First published on the website of the Heinrich Böll Foundation in Warsaw.
The hell of women is in full swing” is one of the most pertinent comments on the decision of the governmentally controlled Polish Constitutional Court to further restrict the anyway very limited public access of women to abortions in Poland. Although the measure had been part of the public discourse for years, the timing for its implementation comes partly as a surprise. What does this tell us about the further prospects for the rule of the Law and Justice party?
October 22nd, 2020, was a strange day. In a week in which we learned from the press that, maybe, under some circumstances, pope Francis, as a private person, would be ready to support same sex partnerships, Poland furthermore restricts its anyway already harsh abortion laws. By the decision taken on what could be called “black Thursday” by the Constitutional Court, widely steered directly by the ruling party and its boss, the option of interrupting pregnancy in the case of irreversible or lethal damages of the fetus has been declared unconstitutional. Thereby, the only remaining options from the formerly existing “Abortion Compromise” of the year 1993, are now a direct threat to the mother’s health or life (possible until the child is able to survive independently outside the mother’s womb) and a criminal act (until the 12th week). With the now delegalized option having been the predominant (and almost exclusive) reason for performed public abortions in Poland, this step means de facto an almost total ban.
Observers should be surprised and not surprised at the same time. Not surprised, because for years now, since PiS came to power in 2015, this has been a real option. There were at least two attempts to introduce a total ban through a civic motion to parliament. Both were fought off due to public protests, but most probably also because it was not in the interest of Jarosław Kaczyński to make use of this “atomic” option. To keep this bargaining card for a time of real need. It is “atomic”, because up to three quarters of the Polish public are categorically against introducing even harsher rules concerning sexual and reproductive rights, and growing numbers in the last years actually showed readiness to liberalize the existing laws and introduce sexual education. With PiS winning elections with approx. a 40% support of the electorate, this means this decision is dividing his own political camp (although rather not leaders, only supporters).
However, now apparently it is in his interest. In other words, the dark hour has finally come. Kaczyński is under growing pressure from three sides. First is a contextual one: the corona management of the government, from the perspective of the public, is a total disaster. With its grandiose behaviour in spring and the summer, all related to having to win the presidential elections at any cost, PiS has enormously compromised itself. The virus is immune against propaganda of the state television. This as such is not a problem for the electorate, but the fact that the governing party did not deliver in containing the virus (both infection rates and death toll have been recently rising dramatically for Polish standards) while taking enormous debts and ruining many small entrepreneurs by curbing economic and civic liberties goes against the sense of many “a common man” in Poland. Protests against this have not been as visible and big as in Germany, but defiance of rules is obvious all over the streets, and much more so, in social media (it reaches even me in my green bubble on Facebook, and strongly so).
Second is one of political calculation: with the Confederation Party (Konfederacja), which is at the same time ultra-rightwing and economically ultra-liberal, there is an opposition growing in the country and the parliament that the leader of PiS cannot control anymore with his usual tactics of divide and conquer. Konfederacja, which is consistently overtaking the Left Party as the third strongest political option in the polls, has always been dangerously strong among the youth; but since the presidential elections where they had an extremely appealing and smart young candidate, Krzysztof Bosak, now they have begun to gain support among entrepreneurs. Konfederacja is presenting itself as the only real “catholic” party in the parliament, and what better issue than abortion laws for PiS to underline its Christian allegiance?
The third reason is a biographical one: inevitably, Kaczyński is approaching the end of his political life. With a few of this, two things seem to be important for him – to leave a legacy as such, and to make sure that his “political oeuvre” of turning Poland into “a sovereign state” which is both economically strong and civilizationally unscathed by “Western decadence” is not captured by “the wrong man”. This “wrong man” is Zbigniew Ziobro, the minister of justice and procurator general in the same person, the executor of all anti-rule-of-law measures of the government. Ziobro, once a promising young “dolphin” member of PiS expelled for opposing Kaczyński after the 2010 plane crash in Smolensk, is for now only the head a small splinter party in coalition with PiS. But at some point in the future Jarosław Kaczyński’s political career will end, and then Ziobro’s aim will be to politically defeat Kaczyński’s nominee PM Mateusz Morawiecki and take over the leadership of PiS, which is why he is trying to present himself as the real hardliner not only in judicial affairs, but in sociopolitical issues such as women’s rights and LGBTIQ as well. Right after the presidential elections were won, he openly called for leaving the “ideological” Istanbul Convention.
In order to control Ziobro and get a grip on the crisis management in the government, probably against his own intentions and after weeks of a political soap opera in the ruling camp, in October 2020 Kaczyński finally had to enter the government himself (in the rank of a vice-premier responsible for security). Many commentators agree that the decision by the Constitutional Court was most probably part of a larger bargain between Kaczyński and Ziobro, in order to stop battles on other ideological fields. What will happen to the Istanbul Convention remains to be seen (I would be cautiously optimistic to say it will be untouched for now, with the rule of law debate in the EU too much in full swing). Whereas in LGBTIQ questions, PiS wants to regain the lead from Ziobro, therefore Kaczyński installed one of the most outspoken homophobes of his party, Przemysław Czarnek, as head of the newly combined ministry of education and science. Just in one week’s time, we will have the next “rainbow Friday” in schools here - a lot of trouble can be expected, as a form of retaliation, especially after PiS has been painfully reprimanded for its homophobe propaganda in a joint public letter signed by several dozens of foreign ambassadors under the lead of the US ambassador a few weeks ago.
To sum up, what is to be expected for the next months and years? In the short run, Kaczyński is probably convinced Corona will actually help him to break any protests, might they really take a bigger size and more lasting form (leaders of the feminist “black protest” movement try to mobilize under the slogan “This is War”). Already in the first night, after spontaneous street protests broke out that most probably will spread and continue, although their size, form and intensity is currently difficult to foresee, the police was obviously very well prepared to crack down on any kind of wider street protests, but also to politically use these pictures as material to show what “irresponsible behaviour” “feminism” and “progressiveness” leads to in times of pandemic. Thereby, he is silently taking to some of the tactics of early (not today’s!) Lukashenka’s rule. During the pandemic so unsuccessfully managed by the government, people are increasingly afraid of their health and livelihoods and therefore will “get used” to the new situation, as they got used to the unwanted “abortion compromise” 25 years ago. Whether he will be successful with this, remains to be seen. His party will in any case try to bolster public support by measures of family and health politics directed towards women who will have to give birth to children with serious disabilities (which have a high risk of falling into poverty, social and economic exclusion).
However, and much more importantly, Jarosław Kaczyński has finally succeeded in imposing on Poland his style of ruling. From Oct 22nd 2020 onwards, it has become impossible for any future government, of whatever political colours, not to use Kaczyński’s methods. In order for the liberal, left and green progressive forces to change these policies, the only possible way is going to be a complete system’s change, first by winning and securing an absolute majority in future parliamentary elections, then to start a constitutional process of whatever kind and delegalize the existing Constitutional Court steered directly from the headquarters of PiS, replacing it by a new organ with new judges not following Kaczyński’s line. One way or the other, they will have to get their hands dirty by taking unconstitutional moves, claiming that this way to defend the 1997 constitution from PiS, and also, in ideological fervor, by residing to various kinds of propaganda to legitimize such strategies against the accusations then for sure being made by the now ruling camp. One way of the other, the civilizational divide is growing.