A COMPARATIVE ANALYSIS OF ABORTION Roksana Gorgolewski LAW IN POLAND AND THE UNITED STATES

A Comparative Analysis of Abortion Law in Poland and the United States

Roksana Gorgolewski

Edited by Sabrina Ghashehbaba

A hotly contested political issue, abortion has been just as challenged in legal settings beyond the United States. Nations across the globe have had different methods for legislating abortion through time. Taking Poland and the United States as test cases for their similarly structured federal governments and majority prochoice constituents, these nations show vast differences in the methods to both criminalize and legalize abortion. This article aims to compare Poland and America’s complex abortion history, taking a unique focus of analyzing the Catholic Church’s impact on laws and jurisprudence as a result. The terminal conclusion finds that the Church’s impact in both nations has been grossly underrepresented in academia and supports the theory that Poland and the United States share similar legal histories regarding current legalization efforts against abortion.

I. INTRODUCTION

The state of abortion law in the United States and in Poland has never faced such complexities as it does right now. Supreme Court cases in the United States in the past eight years have been steadily limiting access to abortions - making them harder to obtain for those that need them most.244 In Poland, Trybunał Konstutucyjny, the Constitutional Court, has outlawed virtually any exemption to allow a pregnant person to terminate their fetus.245 In both nations, anti-abortion rhetoric has dramatically increased, with some in government going as far as advocating jail time246, or even the death penalty for those who attempt to seek abortions.247 Pregnant people in these nations are losing autonomy, liberty, and control over their bodies - giving it up in order to carry their fetus to full term for the expressed desire of the state. One of the greatest benefactors of the pro-life movement is the Catholic Church. In both the United States and Poland, the Church has provided support to anti-abortion groups,248 influencing the laws so profoundly it calls into question the validity of the separation of church and state as well as the functionality of democracy. Looking at current jurisprudence and abortion regulations of both nations will allow for a deeper understanding of current efforts against abortions and their ease of access. This paper will also attempt to show a link between the Church’s involvement in the pro-life sphere and current antiabortion jurisprudence and legislation. Crucial similarities between the United States and Poland position them as relevant cases for comparison. Though a majority of their populations support abortion in the aggregate, current government regulation has been increasingly restrictive towards reproductive rights. Also, the Catholic Church’s roots in both nations ought to be looked at when looking at intended influence over laws, legal challenges brought, andfinancial contributions made towards anti-abortion efforts.

II. THE UNITED STATES

A. American Jurisprudence on Abortion

In America, states have long thought themselves the correct arbitrators for determining ease of access to abortions, citing a common view regarding the Constitution’s neutrality on abortion. Prior to Roe v. Wade249 legalizing abortion until a fetus’ viability and recognizing abortion as a constitutional right, abortion was illegal in thirty states. In states where it was legal, only four allowed termination of pregnancy upon request of the pregnant person. One state permitted abortion solely in the case of rape. Two states considered it legal when a danger was posed to the pregnant person. Thirteen states allowed abortion for a flurry of reasons: rape, incest, a likely-damaged fetus, danger to the pregnant person’s health. The Supreme Court has only

244 SUPREME COURT APPEARS OPEN TO UPHOLDING MISSISSIPPI ABORTION RESTRICTION THE NEW YORK TIMES, HTTPS://WWW.NYTIMES.COM/LIVE/2021/12/01/US/ABORTION-MISSISSIPPI-SUPREME-COURT 245 POLAND ABORTION: TOP COURT BANS ALMOST ALL TERMINATIONS BBC NEWS, HTTPS://WWW.BBC.COM/NEWS/WORLD-EUROPE-54642108 246 ANOTHER TEXAN GOP LAWMAKER IS ATTEMPTING TO MAKE ABORTION PUNISHABLE BY THE DEATH PENALTY THE TEXAS TRIBUNE, HTTPS://WWW.TEXASTRIBUNE.ORG/2021/03/09/TEXAS-LEGISLATURE-ABORTION-CRIMINALIZE-DEATH-PENALTY/ 247 POLAND CLARIFIES ABORTION LAW AFTER PROTESTS OVER MOTHER’S DEATH BBC NEWS, HTTPS://WWW.BBC.COM/NEWS/WORLD-EUROPE59206683 248 PSATORAL PLAN FOR PRO-LIFE ACTIVITIES USCCB, HTTPS://WWW.USCCB.ORG/PROLIFE/PASTORAL-PLAN-PRO-LIFE-ACTIVITIES 249 ROE V. WADE , (1973) 410 U.S. 113

prohibited access to abortion under three criteria: health of a person, state interest of the fetal life, and “integrity of the medical profession.”250 This disordered array of state law regarding abortion may once again become common practice, should the Supreme Court restrict ease of access to abortion and by default, allow states to independently legislate on citizens’ reproductive rights. Looking at case law and jurisprudence of the Court, abortion’s legal justification will become clear.

