Donald Tusk won’t make abortion on demand legal in Poland unless he violates the rule of law

By Olivier Bault
26 Min Read

Can we be sure that abortion on demand up to the 12th week of pregnancy will become legal in Poland after a coalition government is formed under Donald Tusk’s leadership, as he promised during the campaign?

Indeed, in 2021, the Civic Platform (PO), Donald Tusk’s party, said it would now officially support legalizing abortion on demand, something it had been against all along. We also remember Tusk’s declaration, when he said that his party’s electoral lists would not include any politician who does not support the demand to legalize abortion up to the 12th week of pregnancy.

On the other hand, you cannot make abortion legal in Poland without amending the Constitution, as it defends the right to life. And amending the Constitution requires a two-thirds vote in parliament, with President Andrzej Duda’s signature being needed as well. In the current situation, this type of constitutional amendment is completely out of reach for the emerging government coalition.

However, there are various paths that the PO and its coalition partners may want to use to circumvent the law and introduce legal abortion up to the 12th week of pregnancy anyway. Whether this will be the case remains to be seen.

One of those paths, of which they have been talking openly, would be to simply refuse to acknowledge the Constitutional Tribunal’s late 2020 ruling that outlawed abortion in cases of severe, irreversible defects or diseases in unborn children. Admittedly, this would mean a return to the earlier legal situation, in which one could get rid of, for example, a child with Down syndrome, and it would still not be possible to abort a baby in Poland in most cases.

Yes, this is one of the paths that I think Tusk’s PO will try to pursue: questioning all the Constitutional Tribunal rulings that have been issued during these last years. This proposal already has the support, to some extent, of liberal and left-wing MPs, as well as of so-called experts working within their political camp.

There have even been proposals to invalidate all Constitutional Tribunal’s decisions since Judge Julia Przyłębska became its president in late 2016 by a resolution of the Sejm [the lower house of the Polish parliament, ed.]. Of course, we know very well that under Polish law this would be an aberration and an action that is incompatible with the Polish legal order.

However, given the very high expectations from Brussels to introduce legal abortion in Poland, politicians of the Polish liberal camp may use the pressure and support from Brussels to introduce legal abortion in Poland. They can, for example, use the argument of the need to implement EU law in Poland. I think they will try many different legal tricks to legalize abortion on demand.

I think that, in a way, this social revolution that is to take place in Poland is the political cost that has to be paid for Donald Tusk receiving such strong support from Brussels in the election campaign.

However, in 2016, when there was a sharp conflict between the new parliamentary majority and Beata Szydło’s government on the one hand and the Constitutional Tribunal on the other, Brussels insisted that in the name of the rule of law Poland should duly implement all decisions of its constitutional court. That it did not do so in 2016 is seen as the ruling right-wing coalition´s original sin that started all those alleged attacks on the rule of law, of which Poland has been accused for the past eight years.  

In 1997, the Polish Constitutional Tribunal ruled that under the Polish Constitution, there can be no such thing as abortion on demand: the Constitution guarantees the right to life of every human being, and therefore even in the womb a human being must enjoy some level of protection of this right. At the time, the issue at stake was a provision allowing abortion for socio-economic reasons, which the leftist post-communist coalition had added to the 1993 law on family planning, protection of the human fetus, and the conditions for permissible abortion. This provision was appealed to the Constitutional Tribunal and overturned.

Do you think that the emerging liberal-left coalition and Brussels may decide that the introduction of abortion in Poland is more important than the rule of law after all and that even a Constitutional Tribunal’s ruling of 26 years ago can be ignored if it stands in the way of legalizing abortion on demand?

I do think so, yes.

We remember, of course, that 1997 ruling stating that abortion for economic reasons cannot be legal in Poland. The Constitution does not allow this. The Constitutional Tribunal at the time was headed by Professor Andrzej Zoll, who today is associated with the liberal camp.

Under Polish law, judgments of the Constitutional Tribunal cannot be invalidated. If this were to happen, it would be something really bizarre, and it would be completely outrageous.

