Today, Polish constitutional tribunal ruled, that the termination of pregnancy when fetus is ill, deformed or unlikely to survive on it’s own is against Polish constitution. This was one of the three cases when abortion was legal in Poland (other two being when the baby is a result of a rape and if the mother’s life is at risk) and constituted 98% of legal abortions in the country. Considering the fact, that obtaining legal abortion in Poland was even before that very difficult, as many doctors or even whole hospitals refused to perform the procedure, the abortion in Poland is virtually impossible now.
This is a black day for the rights of Polish woman and for the Polish democracy. And a great opportunity for people in other countries to learn from the mistakes of others. Because while the regime in “The Handmaids Tale” has been brought by force, in the real world, as we can see on example of Poland now, it has been brought by people’s indifference.
See, when PiS took over the power back in 2015 and immediately begun dismantling instruments of Polish democracy many people (including me) were immediately worried. But some were not, and thought our alarming is just an exaggeration.
But now it should be clear to everyone why having working democracy is important. Why?
Polish abortion law until today has remained unchanged since 1993, when the politicians came to, what they called, “an abortion compromise”. Compromise was, that abortion was by definition illegal with the three exceptions mentioned:
– to save life of mother
– if the fetus was badly damaged or ill
– if the pregnancy was a result of a rape
Of course the abortion law was constantly present in the political discourse. It was being brought over and over by the right – who knew they had no chance of making it any stricter, as until the first PiS government the majority of Poles were pro-abortion, at least in some form. With the first rule of Kaczyński the narration has shifted, and for the first time more Poles were supporting abortion ban (with some exceptions) than legalization of abortion (with, or without, exceptions). But over all those years the situation was pretty stable. Most Poles were happy with the current law (according to Millward Brown poll from April 2016 it was 54%). But in recent years more and more Poles were calling for liberalization of the abortion law (according to the same poll 29% Poles wanted to ease access to abortion while only 12% wanted to limit it even further).
Politically speaking, it was a no-go, for anyone. The right side knew they have no chance to push it trough in a democratic process. The liberal side avoided the subject, as it did not wanted to stir the discussion again which would lead to yet another unproductive brawl. It was commonly considered as a “smokescreen subject” – whenever some scandal emerged, the topic of abortion was being brought up again to divert public’ attention from the matter in hand. And, until recently, nothing was coming out of it. Of course, the matters regarding womans’s right and abortion aren’t just a smokescreen subject. It is an important, very important thing. But as long as the situation was in line with the will of the majority of Poland it was not that bad.
Until recently. Because now PiS is in power. Kaczyński’s strongest ally is the Polish Catholic Church, he is also keen to win over the voters that support even more right wing party – Konfederacja. He tried to push the new abortion law through the parliament some time ago, but due to one of the biggest protests in Polish history, organized by women’s rights organizations, he had to back down. He could not risk mass riots and protests.
So he had to wait for the right moment. And the moment is now: Poland is struggling with the second wave of COVID pandemics, every day government introduces new restrictions, the numbers of infections skyrocketed people are afraid. This is the time to act. Especially, that the extreme right and ultra-Catholic organizations, that has a huge influence on PiS, were getting impatient.
And here where the importance of having functioning democratic institution becomes visible. Because usual way to carry through new bills in Poland is to work it in parliamentary commissions, then put into the plenary for discussion and vote. Then to go to Senate, who’s role is to scrutinize the proposed law and introduce amendments when required. The bill then can end up back in Sejm or be presented to the president for a signature. He can sign it, veto it (and then the lower chamber of parliament, the Sejm, needs to gather majority of 3/5 to overturn it) or send it to Constitutional Tribunal for it to decide if it is not unconstitutional.
The only thing is, while Kaczyński still controls the majority in Sejm and president, after recent election he is one vote short in Senate. So his well-oiled machine, when the legal bills were simply rammed through parliament with pure force of his majority only to be signed by the president almost instantly is now broken. He still could win, but this time it would not be by brute force, but by observing normal parliamentary procedures. He cannot be arsed to do such things.
And he does not have to. Because while this whole procedure needs to be used to introduce a new laws, one needs only Constitutional Tribunal to overthrow the existing ones. And Kaczyński controls the Tribunal – with the illegally elected judges sworn in at night by president Duda at the beginning of the Kaczyński’s rule, and with those, who were replaced at the end of their terms by PiS nominatees, or even PiS politicians, the institution is now simply Kaczyński’s puppet theatre. Some call it “Prostitutional Tribunal”, as it’s whole role is nowadays to rubber-stamp Kaczyński’s decisions.
And so, despite the fact, that 83% of Poles want for the abortion law to remain the same, or to be even more relaxed, today triumphant was Kaja Godek: a radical anti-Gay and pro-abortion-ban activist from a fringe organization, who when put herself under democratic scrutiny by starting in European elections received less than 2% votes.
This is what you get when you don’t defend your democracy when you still can. The only thing left to you is to get out to the streets.
And so out people went. Despite strict COVID regulations, a spontaneous crowd of over a 1000 people gathered outside Constitutional Tribunal, only to march to PiS headquarters and ultimately to Kaczyński’s home (it is symbolic, isn’t it?) where hundreds of police officers awaits them. As I write those words, first arrest have been made…
Some of my female friends told me five years ago that “I should not worry about Constitutional Tribunal, because it does not matter for a normal person”. I wonder if they still think so…
Written for Britské Listy
Picture: Titi Nicola CC 4.0