Before the right to abortion was firstly squarely settled before the Supreme Court in 1973, two cases of note aided in that process by determining essential precedent. Griswold v. Connecticut251 held, for the first time, that individuals had a right to privacy. In this case, couples have the right of marital privacy against state laws regarding contraception. Justice Douglas wrote that the Constitution does not have a specific amendment dealing with privacy but that the Bill of Rights holds a penumbra maintaining a right to privacy. The First, Third, Fourth, and Ninth Amendments uphold the penumbra of a right to privacy. However, the first distinction between the right to privacy is made in this case. Altering viewpoints about where the right to privacy was found - the Ninth and Fourteenth, the Due Process Clause of the Fourteenth, the Fourteenth, nowhere at all - was another indicator that the right to privacy and its place in the Constitution was not going to be an easy interpretation for Justices and the Court by large in future cases. The only other pre-abortion case heard by the Supreme Court was Eisenstadt v. Baird, 252 which granted non-married couples the same right to contraceptives as Griswold253 did to married couples. The Court held that Massachusetts law failed the rational basis test under the Equal Protection Clause of the Fourteenth Amendment. Justice Brennan wrote that without a rational basis for why unmarried couples could not have access to contraception, the law is unconstitutional - avoiding invoking Griswold254 at all. This case also produced a quotation that acutely describes the stance of pro-abortion movements for the past fifty years. Justice Brennan noted, “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as to the decision whether to bear or beget a child.”255 Doe v. Bolton256 and Roe v. Wade257 came down the docket together in 1973. Roe258 legalized abortion and Doe259 cleared up the definition of a pregnant person’s health and the constitutional right to privacy regarding abortion. Together, they formed the right to an abortion under liberty, autonomy as a right under the Constitution. Doe260 found that Georgia’s requirements of written approval by physicians and the three member committee to be unconstitutional. The Court determined that the right to privacy extended to marriage, procreation, education, child-rearing, and familial relationships. Justice Blackmun noted with care, “the deep

250 STANFORD LAW REVIEW, HTTPS://REVIEW.LAW.STANFORD.EDU/WP-CONTENT/UPLOADS/SITES/3/2018/01/70-STAN.-L.-REV.-319.PDF 251 GRISWOLD V. CONNECTICUT, (1965) 381 U.S. 479 252 EISENSTADT V. BAIRD, (1972) 405 U.S. 438 253 GRISWOLD AT 381 254 ID

255 EISENSTADT AT 405 256 DOE V. BOLTON, (1973) 410 U.S. 179 257 ROE AT 410 258 ID

259 DOE AT 410 260 ID

and seemingly absolute convictions on both sides”261 as well as the “sensitive” and “emotional” nature of the case, a great indicator of the passionate and personal nature of abortion present-day. The Court determined that constitutionally, privacy was “broad enough to encompass a [person’s] decision whether or not to terminate their pregnancy.”262 Finally, the health of a pregnant person was defined as emotional, familial, physical, psychological, or by their age. In Roe, 263 the Court first decided that the right to privacy in the Due Process Clause of the Fourteenth Amendment protects persons deciding to have abortions. They balanced this with the government’s interest to protect people’s health and the “potentiality” of human life, while recognizing that this balancing act shifts during the course of pregnancy. As such, a trimester framework was established. Broad prohibitions of abortion were illegal, as were first trimester abortion regulations. During the second trimester, only reasonable regulations relating to parental health were allowed. The third trimester, or the time when the fetus developed most “potentiality” for life, could be regulated once the fetus reached viability. Then, a state may regulate or even prohibit abortion so long as exceptions are made to save the life or health of the pregnant person. The workability of the trimester framework was not good, and problems with state laws and regulations became very prevalent, leading to the greatest abortion case of the 1990’s. Planned Parenthood v. Casey264 changed the legal principles regarding abortion law. Pennsylvanian abortion law required a twenty-four hour waiting period, informed consent, spousal notification, and parental consent prior to a physician performing an abortion. The waiting period required that patients seeking an abortion would have to add another day to their procedure, coming to the clinic twice; informed consent referred to a requirement of the providers to explain to the patient the risks, consequences of the procedure. Spousal notification required that, if a patient was married, that their spouse be notified of the abortion procedure prior; parental consent worked the same way, however only applying to minor patients. Deciding that the previous trimester framework was in fact unworkable, the Court did hold onto “the essential ruling of Roe.”265 Stare decisis played a massive role in this decision, having decided nineteen years of Roe266 related decisions had enough time to cement it into American jurisprudence. Roe267 was not proven unconstitutional here nor anywhere else and therefore had to be given reverence. In the new standard, Justice O’Connor asked if a state law has an effect or purpose that is unduly burdensome, defining it as “substantial obstacle in the path of a [person] seeking an abortion before the fetus attains viability.”268 Under the undue burden framework, three requirements, save spousal notification, were constitutional. The dissents disagreed with upholding Roe, 269arguing it was incorrectly decided and that it was not a protected liberty under the Constitution. Whole Woman’s Health v. Hellerstedt270 looked at the balancing act of the government’s interest of parental health versus laws that restrict abortion. Justice Breyer wrote that courts must

