Legal Abortions: Poland vs. the US

By: Reese Rosental Saporito

Edited by: John Perales Jr., Danielle Spitz, and Tess Ballis

A woman’s right to control her own body and her own reproductive choices have been up for debate in countries all across the world. Poland has some of the strongest abortion laws in the world, which have led to public outcry. In this essay, I will describe how we can view Poland as a case study  to anticipate the future of the United States’ abortion laws. Many similarities in policy and public responses can be seen in the United States and Poland: the actions of politicians, the interpretation of religion in politics, and politicians ignoring public opinion. The combination of these actions has led to protest and turmoil in Poland, and the United States will face the same level of unrest if the nation continues down its current path and further restricts abortion laws. I will argue that the current political climate in the U.S. could put us on a path leading to laws similar to Poland’s, and how restricting abortion on the same basis as Poland would breach the United States’ Constitution. This is revealed, in part, by Amy Coney Barrett’s recent appointment to the Supreme Court and her religion-based views on abortion.

As of October 28, 2020, decision K 1/20 made it illegal for women to have safe abortions in Poland.[1] Compared to other European countries, Poland already had strict laws regarding abortion access. Poland’s 1993 Act on Family Planning restricted legal abortions to only include cases in which the mother’s life was in danger, the fetus is irreversibly ill, or the pregnancy was the result of an illegal action such as rape.[2] This new development to Polish law will make access to abortions even more difficult, as abortion due to fetal congenital defects will be now considered unconstitutional. This ruling by the court has led to massive protests in the streets of Warsaw and across Poland. Protesters, most of whom are female, have faced brutal attacks by far-right members of Poland’s leading party, the Law and Justice Party. These attacks have been orchestrated by the far-right party leader Jarosław Kaczyński, who released a message calling for his supporters to protect churches from disruption by protestors. Instances like these have directly led to female protestors facing violence by Kaczyński’s far-right supporters.[3]  

This political decision has been perceived by reporters and civilians as an exploitation of religion and an abuse of power in the name of religion. Religion can often be used as a cover-up in politics, as ideologies can be used as an explanation for one’s view on a certain topic or policy, acting as a facade to hide their true beliefs. Religious doctrines are often employed by politicians as justifications for their policies in both Poland and the United States alike, despite the constitutional separation of church and state in America.[4] Polish politics in particular are heavily influenced by the Catholic Church, as they do not have a precedent of separating church and state.[5] Law and Justice Politicians in Poland have chosen to directly ignore the wishes of the people and outlaw abortions based on the ideology of the Catholic Church. Over one-third of the total population of Poland favored the loosening of abortion laws, but the political body in Poland tightened them regardless.[6] Polish Deputy Prime Minister Jarosław Kaczyński referred to the court’s abortion decision as “completely in line with the Polish constitution.”[7] However, Poland’s constitution “has its origins in the idea of inclusiveness and openness to many world views.”[8] Court decision K 1/20, shows that the intentions of Poland’s constitution writers are being ignored in practice.[9] Polish law also states that the Constitutional Court can only rule on abortion’s legal implications, not the moral assessment.[10] In addition to drawing on Catholic morals, Polish abortion law has utilized the textualist interpretation of Article 38 of the Constitution Article 38 gives legal protection to every human life. Despite not stating that life begins at conception, this article has been used to restrict abortion.[11]

Unlike Poland, the U.S. Constitution does not talk about conception but constitutional precedent protects freedom of religion. The U.S. also does not have a clause like Poland’s Article 38, which could be used to call the motives for attempting to ban abortion into question. The United States Senate’s recent confirmation of Justice Amy Coney Barrett to the Supreme Court could result in restricted abortion laws similar to Poland’s. Barrett has been outwardly vocal about her desire to overturn Roe v. Wade, the Supreme Court case protecting a woman’s right to choose to have an abortion.[12] Barrett has a history with anti-abortion groups and has signed public statements in opposition to abortion.[13] Similar to Kaczyński, Barrett makes her case on the basis of religion. Barrett signed an anti-abortion letter published in the South Bend Tribune when she was leaving church one day and stated, ”It was consistent with the views of my church, and it simply said we support the right to life from conception to natural death.”[14] However, the First Amendment to the Constitution of the United States ensures religious freedom.[15] Therefore, the separation of church and state comes into play by ensuring that the government does not make laws on the basis of or in favor of one religion.[16]

