was created in the neighboring Czechia, to help Polish people access abortion there.[37] This group, along with other similar groups in countries near Poland, covers the costs of the abortion, travel, and accommodations.[38] However, Covid and accompanying travel restrictions have placed another barrier in the way of Poles seeking abortions outside of Poland.[39]

More recently, pro-choice activists opposing the ban are being threatened and have been suppressed from protesting with anti-protest laws.[40] Anti-choice groups have proposed a new bill via a citizen’s initiate that would criminalize illegal abortion punishable by twenty-five years in prison.[41] The bill would essentially treat abortion as homicide.[42]

On October 27, President Duda proposed a bill that would legalize abortions in cases where the fetus could not survive after birth, but still ban abortions in cases of Down Syndrome.[43] However, this proposed bill was rejected by activists and opposition party politicians.[44] Instead, protestors are pushing for the government to resign and a for a liberal abortion law to be passed.[45] Others are asking for a referendum to vote on abortion laws.[46]

It remains to be seen what will happen next in Poland regarding abortion. The country is facing a crucial moment in its history in which its highest courts have been manipulated by a conservative government to pass through unpopular legislation that nearly eliminates access to abortion.[47] The European Union may need to step in to address the legitimacy question of the appointment process and current makeup of the Constitutional Tribunal.[48] If the court is deemed unconstitutional, it is still questionable if the abortion law then be reversed.[49] Many questions remain unresolved including the future of Poland’s abortion laws. In the meantime, it is evident that the people of Poland trying to access abortion will suffer the greatest consequences but they will continue to be supported by pro-choice activists and nonprofits who are still fighting for safe and legal abortion access.[50]

[1] Adam Easton, Poland Abortion: Top Court Bans Almost All Terminations, BBC News (Oct. 23, 2020) https://www.bbc.com/news/world-europe-54642108.

[2] Poland Enforces Controversial Near-Total Abortion Ban, BBC News (Jan. 28, 2021) https://www.bbc.com/news/world-europe-55838210; Konstytucja Rzeczypospolitej Polskiej [Pol.] [Constitution] Apr. 2, 1997, art. 38.

[3] Easton, supra note 1.

[4] Poland Enforces Controversial Near-Total Abortion Ban, BBC News (Jan. 28, 2021) https://www.bbc.com/news/world-europe-55838210.

[5] Id.

[6] Sandrine Amiel, 100 Days Since Poland Banned Abortion, Polish Women are Fighting Back, (Dec. 15, 2021) EURONEWS https://www.euronews.com/2021/05/12/100-days-since-poland-banned-abortion-polish-women-are-fighting-back.

[7] Adam Easton, Poland Abortion: Top Court Bans Almost All Terminations, BBC News (Oct. 23, 2020) https://www.bbc.com/news/world-europe-54642108; Poland Enforces Controversial Near-Total Abortion Ban, BBC News (Jan. 28, 2021) https://www.bbc.com/news/world-europe-55838210.

[8] Vanessa Gera, Why an Abortion Law Ruling Triggered Mass Protests in Poland, AP NEWS (Oct. 30, 2020) https://apnews.com/article/virus-outbreak-poland-abortion-courts-europe-2f99633e9c504b302855ea9848037cb2.

[9] Poland Enforces Controversial Near-Total Abortion Ban, supra note 4.

[10] Id.

[11] Gera, supra note 8.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Gera, supra note 8.

[18] Id.

[19] Id.

[20] Id.

[21] Allyson K. Duncan & John Macy, The Collapse of Judicial Independence in Poland: A Cautionary Tale, 104 Judicature 3 Fall/Winter 2020-2021.

[22] Poland Elects Controversial Judges to Constitutional Court, DW https://www.dw.com/en/poland-elects-controversial-judges-to-constitutional-court/a-51376755 (last visited Sept. 5, 2021).

[23] Duncan & Macy, supra note 21.

[24] Duncan & Macy, supra note 21. (The Sejm is the lower house of Parliament).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Gera, supra note 8.

[31] Poland Elects Controversial Judges to Constitutional Court, supra note 22.

[32] Gera, supra note 8.

[33] Amiel, supra note 6.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Amiel, supra note 6.

[40] Amiel, supra note 6.

[41] Id.

[42] Id.

[43] Gera, supra note 8.

[44] Id.

[45] Id.

[46] Id.

[47] Allyson K. Duncan & John Macy, The Collapse of Judicial Independence in Poland: A Cautionary Tale, 104 Judicature 3 Fall/Winter 2020-2021.; Vanessa Gera, Why an Abortion Law Ruling Triggered Mass Protests in Poland, AP NEWS (Oct. 30, 2020) https://apnews.com/article/virus-outbreak-poland-abortion-courts-europe-2f99633e9c504b302855ea9848037cb2.

[48] Duncan & Macy, supra note 21.

[49] See Gera, supra note 8.

[50] See Amiel, supra note 6.