261 ID 262 ID

263 ROE AT 410. 264 PLANNED PARENTHOOD V. CASEY, (1992) 505 U.S. 833 265 ROE AT 410 266 ID 267 ID

268 CASEY AT 505 269 ID

270 WHOLE WOMAN”S HEALTH V. HELLERSTEDT, (2016) 579 U.S. 582

weigh the extent of the served laws with the government interest it is supposed to protect. In this case, the Texan law did not sufficiently benefit parental health enough in order to justify the burden it placed on pregnant persons, violating the undue burden standard. The dissent, authored by Justice Thomas, felt that the additional tests of judicial review made the undue burden standard “[meaninglessly] [formalistic]” 271 and therefore gave little to no guidance to the lower courts because of its indifference to the Constitution. Another case weighing benefits to a pregnant person versus an expressed government interest is June Medical Services v. Russo.272 Russo273 asked if the Fifth Circuit of Appeals’ decision to require physicians to have admitting privileges at hospitals clashed with the precedent set in Whole Woman’s Health274 . The Supreme Court found that both Casey275 and Whole Woman’s Health276 required that district courts independently review the legislative facts of an abortion related case and weigh their benefits against their burdens of pregnant persons. An appellate court would only be able to throw out those facts if they were found to be erroneous, which was not the case. Instead, the findings of the district court were “ample in support of burdens and benefits”277 of the Louisiana law. Therefore, the judgment of the Fifth Appellate Court was overturned. Dissents in this case were aplenty, but the most concurred dissent found that the majority misused stare decisis, “invoked the inapplicability of appellate review” and distorted the record. Furthermore, the majority abandoned the Casey test for a new balancing act in Whole Woman’s Health.278 Dobbs v. Jackson Women’s Health Organization279 is an undecided case on the current Supreme Court docket. It is said to be the very case to overturn Roe v. Wade. 280 If the final opinion is anything like the confirmed, leaked draft, it will, along with a complete reversal of Casey. 281 Dobbs282 asks whether the Mississippi law banning abortion at fifteen weeks gestation is unconstitutional. The Court has not heard a case on viability since Roe. 283 Dobbs284 has seven important parts: TRAP Licensing, twenty-four hour mandatory waiting period, two-trip requirement, physician-only, telemedicine ban, fifteen week ban, six week ban. TRAP Licensing refers to a restrictive licensing system, similar to the admitting privileges scheme prior. The twotrip requirement corroborates the mandatory waiting period, preventing low-income pregnant persons from accessing abortions as a result of their financial status. The telemedicine ban prevents physicians and other providers from utilizing online technology to counsel patients and provide care, especially problematic during the COVID-19 pandemic. Finally, requiring only physicians perform abortions would significantly reduce providers in Mississippi. The difference between the

271 ID

272 JUNE MEDICAL SERVICES V. RUSSO, (2020) 591 U.S. ___ 273 ID 274 ID

275 CASEY AT 505 276 WHOLE WOMAN’S HEALTH AT 579 277 JUNE AT 591 278 WHOLE WOMAN’S HEALTH AT 579 279 DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION , NO. 19-1392 280 ROE AT 410 281 CASEY AT 505 282 DOBBS AT 19-1392 283 ROE AT 410 284 DOBBS AT 19-1392

fifteen and six week ban is that at fifteen weeks, physicians who perform abortions are threatened with civil penalties as a result. Should the leaked Dobbs285 be anything close to its final form and Roe286 be struck down as having been erroneously decided from the start, abortion as a constitutional right would cease to exist on the federal level. Roe’s287 fifty-year precedent and the hundreds of cases that rely on its principles would no longer serve to further the interest of a right to abortion. Fifteen states hold legislative protections for abortion rights.288 Thirteen legalized “trigger laws” that prohibit abortion the very second Roe 289is overturned. Twenty one states have already either tried to pass legislation harmful or restrictive to abortion access to people or can very easily do so.290

B. The Catholic Church Within the Pro-Life Movement

Roe291 and its consequences for pregnant persons mobilized both sides of the abortion movement. After 1973, the NARAL organization for a Pro-Choice America turned into the National Abortion Rights Action League. They fundraised for abortion centers to remain open, abortions to become extremely low cost, and for politicians of a similar political ideology to remain in power. The anti-abortion groups had a very powerful ally: the Church. The Catholic Church in the United States has not been just a bystander to the abortion movement. Connie Paige has said that “[t]he Roman Catholic Church created the right-to-life movement. Without the Church, the movement would not exist as such today.”292 The Church’s support has existed in the form of doctrinal changes to its religious dogma; canon law banned abortions in 1869.293 Church sermons on right-to-life groups provide legitimacy to these groups, often hosting meetings and allocating fundraisers for them on church grounds294. The Catholic Church as an institution monetarily supports pro-life groups, like the Obria295 clinic as recently as 2019. Its response to Roe v. Wade296 was multifaceted. Firstly, the Church immediately condemned the decision, calling it “a monstrous injustice”297 and “[catastrophic] for America.”298 Going further, the National Conference of

285 ID

286 ROE AT 410 287 ID

288 ABORTION POLICY IN THE ABSENCE OF ROE GUTTMACHER INSTITUTE, HTTPS://WWW.GUTTMACHER.ORG/STATE-POLICY/EXPLORE/ABORTIONPOLICY-ABSENCE-ROE 289 ROE AT 410 290 ID 291 ID