I fear, however, that Donald Tusk and Brussels will want to legalize abortion at all costs and will do so through extra-legal methods.

They may, for example, want to set some kind of precedent. Brussels may press on, saying that this is necessary to implement EU law, that these are European standards, and at some point, there may be a hospital where doctors will perform such an abortion up to the 12th week of pregnancy, breaking the law. And then the state apparatus managed by Donald Tusk may not hold accountable the doctors who have performed this abortion and the hospital where the law has been broken. This will create an extra-legal precedent, which, at least during the period of Donald Tusk’s government, will perhaps occur to some extent.

There have already been some announcements going in this direction. A member of the New Left wrote about how, after the opposition declared the formation of a government, one hospital decided that it would perform abortions, disregarding the 2020 Tribunal Court ruling. Whether this is true, or just empty talk and leftist propaganda, I don’t know, but it is already appearing in the public debate.

How is it that Donald Tusk and his Civic Platform have so radically changed their views on abortion?

This is indeed surprising. The roots of the Civic Platform (PO) were fairly conservative. This left turn has actually occurred in recent years. I think we should link this to the way Donald Tusk has positioned himself in the face of European politics, vis-à-vis Brussels and the European Union, as the frontman of the social revolution in our part of the world.

It is the European Union that is pushing very hard on the issue of liberalizing the law on civil unions and so-called “gay marriage” while promoting abortion as a supposed human right.

Since Donald Tusk has made the people in Brussels his allies, I think it was natural for him to also change his public views in some way. We don’t know what his private views on abortion used to be and what they are today. But I think his public views are what matters most because it is about managing a certain type of public mood.

It was in 2020 that the women’s strike protests emerged, gathering lots of people. These were massive protests [against the Constitutional Tribunal’s ruling banning abortion due to a severe and incurable defect or illness of the unborn child, ed.]. I think Donald Tusk simply wanted to take over at least part of the electorate that was against the Constitutional Tribunal’s ruling and supported abortion to a greater or lesser extent.  Hence Tusk’s turn to the left.

What kind of attitude should we expect from the Third Way alliance, which is supposed to be part of this new coalition alongside the Civic Coalition alliance led by Tusk and the New Left alliance? Third Way is a coalition of Szymon Holownia’s Poland 2050 party and the agrarian party PSL. These are parties that tend to portray themselves as moderately conservative. PSL in particular has long said it is a Christian democratic party that opposes legalizing abortion on demand. In this situation, Third Way proposes that a referendum on abortion be held. Do you see this as something positive?

A referendum would be a very bad thing for a number of reasons. The most important of these is simply the fact that as the Polish state, as Poles, we cannot accept to decide in a referendum whether someone will be allowed to be born or not. Such a question is, from a humanistic, philosophical perspective, simply impossible to ask. Such important issues as the right to life cannot be decided by popular vote.

Third Way is an alliance of two completely separate parties that look at the issue of abortion in different ways. Let’s not forget that in Third Way there are a relatively large number of politicians from Tusk’s PO who for some reason have changed political colors recently.

I don’t expect any pro-life stance from the politicians of Szymon Holownia’s party. Szymon Holownia himself, even though he has repeatedly said he is a Catholic, albeit with a left-liberal twist, today supports the idea of reinstating abortion on eugenic grounds and organizing a nationwide referendum about abortion on demand. PSL leader Wladyslaw Kosiniak-Kamysz has a similar position.

As for the PSL party, there have also been statements by an important PSL politician, former minister Marek Sawicki, who overtly says he will not support a law that would liberalize abortion. There are certainly more such politicians in PSL, like former Minister Marek Biernacki or Senator Jan Filip Libicki, who has repeatedly said that he is a politician who always votes pro-life, which he has also proven in the way he votes.

So PSL can certainly be the force that will block the possibility of passing laws liberalizing abortion in Poland. But I don’t expect the same attitude from Szymon Holownia’s party.

