Poland aborts freedom

By Maciej Kisilowski

If Americans think that Donald Trump's call to jail women who have abortions can't ever become law, they should consider the case of Poland.

A draconian new bill, introduced by radical pro-life groups and officially supported by the leadership of the ruling Law and Justice (PiS) party, would send women to prison for up to five years for "prenatal murder."

Since last fall, when the right-wing PiS took power, the country's democratic backsliding has caused increasing alarm, both at home and abroad. Perhaps the most worrying move by the new government has been its methodical dismantling of the Constitutional Court.

Despite this, the response of US President Barack Obama's administration has so far been muted. British Prime Minister David Cameron has even openly defended Poland's illiberal leaders.

But Obama, Cameron, and other Western leaders now have nine million reasons to reconsider their approach - one reason for each Polish woman of reproductive age, for whom the lack of effective constitutional checks and balances is no longer an abstract political problem. Under the proposed Polish law, the termination of a pregnancy from the moment of conception would be deemed murder.

There are no exceptions to this, other than "averting a direct threat" to the mother's life. An 11-year-old girl raped by a relative will have to carry the pregnancy to term, unless doctors (risking prison) determine that the pregnancy will kill her imminently.

A woman will have to carry an ectopic pregnancy, or a fetus so damaged that it cannot live, until complications become severe enough that her life is "directly" in danger. The day-after pill and in vitro fertilization will be criminalized.

Aiding and abetting "prenatal murder" will be punished just like the "murder" itself. Anyone in Poland who provides information about or makes arrangements for a legal abortion abroad may be charged as an accessory.

And that is not all. The law provides for a prison term of up to three years for "negligent prenatal homicide." Although the current draft excludes the mother from punishment, the way the bill is structured suggests that the exception may very well be removed from the final version. In that case, a miscarriage could expose a woman to a murder charge.

All of this may sound incredible in a country that is a member of the European Union and NATO. But the law's looming enactment underscores the consequences of Western passivity in the face of Poland's constitutional crisis.

Like many of today's right-wing parties, including the Republicans in the United States, PiS is an amalgam of mainstream conservatives and extremists who reject the very foundations of Western-style democracy.

And it is now clear that the only way to keep the radicals in check is to impose costs for their illiberal, anti-democratic behavior.

Vocal opposition from moderate voters is obviously one such cost, though the radical right may be indifferent to it. If extremists can use the brute force of a parliamentary majority to legislate their agenda, they will do so - and worry later about how to deal, one way or another, with their opponents.

So it is vital, in Poland and elsewhere, that constitutional courts are able to do their jobs. Like the US Supreme Court, Poland's Constitutional Court can nullify legislation that infringes on the individual rights enshrined in the Polish constitution.

Despite the Court's traditional conservatism on social issues, it would surely reject the key provisions of the proposed abortion law - a prospect that would empower PiS moderates to rein in their extremist colleagues. After all, if a proposed law cannot survive judicial review, why pick a divisive political fight in the first place?

Unfortunately, PiS's efforts to neuter the Constitutional Court have removed this essential brake on extremism. President Andrzej Duda has refused to seat legally selected judges. The PiS-dominated parliament has introduced severe procedural constraints on the court's operations. And the government refuses even to publish the Court's decisions in the official law journal, which means that the rulings cannot take effect.

The PiS's effort to maximize its power has turned the entire party into a hostage of its most radical elements. The abortion bill was not introduced by the PiS leadership, but by a host of radical advocacy groups associated with PiS backbench MPs.

PiS leader Jarosław Kaczyński reportedly pressured the Catholic Church not to pursue the issue. But once the bill was presented, he had no choice, he claims, but to back it. "I am a Catholic, and the issue is obvious for me," he said.

Poland's abortion bill may be just the beginning of a frightening stream of policy proposals aimed at dismantling basic human rights and rule-of-law protections in Poland. For Europe and the US, contesting such laws one by one represents a nearly impossible task, which is why both must redouble their efforts in support of full independence for the Constitutional Court. With that assured, and its decisions respected, the Court will be able to address real threats to human rights or democratic values posed by PiS legislation.

When radical right-wing fantasies are once again off-limits, PiS moderates may finally be able to refocus the party on the issues that most Poles want it to pursue: Improving the country's standard of living by ensuring its economic catch-up with the West.

Maciej Kisilowski is a professor of law and public management and Director of Initiative for Regulatory Innovation at Central European University.

Copyright: Project Syndicate, 2016.

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