292 ZAID W. MUNSON, THE MAKING OF PRO-LIFE ACTIVISTS: HOW SOCIAL MOVEMENT MOBILIZATION WORKS (UNIVERSITY OF CHICAGO PRESS) (2008) 293 ABORTION AND CATHLIC THOUGHT. THE LITTLE-KNOWN HISTORY CONSCIENCE (WASHINGTON, D.C), HTTPS://PUBMED.NCBI.NLM.NIH.GOV/12178868/ 294 8 KEY FINDINGS ABOUT CATHOLICS AND ABORTION PEW RESEARCH CENTER, HTTPS://WWW.PEWRESEARCH.ORG/FACT-TANK/2020/10/20/8-KEYFINDINGS-ABOUT-CATHOLICS-AND-ABORTION/ 295 CATHOLIC BISHOPS FUND ANTI-CHOICE ‘CLINICS’ SET TO RECEIVE TRUMP TITLE X FUNDING - REWIRE NEWS GROUP - RELIGIOUS DISPATCHES REWIRE NEWS GROUP, HTTPS://REWIRENEWSGROUP.COM/RELIGION-DISPATCHES/2019/04/02/CATHOLIC-BISHOPS-FUND-ANTI-CHOICE-CLINICS-SET-TORECEIVE-TRUMP-TITLE-X-FUNDING/ 296 ROE AT 410 297 SECRETARIAT FOR PRO-LIFE ACTIVITIES, 2022. [ONLINE] USCCB.ORG. HTTPS://WWW.USCCB.ORG/ISSUES-AND-ACTION/HUMAN-LIFE-ANDDIGNITY/ABORTION/UPLOAD/STATEMENT-OF-THE-COMMITTEE-FOR-PROLIFE-AFFAIRS.PDF 298 ID

Catholic Bishops tasked Monsignor James McHugh to aid the Church in its efforts to increase prolife participation. His advisory group, meant to document pro-choice laws and legislation, ended up turning into an ad-hoc organization dedicated to legally challenging Roe299 was formed. A taxexempt lobby and Church funded group,300 The NCHLA - National Committee for a Human Life Amendment - was formed. Fifty-thousand dollars were put into the committee to “initiate and coordinate a program of information”301 that would be disseminated to Catholics, full of information about liberal legislation and state policies promoting abortions and their ease of access in certain states. The NCHLA hoped to pass America’s twenty-eighth amendment to protect the lives of the unborn. It was unsuccessful, but had luck passing the Hyde Amendment in 1976,302 preventing the use of federal funding to pay for abortions except if the pregnancy resulted from a rape or incest or if the pregnant person’s life was in danger.303 Once the popularity of an amendment died down, the real group of interest came to popularity: the National Right to Life Committee [NRLC]. By 1980, the NRLC had a budget of $1.6 million and eleven million members.304 Fortune ranked them as the eighth most influential D.C. public policy group in 1999.305 Its popularity has waned over the years, sitting at about seven million members now. Its influence, however, has only increased. Leadership in pro-life, conservative circles is significantly aided by the political action center of the NRLC which contributes to their campaigns. A schism between part of the committee occurred - when pro-life Democrats and pro-life Republicans struggled with the alt-right politicization of the right-to-life movement during the mid-1990s. In the 1996 election cycle, over two million dollars were allocated to pro-life political candidates nationwide.306 These officials have used their sizable influence to support the appointments of pro-life judges and the elections of pro-life political candidates at both the state and federal level.307 The physical manifestation of a fading line between the separation of church and state is perfectly encapsulated by Helen Osman, the communications consultant for the Texas Catholic Conference of Bishops.308 She said that, “people of faith, ‘the church’ have always been needed in politics.”309 Their complementary group, the Texas Right to Life group, is a lobby group that is “well-funded by GOP Donors” 310 and “its endorsement of candidates can fundamentally affect

299 ROE AT 410 300 THE NATIONAL RIGHT TO LIFE COMMITTEE: ITS FOUNDING, ITS HISTORY, AND THE EMERGENCE OF THE PRO-LIFE MOVEMENT PRIOR TO ROE V. WADE, THE CATHOLIC HISTORICAL REVIEW, HTTPS://PUBMED.NCBI.NLM.NIH.GOV/22069796/ 301 ID

302 VOTERVOICE.NET. 2022. NCHLA HOME. [ONLINE] HTTPS://WWW.VOTERVOICE.NET/MOBILE/NCHLA/HOME 303 THE HYDE AMENDMENT AND COVERAGE FOR ABORTION SERVICES KFF, HTTPS://WWW.KFF.ORG/WOMENS-HEALTH-POLICY/ISSUE-BRIEF/THEHYDE-AMENDMENT-AND-COVERAGE-FOR-ABORTION-SERVICES/ 304 OPPOSITION AND INTIMIDATION: THE ABORTION WARS & STRATEGIES OF POLITICAL HARASSMENT, HTTPS://ARCHIVE.ORG/DETAILS/OPPOSITIONINTIMI00DOAN 305 FORTUNE 500 FORTUNE, HTTPS://FORTUNE.COM/FORTUNE500/1999/ 306 NATIONAL RIGHT TO LIFE COMMITTEE ABORTION, NRLC, LEGISLATION, AND WOMEN - JRANK ARTICLES, HTTPS://LAW.JRANK.ORG/PAGES/8739/NATIONAL-RIGHT-LIFE-COMMITTEE.HTML 307 LOBBYING FOR THE UNBORN: THE AMERICAN CATHOLIC CHURCH AND THE ABORTION ISSUE MÉMOIRE(S), IDENTITÉ(S), MARGINALITÉ(S) DANS LE MONDE OCCIDENTAL CONTEMPORAIN. CAHIERS DU MIMMOC, HTTPS://JOURNALS.OPENEDITION.ORG/MIMMOC/2320 308 CATHOLIC CHURCH CUTS TIES WITH TEXAS’S LARGEST PRO-LIFE GROUP FRANCE-24, “PEOPLE OF FAITH ‘THE CHURCH’ HAVE ALWAYS BEEN NEEDED IN POLITICS,” SAYS HELEN OSMAN, COMMUNICATIONS CONSULTANT FOR THE TEXAS CATHOLIC CONFERENCE OF BISHOPS. 309 ID 310 ID