We also know from the Irish referendum on abortion that in the campaign leading up to such a referendum, the fight is not on equal terms. We also know from documents once leaked from George Soros’ Open Society Foundations that after Ireland, Poland was to be the next country where Soros’ foundations intended to focus their efforts on making abortion legal.  So, just as in Ireland in 2018, one can expect that in the case of a referendum in Poland, the pro-abortion side will enjoy resources far greater than the pro-life side for campaigning.

It is true, and it is certainly also very dangerous because of the propaganda, the manipulations, and the negative social campaign that the liberal side would prepare to boost support for the right to kill unborn children.

As a result of such a campaign, which would certainly be very emotional, and as a result of various pro-abortion materials influencing public opinion, we could, as a Polish society, undergo an irreversible change, a very dangerous one, with fatal consequences for many thousands, and in the future millions of children who could be aborted.

As a result of such an irresponsible decision, we would lead to some kind of social revolution that would go against many millions of Poles. Indeed, I am convinced that in such a referendum, the differences in the outcome of the vote would be relatively small, as about half of all Poles would certainly side with the right to life.

Current Polish law largely secures the right to life and guarantees this right except, of course, in two cases [when there is a danger to the life or health of a pregnant woman or the pregnancy results from rape, ed.].

This state of affairs is, in a way, a measure of our civilization.

As recently as 10 years ago, opinion polls showed that three-quarters of Poles were against allowing abortion on demand. Today you are talking about half of Poles, and indeed that is what the most recent surveys usually show. What has happened that Poles are less pro-life than they were 10 years ago?

This is a consequence of the worldwide revolution in worldview, with this liberal, leftist turn, which we see not only in Poland but in all the countries of the European Union.

Remember that France was much more Catholic just a few decades ago. The same is true of Italy and Spain, and the U.K., too, was more conservative. Today, public opinion in these countries is much more liberal. Catholic Ireland eventually legalized gay marriage. Malta, which was a Catholic country until recently, legalized gay marriage a few years ago.

We are facing a very powerful revolutionary wave, as a result of which European public opinion is unfortunately becoming more liberal. Maybe this is due to this revolution being so well financed, giving it such financial clout and a powerful ability to influence public opinion.

Rich financiers, often from the United States, are behind this revolution. In Poland, we also succumb to the influence, manipulation, and suggestions that come from all sorts of social campaigns funded by global revolutionaries.

Another factor could be that religious practice in Poland has been declining slowly but steadily…

Yes, this is true. The Catholic Church has somewhat less influence on public opinion today, with fewer people attending church regularly.

The influence of the Church has always been this foundation that has given Poles a kind of philosophical outlook on the abortion issue. The Church has kept reminding us that everyone has a right to life. This was very strongly emphasized by St. John Paul II in the encyclical Evangelium Vitae. Today, the social situation has changed somewhat, and the Church is not listened to in this area and is no longer an authority for many people. This is very painful, but such is the reality.

Hasn’t there been neglect and carelessness on the part of the Law and Justice party in this regard? I have in mind, for example, an interview of PiS leader Jaroslaw Kaczynski in the Wprost weekly in 2021, but also other statements made by PiS politicians. Kaczynski said that the 2020 ruling further restricting abortion should not be that problematic for Polish women, as any person of average intelligence can easily get an abortion abroad. Pro-abortion organizations that have advertised and continue to advertise such services openly are not prosecuted.

The public sentiment after the Constitutional Tribunal’s ruling was very radical, and I think the United Right government coalition led by Law and Justice didn’t really know what to do. Bringing pro-life supporters to the streets in a counter-demonstration was impossible at the time, if only because of the restrictions related to COVID-19. It is also likely that such demonstrations would not have been as numerous as the women’s strike protests.

PiS failed to manage public emotions after those protests. And I believe it was a good time to try and convince at least this so-called center of public opinion. I also did not notice any particular support for the National March for Life and Family, which we organized in September 2021. The march was numerous, but less so than the earlier massive pro-abortion protests.

It is worth remembering that the women’s strike protests were extremely vulgar and very radical in their message, and I think it was largely repulsive to much of the public, especially to those people commonly referred to as the center.

