EU parliament’s latest resolution on Poland’s abortion laws highlights threat of rule-of-law mechanism

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The European Parliament’s response to the abortion battle in Poland foreshadows what the EU could do if it gains the power to tie the European budget to the rule-of-law mechanism. Poland and Hungary have defended against rule-of-law sanctions with their veto , but if the EU succeeds, then both countries face the threat of Brussels dictating policy for their governments on immigration, traditional values, and judicial reform
“The [rule-of-law] mechanism is neutral and applies to everybody in the same way. Everybody who respects the rule of law has nothing to fear of this mechanism,” Manfred Weber, the German head of the European People’s Party (EPP) group in the European Parliament, said when Poland and Hungary threatened to veto the EU budget and recovery plan.
Yet, in the “ European Parliament resolution of Nov. 26, 2020 on the de facto ban on the right to abortion in Poland ”, the same Weber and a majority of his EPP group called on the Council and the Commission to use the not-yet-existing rule-of-law mechanism and to withhold funds from the 2021-27 budget for Poland as long as the homeland of Saint John Paul II will not liberalize its abortion law.
The European Parliament “welcomes the provisional agreement of 5 November 2020 on legislation establishing a mechanism that would allow the suspension of budget payments to a Member State violating the rule of law; urges the Commission to act with determination on the recently agreed conditionality for the future multiannual financial framework for 2021-2027”, the resolution says underneath accusations of rule of law violations by Poland because of a lack of access to legal abortion. AP Photo/Jean-Francois Badias Germany’s Ursula von der Leyen shakes hands with compatriot Manfred Weber after delivering her speech at the European Parliament in Strasbourg, eastern France, “The European Parliament and also my group will not retreat one millimeter,” Weber said on Nov. 30 about that mechanism, which will, if eventually adopted, condition the payment by the Commission of funds from the 2021-27 budget and recovery plan to an evaluation by the Commission and a majority in the Council of a member state’s compliance with the rule of law and values mentioned in Article 2 of the Treaty of the European Union.
“From a legal point of view, it is clear that the EU has no competence over the right to abortion in any Member State. Legislation in this area is left to the discretion of the Member State concerned,” rightly pointed Equality Commissioner Helena Dalli from Malta at the beginning of a European Parliament debate concerning abortion and the rule of law in Poland that was held on Nov. 25.
However, a majority in the European Parliament could not care less about the legal point of view. As one can read in the Nov. 26 resolution, it “calls on the Commission to support Member States in guaranteeing universal access to sexual and reproductive health services, including abortion; urges the Commission to guarantee SRHR by including abortion rights in the next EU Health Strategy.” Olivier Hoslet, Pool via AP European Commissioner for Equality Helena Dalli speaks during a debate on abortion rights in Poland during a plenary session at the European Parliament in Brussels, Wednesday, Nov. 25, 2020. Yes, Mr. Weber and his leftist friends are demanding that the European Commission violate the rule of law and exceed its competencies given to it by the European treaties in order to force the liberalization of abortion on the whole EU. They also demand that the European Council “address this matter and other allegations of violations of fundamental rights in Poland by expanding the scope of its current hearings on the situation in Poland” within the framework of the ongoing Article 7 proceedings, and also, as said before, that the Commission use the new rule of law mechanism for that same purpose.
To give its demands the appearance of legality, in the same resolution, the European Parliament decrees that the Polish Constitutional Court has no legitimacy to interpret the Polish Constitution and that the European Commission should take on its role and directly enforce the Polish Constitution from Brussels. With such claims, the authors of the European Parliament resolution and the 455 MEPs who voted for it are showing not only their contempt for the rule of law but also their ignorance of the Polish Constitution and earlier rulings issued by the Polish Constitutional Court, long before it was deemed “illegitimate” and “not independent” in Brussels. As a matter of fact, the Constitutional Court’s decision of Oct. 22 was predictable in the light of those elements.
EU parliament uses questionable statistics on abortion in Poland
A lot could also be said about the European Parliament’s bogus estimate of 200,000 women terminating their pregnancies each year in Poland. This “estimate” comes from an old report by a Polish feminist organization, the Federation for Women and Family Planning, where it was offered as a very loose estimate not supported with any hard data.
There is also ample evidence that refutes such an inflated estimate on the number of abortion in Poland. In 1997, when a post-communist leftist parliamentary majority modified the 1993 abortion law to make abortion on-demand legal again, Polish women could legally abort their babies for free in hospitals, as was the case until 1993. That situation lasted for almost a year until the Polish Constitutional Court decided that such a possibility violated the right to life protected by the Polish Constitution. During that time, there were 3,047 abortions in Polish hospitals, including 2,524 for “socio-economic” motives, i.e. on-demand.
For years, opinion polls have also shown that over three-quarters of Poles are opposed to abortion on-demand. Nonetheless, according to MEPs, there are more abortions in Catholic Poland than in most European countries where abortion is legal, free, and presented as “normal”, at least according to the statistics they are citing.
It is important to note that the European Parliament’s pro-abortion resolution refers back to the European Parliament’s “ resolution of Nov. 28, 2019 on the EU’s accession to the Istanbul Convention and other measures to “combat gender-based violence”. Indeed, in that earlier resolution, the European Parliament considered that restrictive abortion laws “violate the human rights of women” in the light of the Istanbul Convention, although that convention of the Council of Europe only condemns forced abortions and makes no mention of legal abortion as a right for women. However, there are other reasons why Central European states, including Poland, have had reservations about the Istanbul Convention.
EU law does not require member states to ratify the Istanbul Convention and several have in fact refused to do so, including the United Kingdom before it left the EU. However, in its “resolution of 26 November 2020 on the de facto ban on the right to abortion in Poland”, the European Parliament “calls on the Council to urgently conclude the EU ratification of the Istanbul Convention; strongly condemns the attempts in some Member States to revoke measures already taken in implementing the Convention and in combating gender-based violence; calls on the Commission to submit a proposal to add gender-based violence to the list of EU crimes”.
The Oct. 22 ruling of the Polish Constitutional Court means an effective ban on abortions when “prenatal examinations or other medical data indicate a high probability of serious and irreversible disability of the fetus or an incurable life-threatening disease.” Abortion in Poland will remain legal when a pregnancy threatens the life or health of the child’s mother and when it is the result of rape.
A copy of Poland’s constitution. In Commissioner Helena Dalli’s home country of Malta, the abortion law is so restrictive that all forms of abortion are illegal, but there has been no such European Parliament resolution about Malta. So, not only is the European Parliament showing once more very little care for the rule of law at the EU level, but — contrary to Weber’s assertion — it is not neutral, and its understanding of the rule of law does not apply to everybody in the same way.
This is not only true with regard to abortion either. Last January, former European Parliament President Antonio Tajani finally realized this fact himself. Together with his Italian fellow MEPs from center-right Forza Italia (who are members of the EPP), he refused to vote in favor of a resolution on the rule of law in Hungary.
“For me, it is absolutely clear that we should apply the same rules to all member states. Why are there no rule of law proceedings against Malta? Representatives of the Maltese government were proven to have been involved in the murder of journalist Daphne Caruana Galizia,” Tajani said . “Hungary faced criticism because of the issue of the Central European University, but that is not the same as murder.”
If anything, the European Parliament’s history of extraordinary contempt for the rule of law and its early appeal to force Poland to liberalize abortion by making use of the new rule of law mechanism should convince Polish and Hungarian leaders to hold their veto until other EU countries and MEPs agree to abandon this mechanism altogether.

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