elections.” 311 As a corporation, every group has the ability to support whichever candidate and political party they wish, under Citizens United v. FEC312 and the Federal Election Campaign Act.313 Yet, there is no exemption for the Church to cross their First Amendment boundary to do so. Using Church and GOP finances to help elect pro-life politicians in accordance with Church doctrine is well outside the scope of the Constitution and goes against the founding principles of this country. Advocates both pro and anti-abortion have had considerable influence and support from groups since Roe314. Yet, the Catholic Church and its increasingly hostile view towards the separation of Church and State has worked to support these pro-life groups as a way to continue fighting against the pro-choice movement and bringing legal challenges against laws that ease access to abortions.

III. POLAND

A. The Catholic Church As Poland’s Ally

After the fall of the Berlin Wall, Poland was in an especially precarious situation as a nation. One-hundred twenty three years of partition and forty-four years of Soviet control had passed and for the first time in a long time, the Polish people were finally in a position to rule themselves, independent of any foreign control. As such, the Polish government was looking for internal allies and domestic cooperation to prop up control of their people and show the West their governing capabilities. One great ally who always served them well and aided them out of Soviet rule: the Catholic Church. Coincidentally, the Church and its Polish Pontiff were undergoing peak moral authority in Poland. In the late 1980s, 95% of Poles trusted the Catholic Church as an institution and as a public activist.315 Even today, nearly nine of ten people identify as Catholic, with 45% attending weekly Mass.316 Poland’s nationalism coexists with its religiosity, and in the post-Soviet era, the Catholic Church was seen as “the only legitimate institutional counterpart to the state.”317 The government and the Church rekindled their mutually beneficial, reciprocal relationship, making good use of their alliance once again. Their connection began with Poland’s conversion to Catholicism under Prince Mieszko I in 966.318 Since then, Poland has used the Church and its doctrine to enforce laws, bolster foreign relations, unify people and gain its independence in 1918. The Catholic Church has found Poland to be an ally in Central Europe during periods of anti-Catholic sentiment and has consistently relied on them to push their

311 ID

312 CITIZENS UNITED V. FEC, (2010) 558 U.S. 310 313 FEDERAL ELECTIONS CAMPAIGN ACT OF 1971, 52 U.S. CODE § 30101 314 ROE AT 410 315 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451 316 RELIGIOUS BELIEF AND NATIONAL BELONGING IN CENTRAL AND EASTERN EUROPE PEW RESEARCH CENTER’S RELIGION AND PUBLIC LIFE PROJECT, HTTPS://WWW.PEWFORUM.ORG/2017/05/10/RELIGIOUS-BELIEF-AND-NATIONAL-BELONGING-IN-CENTRAL-AND-EASTERN-EUROPE/ 317 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451 318 NEW CATHOLIC ENCYCLOPEDIA ENCYCLOPEDIA.COM, HTTPS://WWW.ENCYCLOPEDIA.COM/RELIGION/ENCYCLOPEDIAS-ALMANACSTRANSCRIPTS-AND-MAPS/POLAND-CATHOLIC-CHURCH

conservative agendas. The government knew that post-conflict and post-Soviet rule, gender roles in Polish families were skewed319 and did not conform to the traditionalist views previously entrenched.320 This worried the Church, who wished to remain Poland’s strong, traditional, conservative ally and felt that they needed the support of the Polish people to continue in that role. For the Catholic Church and Pope John Paul II, it was imperative that Polish family values remained in place. Abortion became a watershed issue that solidified the importance of conservative, traditional values. Already a “sticky subject”, the issue of abortion remained imprinted on the minds of Poles as something they had never had authority over. Before 1993, Poland allowed abortions during the Nazi-era and then again under Soviet rule in 1956. The goal of abortions under the Nazi regime was to “[limit] the fertility of Poles.”321 Some Poles to this day associate pro-choice legislation with that slightly-genocidal policy. Looking at the legislative history of abortion in Poland, it will become how the Church has interfered with it and why it remains such a divisive issue.