While this decision would look politically different in the U.S. than in Poland, similar reactions might result.  If Barrett brings a challenge to Roe v. Wade to the table based on her faith, this is a violation of the First Amendment and the separation of church and state. While her religious beliefs cannot be a reason to overturn the case, she may be more adamant about bringing it back to the table for reconsideration. Therefore, her religious beliefs would be indirectly resulting in a rediscussion about Roe v. Wade. Being that Barrett’s religious opinion on abortions has been vocalized, she could be held under public scrutiny no matter the basis for overturning Roe v. Wade. Public criticism for a lifetime-appointed Supreme Court Justice can be detrimental to their career and will effectively put every statement and decision under scrutiny as well. Since Barrett will be a justice for life, the public can scrutinize her on all fronts, but in the end, she will act how she pleases which will likely be against the well-being and opinions of the American public. However, if Roe v. Wade is effectively overturned, it is left to each state to decide to protect the right to choice, so we will likely not see a nation-wide abortion ban.[17] Roe v. Wade is high-risk for being overturned, as the Supreme Court now holds a 6-3 conservative majority.[18] If the decision to overturn Roe v. Wade becomes finalized, the U.S. will face the same social turmoil and protests as Poland. We have already seen the public protests and outcry regarding the defunding of Planned Parenthood, therefore it is safe to assume that we would see a round two if Roe v. Wade gets overturned.

Similar to Poland,  U.S. decisions regarding a woman’s right to choose are made and discussed by men in politics. As of 2019, 12% of Poland’s cabinet was made up of women.[19] In the US, as of 2019,  25% of the Senate and 23% of the House of Representatives were made up of women.[20] From a logical standpoint, the women in power should be the voices listened to regarding decisions about women’s reproductive rights, being that they are affected firsthand by these laws. However, since women make up such small portions of the government in both the U.S. and Poland, we see men making critical decisions about women’s bodies with little to no input from the affected groups. Most importantly, in governments like those of Poland and the United States, decisions should be made based on the opinion of the people. Both governments operate as some form of a republic, which leaves room for democracy. Therefore, to preserve rule of law, the people should have a say and be listened to when it comes to court cases and laws restricting the choices of the people, such as in the case of abortion. 

Poland is now in a state of turmoil and civic unrest caused by its government’s decision to tighten abortion laws. The combination of Deputy Prime Minister Kaczyński’s call to action and the disregard for public desire have resulted in massive protests for women’s rights. Poland’s abortion decisions have been heavily influenced by the Catholic Church, as they do not have a separation of church and state. However, this precedent is seen in the United States, so the basis for overturning Roe v. Wade goes against years of criterion set for lawmaking regarding religion. Justice Barrett, like Deputy Prime Minister Kaczyński, is against abortion on the grounds of religion, as shown by her Notre Dame law school article recounting that the Catholic Church deemed abortion as always immoral. Therefore Justice Barrett is in direct violation of the separation of church and state as well as the First Amendment. If the U.S. does not follow the ideals of democracy and listen to the people, the unrest and protest in Poland will be replicated on American soil. Overturning a Supreme Court case takes into consideration the opinions of six conservative justices and three liberal justices and is therefore not a democratic decision based on the opinions of the people. While the Supreme Court Justices are able to make decisions based on their ideologies, they are not to use political party preference in their decision making. However, it has been confirmed, by large amounts of academic research, that these ideologies reflect a Justice’s political philosophy and party.  The U.S. will face the same issues as Poland if it does not put politics back on a democratic track.  If the Supreme Court focuses on ways to amend and overturn previous decisions, the efficacy of the court to make decisions on new cases and new change could be tossed aside. Overturning a past case inhibits the court from progressing with the rest of the country to make new, necessary, and imperative legal changes.

notes:

1. “Polish president changes stance on abortion rights amid widespread protests.” 

2. “Abortion in Poland.”

3. Karolina Wigura, “Poland's Abortion Ban Is a Cynical Attempt to Exploit Religion by a Failing Leader.”

4. Wigura, “Poland’s Abortion Ban…”.

5. John Feffer, “Church and State in Poland.”

6. Wigura, “Poland’s Abortion Ban…”.

7. Laurenz Gehrke, “Polish PM Defends New Abortion Law as Women Take to Streets.” 

8. Gehrke, “Polish PM Defends…”.

9. Ewa Łętowska, “A Tragic Constitutional Court Judgment on Abortion.” 

10. Gehrke, “Polish PM Defends…”.

11. Łętowska, “A Tragic Constitutional…”.

