Life After Law and Justice: The Future of Polish Abortion Law

By Caitlin Urisko

On October 15, 2023, Poland’s Law and Justice Party, commonly known by its Polish acronym “PiS,” lost the majority vote in the Parliamentary election.[1] Three opposition parties, the Civic Coalition, The Left, and the Centrist Third Way commanded around fifty-four percent of the votes.[2] After nearly eight years in power, Poland’s Law and Justice Party lost a confidence vote in December 2023 after several failed attempts to find a coalition to keep power.[3]

 Jarsolaw Kaczynski founded the Law and Justice Party on June 21, 2001, with his brother Lech Kaczynski.[4] Although initially founded as a centrist Christian democratic party, PiS quickly adopted more culturally and socially conservative views.[5] Recently, the party was largely known as a Christian nationalist party allying itself with controversial bishops and using the Polish Catholic Church to gain party support.[6] The party purported to represent strong family values encouraging procreation among married couples.[7] It opposed abortion and greatly restricted polish women’s access to abortion.[8] It also opposed euthanasia, comprehensive sex education, in-vitro fertilization, and gay rights.[9] Poland’s current Prime Minister, Donald Franciszek Tusk, seeks to undue PiS’ “transformation of the polish state,” which “restricted the rights of migrants, women, and LGBTQ+ individuals.”[10] In a December speech to the Polish Parliament, Prime Minister Tusk said, “we will chase away the darkness, we will chase away the evil,” referring to the previous PiS policies.[11] Jarslow Kaczynski, current leader of PiS and Poland’s de facto leader since 2015, shared his own grim thoughts when saying, “this is the end of Polish democracy.”[12]

The success election of Poland’s new ruling party is largely attributed to the large turnout of youth voters.[13] Data from the polls demonstrates that 68.8% of voters under age twenty-none turned out, a significant increase from the 46.4% turn out in the 2019 parliamentary election.[14] Young voters hope that new leadership upholds its promises to “address women‘s and LGBTQ+ rights.”[15] Jacek Kucharczyk, a sociologist and director of the Institute of Public Affairs, attributed youth support of Donald tusk to more attractive policies including his intention to introduce same-sex civil partnerships and the potential pro-abortion legislation.[16]

A new political era dawns in Poland after the fall of PiS. Image courtesy of Vecteezy.com.

Paulina Pospienszna, a political scientist at Adam Mickiewciz University in Ponznan, Poland, highlighted the massive abortion protests in 2020 as “a breakthrough moment for youth mobilization.”[17] She further stated that, “[m]any felt agency and the need to protest because religion and politics encroached on their private lives too much.”[18] Interestingly, former PiS Prime Minister, Matesusza Morawieckiego, likewise attributed these increased restrictions to PiS’ loss.[19] However, he maintained his support for the previous abortions restrictions termed the “abortion compromise.”[20]

Poland once had fairly broad abortion rights.[21] In 1956, Abortion was legalized with minimal restrictions during communism.[22] These broad abortion rights were progressive and were advanced compared to Western democratic peers.[23] The affordability and availability of abortions drew women from around Western Europe to Poland for decades.[24] After the fall of communism in 1989, and pressure from the Catholic church, the newly elected Parliament proposed a ban on abortion.[25] Parliament essentially outlawed abortion in 1993, with three exceptions: danger to the health of life of the mother, rape and incest, or fetal abnormalities.[26] These restrictions were commonly known as the “abortion compromise.”[27] In 1996, a liberal parliament attempted to pass a law restoring abortion rights, but the Constitutional Court held the law as unconstitutional based on Article 38 of the Polish Constitution, which ensures the “legal protection of the life of every human being.”[28] In 2020, the Constitutional Tribal made a decision further restricting abortion access by removing the fetal abnormality exception, which has caused significant outrage among polish citizens.[29] Women faced strict and extreme enforcement of these laws. In one instance, the police investigations into a woman’s miscarriage included searching plumbing and waste pumps to ensure that no abortion occurred.[30]

On January 24, 2024, Prime Minister Tusk reinforced his intention to propose legislation to relax the abortion ban and lessen restrictions on the morning after pill.[31] One bill would allow abortions to occur up to the end of the first trimester.[32] Additionally, the new government seeks to expand the current "health of the mother” exception to include mental health along with physical health.[33] Although the change in governments presents an opportunity for pro-choice supporters, several obstacles exist on the road to liberalization. In fact, the current Polish President Andrzej Duda, a PiS party member, remains in power until 2025.[34] This means that he could veto any attempt to change the current laws.[35] Furthermore, PiS appointed all current judges of Poland’s highest court, which means a high likelihood of success of challenges to proposed legislation liberalizating the current laws.[36] The Constitutional Tribunal previously upheld the current laws despite multiple challenges and amiss public outrage.[37] Regardless of the challenges, the world will undoubtedly be watching Polish legal and political developments in a post-PiS era.