B. Polish Legislation

The Penal Code of 1932322 granted doctors and physicians the ability to perform abortions on pregnant persons if the “pregnancy resulted from a criminal offense or gravely threatened the health of the person[woman].”323 Twenty seven years later, the necessary conditions became moot and abortions were available as requested. It is important to denote that abortions took the form of primary birth control for many persons in this stage. Preventative birth control was not a prevalent or common practice in the nation, and abortions filled the gap for persons who experienced difficult living conditions. Abortions were commonly seen as healthcare and birth control, as its prevalence was not common. As recently as 2014, contraceptives are used by 47.7% of married women, ages fifteen to forty-nine.324 Poland was able to renege on pro-abortion laws after their government was independent, completely separate of Soviet Control. As soon as December 1991, the Code of Medical Ethics was endorsed by the Supreme Chamber of Medicine. This Code permitted abortions in the case of suspected crime or on medical grounds.325 Another marker of the Code was its enforcement of the conscience clause and its extension to IVF[in-vitro fertilizations]; this refers to physicians or doctors being allowed to reject performing abortions or other medical services should their consciences or religions prevent them from doing so. This was a loophole the Church required for the passage of this Code, as well as provided political support to the present majority party: the Chrześcijański Związek Jedności Narodowej [Christian Democratic Union].326

319 CIVIL WAR AND FEMALE EMPOWERMENT - PEACE RESEARCH INSTITUTE OSLO, HTTPS://WWW.PRIO.ORG/PUBLICATIONS/12589 320 AS POLAND’S CHURCH EMBRACES POLITICS, CATHOLICS DEPART REEUTERS, HTTPS://WWW.REUTERS.COM/ARTICLE/US-POLAND-CHURCHINSIGHT/AS-POLANDS-CHURCH-EMBRACES-POLITICS-CATHOLICS-DEPART-IDUSKBN2A30SN 321 POLAND, ABORTION, AND THE ROMAN CATHOLIC CHURCH LAWDIGITALCOMMONS, HTTPS://LAWDIGITALCOMMONS.BC.EDU/CGI/VIEWCONTENT.CGI?ARTICLE=1308&CONTEXT=ICLR 322 KODEKS KARNY 1932 323 ID

324 ABORTION IN POLAND: POLITICS, PROGRESSION, AND REGRESSION JSTOR, HTTPS://WWW.JSTOR.ORG/STABLE/26605058 325 KILLING ‘UNBORN CHILDREN’? THE CATHOLIC CHURCH AND ABORTION LAW IN POLAND SINCE 1989 JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0964663916668247 326 ID

1993 marks the passage of the Family Planning Act327, or the Protection of the Human ‘Foetus’ and Conditions Permitting Pregnancy Termination Act. This law is also known as “the Abortion Compromise” because of the delicate balance of access to abortion and the appeasement of the Church. This alliance with the Church on this particular issue came as a result of the “debt” the Polish government owed the Church “for its role in dismantling the communist regime.”328 The categories for abortion were then changed to: endangering the life or health of the person “until such time as the foetus is capable of surviving outside the [parent’s] body”, 329 in cases where “prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life threatening disease”, 330 and up until twelve weeks gestation when the pregnancy was strongly suspected to be a result of a criminal act. Three years later, an amendment added a fourth instance: persons in difficult living conditions or experiencing personal situations.331 Along with this requirement, a three day waiting period was encased. It lasted only a year before the Trybunał Konstytucyjny found it illegal. Although this act did not criminalize people who sought to abort their fetuses or those who did get abortions, that legal doctrine is no longer accurate.332 As of October 2020, the Tribunal Konstytucynjy declared the 1993 Family Planning Act unconstitutional.

C. Polish Jurisprudence on Abortion

The Constitutional Court, or Trybunał Konstitucyjny, handed down two important decisions that significantly altered the meaning of abortion access to Poles since 1997. Recall the 1996 amendment, to permit a fourth criteria for persons in difficult living conditions or experiencing personal situations.333 The Trybunał struck that criteria down, citing the Constitution’s focus on the right of life of all persons. Andrzej Zoll wrote that, “[the law allowed abortions] at the subjective wish of a [person] who considers [themselves] in a difficult personal or social situation.”334 Of note was the timing of this decision, as Pope John Paul II was scheduled for an eleven day visit just two days later. Since then, the Trybunał has undergone changes to its makeup since the Prawo i Sprawiedliwość Party [PiS]’ rise to a political majority in 2015. Poland’s government has been accused of not following its own constitutional process as well as the European Union’s by appointing politically aligned PiS judges - essentially “[enabling] the executive and legislative branches to interfere in the composition, powers, administration and functioning of the judicial branch.”335 In 2020, PiS asked the Trybunał to determine the issue of abortion, as its legislation was no closer to being passed and its allies were eager to see results.