12. Łętowska, “A Tragic Constitutional

13. Thompson-DeVeaux and Skelley, “What Amy Coney Barrett's Confirmation Could Mean For Roe v. Wade.” 

14. Emma Green, “No One Likes Amy Coney Barrett's Abortion Answer.”

15. “First Amendment.”

16. “Separation of Church and State.”

17. Jo Yurcaba, “Planned Parenthood's President On What Could Happen If Roe V. Wade Is 'Gutted'.”

18. Joan Biskupic, “Analysis: Amy Coney Barrett Joins the Supreme Court in Unprecedented Times.”

19. Adriana Sas, “Proportion of Women in Polish Cabinets 2019.”

20. “Women's Representation.”

Bibliography:

“Abortion in Poland.” Wikipedia. Wikimedia Foundation, December 17, 2020. https://en.wikipedia.org/wiki/Abortion_in_Poland. 

Ameliatd. “What Amy Coney Barrett's Confirmation Could Mean For Roe v. Wade.” FiveThirtyEight. FiveThirtyEight, October 15, 2020. https://fivethirtyeight.com/features/what-amy-coney-barretts-confirmation-could-mean-for-roe-v-wade/. 

Biskupic, Joan. “Analysis: Amy Coney Barrett Joins the Supreme Court in Unprecedented Times.” CNN. Cable News Network, October 27, 2020. https://www.cnn.com/2020/10/27/politics/amy-coney-barrett-joins-supreme-court-unprecedented/index.html. 

Ewa Łętowska. “A Tragic Constitutional Court Judgment on Abortion.” Verfassungsblog, November 12, 2020. https://verfassungsblog.de/a-tragic-constitutional-court-judgment-on-abortion/. 

Feffer, John. “Church and State in Poland.” HuffPost. HuffPost, May 18, 2016. https://www.huffpost.com/entry/church-and-state-in-poland_b_7306004. 

“First Amendment.” Legal Information Institute. Legal Information Institute. Accessed October 30, 2020. https://www.law.cornell.edu/constitution/first_amendment. 

Gehrke, Laurenz. “Polish PM Defends New Abortion Law as Women Take to Streets.” POLITICO. POLITICO, October 27, 2020. https://www.politico.eu/article/polish-pm-defends-new-abortion-law-as-protests-continue/.

Green, Emma. “No One Likes Amy Coney Barrett's Abortion Answer.” The Atlantic. Atlantic Media Company, October 14, 2020. https://www.theatlantic.com/politics/archive/2020/10/amy-coney-barrett-roe-v-wade/616702/. 

Kuisz, Jarosław, and Karolina Wigura. “Poland's Abortion Ban Is a Cynical Attempt to Exploit Religion by a Failing Leader | Karolina Wigura.” The Guardian. Guardian News and Media, October 28, 2020. https://www.theguardian.com/commentisfree/2020/oct/28/poland-abortion-ban-kaczynski-catholic-church-protests. 

The Associated Press“Polish President Changes Stance on Abortion Rights amid Widespread Protests.” NBCNews.com. NBCUniversal News Group, October 29, 2020. https://www.nbcnews.com/news/world/polish-president-changes-stance-abortion-rights-amid-widespread-protests-n1245227. 

Representation2020.com. “Women's Representation.” RepresentWomen. Accessed October 30, 2020. 

"Roe v. Wade." Oyez. Accessed October 29, 2020. https://www.oyez.org/cases/1971/70-18.

Sas, Adriana. “Proportion of Women in Polish Cabinets 2019.” Statista, October 19, 2020. https://www.statista.com/statistics/870500/proportion-of-women-in-polish-cabinets/. 

“Separation of Church and State.” Legal Information Institute. Legal Information Institute. Accessed October 30, 2020. https://www.law.cornell.edu/wex/separation_of_church_and_state. 

Yurcaba, Jo. “Planned Parenthood's President On What Could Happen If Roe V. Wade Is 'Gutted'.” Forbes. Forbes Magazine, October 28, 2020. https://www.forbes.com/sites/joyurcaba/2020/10/28/planned-parenthoods-president-on-what-could-happen-if-roe-v-wade-is-gutted/. 

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