Among other things, the United Right should have organized pro-life, pro-family, pro-maternity, and pro-fatherhood social campaigns. It had the perfect tools to carry out such campaigns, big government money, and the entire state apparatus. Such campaigns could promote parenting and thinking of children as a kind of gift, a blessing. They could have contrasted with the vulgar protests by abortion supporters, arguing that everyone has a right to life.

This was not done, and in fact, the only response from the broader Catholic or right-wing side was a series of billboards that were displayed all over Poland, but this was a private initiative of a very rich man with pro-life views. In addition to this action, we ourselves, together with partners, organized the National March for Life and Family, as we do every year.

These were the only responses to the very vulgar women’s strike protests.

Organizers of the Women’s Strike speak primarily about those few pregnancies with a diagnosis of a lethal defect in the unborn child. After the 2020 Constitutional Tribunal’s ruling, abortions can no longer be performed legally in Poland even in such cases. They are silent, of course, about the fact that the Constitutional Tribunal’s ruling applied primarily to children with life-compatible abnormalities, such as Down syndrome. Such cases are much more common, and children with Down syndrome were the most frequently aborted in Polish hospitals until 2020.

However, an unborn child can have a lethal defect, and, during eight years of PiS rule, nothing was done to make it mandatory for doctors to at least inform the parents of such a child about the existence of perinatal and neonatal palliative care as an alternative to abortion.  Even today, after the Constitutional Tribunal’s ruling, doctors are not obliged to do so, and many do indeed fail to give proper information to the parents in such cases.

It seems to me too that there has been no change in this regard. It is worth noting that there are many such perinatal palliative care centers in Poland, and they provide good care. They are such a truly special place, where children born with lethal defects can live out their time with dignity for a few days and sometimes even a few months. It is the perfect time for parents to get to know their children, show them their love, and then say goodbye with dignity.

A good response to the women’s strike protests would have been to promote such places. Unfortunately, there was rather no form of support or promotion of perinatal palliative hospices. There was probably no political decision to address this issue and to deal with it. I have the impression that the United Right wanted to wait out that time when the women’s strike protests were taking place in Poland. When public emotions subsided, the United Right abandoned the topic and did not want to deal with it in any way, fearing that these women’s strike protests might return if the governing coalition led by Law and Justice pursued the abortion issue further.

We were talking about those paths to legalizing abortion that the new coalition might take. It seems to me that they can simply further a plan developed in the health ministry during the government of Mateusz Morawiecki. This plan is to extend, by regulation, the interpretation of the abortion law’s clause concerning the existence of a threat to women’s health to cover mental health concerns. Other countries’ experience tells us that this always means the de facto legalization of abortion on demand.

This is indeed a very dangerous situation. And indeed, the initiator of this plan is the former minister of health in the United Right government, Adam Niedzielski. It was he who initiated the work of a team on this project, which is to try to introduce an interpretation of the current regulations in such a way that the existence of a threat to the life or health of the mother, when Polish law allows abortion, will be extended to include psychological or mental issues.

It seems to me that this may have been a political decision to make Law and Justice regain some votes from women who disagreed with the Constitutional Tribunal’s 2020 ruling and stopped supporting the government at the time.

However, the proposed interpretation of the law, according to the draft provisions that are already known, would mean far-reaching changes in the protection of life.

This liberal interpretation of the law indicates that it would only take two doctors, who would have to determine that pregnancy poses a threat to a woman’s mental health, for a conceived child to be legally killed.

I agree with you that such an interpretation could lead to the de facto introduction of abortion on demand. It is not difficult in Poland to find liberal pro-abortion doctors who won’t have any difficulty confirming that there is a threat to the mental health of a pregnant woman.

Worse still, if it comes into effect, this interpretation will entail legalizing access to abortion in principle without any time limit.

However, I trust that this will not happen, as the lack of actual protection of the unborn child would in any case violate the Polish Constitution and its interpretation in force since the late 1990s.

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