327 [USTAWA O PLANOWANIU RODZINY, OCHRONIE PŁODU LUDZKIEGO I WARUNKACH DOPUSZCZALNOŚCI PRZERYWANIA CIĄŻY] (DZ. U. 1993 NR 17 POZ. 78). 328 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451 329 ID 330 ID

331JOURNALSSAGEPUB, SUPRA 75 332 ID

333 JOURNALSSAGEPUB, SUPRA 75 334 POLISH COURT VOIDS LIBERAL LAW NYTIMES, HTTPS://WWW.NYTIMES.COM/1997/05/29/WORLD/POLISH-COURT-VOIDS-LIBERAL-ABORTIONLAW.HTML 335 COMMISSION V. POLAND: WHAT HAPPENED, WHAT IT MEANS, WHAT WILL IT TAKE VERFASSUNGSBLOG, HTTPS://VERFASSUNGSBLOG.DE/COMMISSION-V-POLAND-WHAT-HAPPENED-WHAT-IT-MEANS-WHAT-IT-WILL-TAKE/

This and the majority PiS-leaning makeup of the court has called into question their October 2020 ruling, declaring the 1993 Family Planning Act unconstitutional. Chief Justice Przyłębska wrote that this legislation unequivocally violates the thirty-eighth article of the Polish Constitution. That article reads, “the inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.”336 Przyłębska continued that the 1993 Act’s criteria allowing for abortions to be performed in the instance of fetal damage is the unconstitutional component of the law. Approximately 98% of abortions in Poland were performed utilizing this now-stricken criteria. Now, the only three permissible criteria to terminate a pregnancy are: rape, incest, threat to a person’s health and life. Following this ruling, a chilling effect was immediately felt by pregnant persons. Hospitals and abortion service centers canceled previously set-up abortions, for fear of the retributive consequences that were now enforceable.337 A direct consequence of the fear of service centers were the deaths of Agnieszka and Izabela, two anonymous women who died of sepsis after doctors waited too long to perform abortions after their fetuses died in utero.338 The doctors’ hesitation came from the potential of jail time, the consequence of performing an abortion outside the three permissible criteria, should a heartbeat have been detected or even possible. Following their deaths, hundreds of thousands of protesters339 lined the streets of Polish cities, to no avail; the ruling still stands. These women’s deaths are not uncommon; doctors have been terrified to work outside the very narrow scope of the Trybunał’s ruling. How many persons have died as a result cannot be measured.

D. The Catholic Church Within the Polish Government

A recent poll found that 73% of Poles do not believe that the Church should endorse political candidates, and 75% of Poles believe that the Church should stay out of politics completely.340 The Church, losing members, its influence, and popular favor, began to rely on PiS which was currently in power to aid them with pro-life and pro-Catholic policies.341 PiS members are often seen at Sunday Mass and make it a point to be seen with influential Cardinals and Bishops. They also consult them in political contexts, something PiS politicians advertise.342 The Church is often in the middle of hotly contested political debates - somewhat by their own design. Their desire to cooperate so closely with the Polish government and hopes that Polish laws acutely follow Catholic doctrinal law inadvertently forces them into the spotlight of political conversation. When high-ranking Bishops endorsed anti-abortion legislation that failed in the Sejm or Senat

336 DZ.U. 1997 NR 78 POZ. 483 [POLISH CONSTITUTION] 337 PROSECUTORS PROBE PREGNANT WOMAN’S DEATH IN POLAND ASSOCIATED PRESS, HTTPS://APNEWS.COM/ARTICLE/CORONAVIRUS-PANDEMICABORTION-HEALTH-BUSINESS-POLAND-E2F817C0713B5E7CABE96B10F1D538F5 338 POLAND CLARIFIES ABORTION LAW AFTER PROTESTS OVER MOTHER’S DEATH BBCNEWS, HTTPS://WWW.BBC.COM/NEWS/WORLD-EUROPE59206683 339 POLAND’S ABORTION BAN SPURS LARGEST PROTEST IN DECADES NYTIMES, HTTPS://WWW.NYTIMES.COM/2020/10/30/WORLD/EUROPE/POLANDABORTION-WOMEN-PROTESTS.HTML 340 PERSISTENCE AND CHAANGE IN MORALITY POLICY: THE ROLE OF THE CATHOLIC CHURCH IN THE POLITICS OF ABORTION IN IRELAND AND POLAND JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0141778919894451 341 THE CATHOLIC CHURCH AND ITS IMPACT ON PUBLIC POLICY IN CONTEMPORARY DEMOCRACIES - SCHOLARWORKS AT WMU, HTTPS://SCHOLARWORKS.WMICH.EDU/CGI/VIEWCONTENT.CGI?ARTICLE=4305&CONTEXT=DISSERTATIONS 342 ID

[Lower or Upper Senate], some saw it as “putting the institutional interest of the Church at risk”343 and “intervening in politics”344 at too high a level. The prime question to be asked is whether the failure of the legislation in spite of Church-backing is the true institutional risk. Polish Bishops go beyond mere approval or rejection of anti-abortion initiatives.345 Rejection of a bill, regardless of how outlandish the language or how unlikely its ratification, is not often an option, as it is seen as a departure from Catholic dogma.346 That is too high a political price to pay for Polish politicians, who know that Catholic support is their political lifeline. An issue then arises for the Church: when to use their political capital. It is not politically possible, nor practical to support every antiabortion legislative measure in the country. This is especially true when more than one pro-life group takes up the task of drafting such legislation.347 From 2010-2015, four bills were written; three were proposed by pro-life groups that drafted them alongside the Church and its leadership.348 Again, the Church placed itself in the middle of this political debate by its own design, ensuring that any separation of Church and state existed on paper alone. These pro-life groups are another way for the Catholic Church to insert their policies into the Polish government: such organizations have skyrocketed in popularity among Poles. They have a bona-fide way to generate membership and revenue: local parishes. Their objectives are to change the public’s understanding of abortion and to make it fully illegal, utilizing their political rights as citizens. The biggest pro-life group is Fundacja Pro[Foundation Pro]. From 2010 to 2015, Fundacja Pro launched three bills to restrict abortion access across Poland.349 The justifications of those legislations were threefold: when pregnancy was suspected resulting in an alleged criminal act, life or health of the pregnant person was in danger, and/or the fetus was damaged. The bills created by Fundacja Pro would have eliminated the first two categories and sought to impose a restriction on the third; damage would only “count” if Down Syndrome could be verified in the fetus.350 Such abortions are referred to as eugenic abortions.351 Not a single of their bill versions have been ratified, although the Church continues to host and financially contribute to them. Instead of legislation being the source of abortion restrictions, the Tribunal Konstitucyjny has played the greatest role in limiting people’s reproductive rights. The link between the Catholic Church and a decrease of recorded, performed abortions is well defined. From 1965 to 1989, approximately 2,056,830 abortions were recorded as performed in Poland.352 Right as the new government was installed and the Polish-Church alliance was reinstated, abortions dropped from 82,137 performed in 1989 to 11,640 in 1992.353 1997 saw the Konstytucynjy Tribunal’s striking down of abortions based on social grounds: a person’s living