[1] Madison Minges, Four Questions About Poland’s Election Results, American University (Oct. 17, 2023), https://www.american.edu/sis/news/20231017-four-questions-about-poland-s-election-results.cfm.

[2] Id.

[3] Rob Picheta, Poland’s Law and Justice Party Loses Power After Eight Years of Authoritarian Rule, CNN (Dec. 12, 2023, 9:40 PM),  https://www.cnn.com/2023/12/11/europe/poland-pis-confidence-vote-tusk-intl/index.html.

[4] Law and Justice, Wikipedia, https://en.wikipedia.org/wiki/Law_and_Justice#:~:text=Its%20chairman%20is%20Jaros%C5%82aw%20Kaczy%C5%84ski,a%20way%20to%20gain%20support (last visited Jan. 29, 2024).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Picheta, supra note 3; see also Donald Tusk, Wikipedia, https://en.wikipedia.org/wiki/Donald_Tusk#:~:text=Donald%20Franciszek%20Tusk%20(%2Ftu%CB%90,Council%20from%202014%20to%202019 (last visted Jan. 29, 2024).

[11] Jan Cienski, Poland Bids Bye-Bye to PiS and Hello to Donald Tusk, Politico (Dec. 11, 2023, 4:03 AM), https://www.politico.eu/article/poland-bye-to-pis-and-hello-to-donald-tusk/.

[12] Id.

[13] Sarah Rainsford, Poland Election: Women and Youth Force PiS from Power, BBC (Oct. 20, 2023, 9:57 PM), https://www.bbc.com/news/world-europe-67156864. 

[14] Id.

[15] Katarnzyna Piasecka and Weronika Strzyzynska, We Have the Chance to Change Poland: How Young Voters Shaped the Election Result, The Guardian (Oct. 21, 2023), https://www.theguardian.com/world/2023/oct/21/young-voters-who-shaped-poland-election-result.

[16] Id.

[17] Id.

[18] Id.

[19] Pushing for Abortion Ban Was a “Mistake”, Admits Polish Prime Minister, Notes from Poland (Nov. 6, 2023), https://notesfrompoland.com/2023/11/06/pushing-for-abortion-ban-was-a-mistake-admits-polish-prime-minister/,

[20] Id.

[21] Katrin Benhold and Monika Pronczuk, Poland Shows the Risk for Women When Abortion is Banned, New York Times, https://www.nytimes.com/2022/06/12/world/europe/poland-abortion-ban.html (last updated June 26, 2022).

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Katrin Benhold and Monika Pronczuk, Poland Shows the Risk for Women When Abortion is Banned, New York Times, https://www.nytimes.com/2022/06/12/world/europe/poland-abortion-ban.html (last updated June 26, 2022); see also The Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion Act, art. 4 (a) (1)-(4) (Jan, 7, 1993) (English Translation) (https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Polish%20abortion%20act--English%20translation.pdf).

[27] Pushing for Abortion Ban Was a “Mistake”, Admits Polish Prime Minister, supra note 18.

[28] Benhold and  Pronczuk, supra note 20. Poland Constitution, ch. 2, § 2, art. 38. (Apr. 2, 1997), https://www.servat.unibe.ch/icl/pl00000_.html#A038_. 

[29] Rosie Birchard, Poland’s Strict Abortion Laws Leave Women Few Safe Options, PBS News Hour (July 18, 2022, 6:30 PM), https://www.pbs.org/newshour/show/polands-strict-abortion-laws-leave-few-safe-options-for-women. 

[30] Wojcoech Kosc, Outcry in Poland After Claims that Prosecutors Drained Cesspit in Abortion Probe, Politico (July 27, 2023, 8:02 PM), https://www.politico.eu/article/poland-abortion-probe-outrage-prosecutors-drain-cesspit/.

[31] Poland’s New Government to Propose Legislation Easing Near Total Abortion Ban, France 24 (Jan. 24, 2024, 8:16 PM), https://www.france24.com/en/europe/20240124-poland-new-government-legislation-easing-abortion-ban.

[32] Id.

[33] Peter Pinedo, Polish Elections Point to Possible Shift in Country’s Abortion Laws ‘Political Clashes’, Catholic News Agency (Oct. 17, 2023), https://www.catholicnewsagency.com/news/255711/polish-elections-point-to-possible-shift-in-country-s-abortion-laws-political-clashes.

[34] Daniel Tilles, Poland’s Near Total Ban on Abortion Violated Pregnant Woman’s Rights, Finds European Court, Notes from Poland (Dec. 13. 2023), https://notesfrompoland.com/2023/12/14/polands-near-total-ban-on-abortion-violated-pregnant-womans-rights-finds-european-court/.

[35] Id.

[36] Id.

[37] Birchard, supra note 28.