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351 EUGENIC ABORTION: AN ETHICAL CRITIQUE CMAJ: CANADIAL MEDICAL JOURNAL ASSOCIATION = JOURNAL DE L’ASSOCIATION MEDICALE CANADIENNE, HTTPS://WWW.NCBI.NLM.NIH.GOV/PMC/ARTICLES/PMC1452135/ 352 REVISITING POLISH ABORTION LAW: DOCTORS AND INSTITUTIONS IN A RESTRICTIVE REGIME - JOURNALS.SAGEPUB.COM, HTTPS://JOURNALS.SAGEPUB.COM/DOI/10.1177/09646639211040171 353 ID

conditions or their mental state.354 That same year, 3,047 abortions were performed.355 In 2016, one thousand abortion were recorded as being performed; estimates of illegal abortions range from fifty-thousand to two-hundred thousand that year.356 Every time there is a decline of recorded abortions, a new ruling or decision was made restricting ease of access to abortions. 2016 saw one of the largest ever protests, labeled Czarny Protest [Black Protest], on the streets of Poland in opposition to a near total ban on abortions and a five year prison sentence to providers357. At least one in four Polish women under sixty-five has had an abortion, though not all have been legal nor in Poland.358 The number of abortions estimated are not decreasing; in fact, they have either increased or remained the same. Poland, in their attempts to criminalize providers and decrease ease of access, have pushed pregnant persons to seek harmful, illegal, sometimes foreign abortions instead. This is suspected to continue increasing as the severity of the restriction continues to remain in place.

IV. A COMPARISON OF POLAND AND THE UNITED STATES

One of the greatest differences between Poland and the United States is the mechanism behind their anti-abortion crusades. Poland’s government through pro-life citizen-run groups has tried to use legislation to curtail the rights of persons to terminate their pregnancies. This has not been successful; their latest efforts, much like those before this, have failed. The Stop Abortion Now Bill, which attempted to declare abortion as homicide, was dead in the water as 368 opposed while only 48 agreed.359 Recall the four bills attempted from 2010-2015 alone. Instead, Poland’s success as a nation unfriendly to abortion has come alone from the decisions handed down by the Tribunal Konstytucyjny. The United States does not rely alone on the Supreme Court and lower courts decisions to limit ease of access to abortions. Instead, states pass legislation that prevent abortions from being performed and those laws’ constitutionalities are then tested by the courts. Recall Dobbs v. Jackson Women’s Health Organization360. The case came before the court because the legality of the Mississippian law is questioned. Many states have had similarly circumstanced situations with their abortion laws. The U.S. has succeeded in reducing reproductive access to persons through states and the Supreme Court, alongside lower courts. Another difference between Poland and the United States is the Church’s role in the crafting of legislation. The United States has a much more defined separation of church and state that, though questionable at times, does not ever come as close as Church leadership directly working with legislators to pass laws. Yet, Poland’s major political parties rely on the Catholic Church for funding and political support and have, as a result, bound themselves together - unable

354 THE STRUGGLE FOR ABORTION RIGHTS IN POLAND SXPOLITICS.ORG, HTTPS://WWW.SXPOLITICS.ORG/FRONTLINES/BOOK/PDF/CAPITULO5_POLAND.PDF 355 JOURNALS.SAGEPUB.COM at note 87 356 ABORTION IN POLAND: POLITICS, PROGRESSION, AND REGRESSION JSTOR, HTTPS://WWW.JSTOR.ORG/STABLE/26605058 357POLAND;S ABORTION BAN PROPOSAL NEAR COLLAPSE AFTER MASS PROTESTS THE GUARDIAN, HTTPS://WWW.THEGUARDIAN.COM/WORLD/2016/OCT/05/POLISH-GOVERNMENT-PERFORMS-U-TURN-ON-TOTAL-ABORTION-BAN 358 KILLING ‘UNBORN CHILDREN’? THE CATHOLIC CHURCH AND ABORTION LAW IN POLAND SINCE 1989 JOURNALSSAGEPUB, HTTPS://JOURNALS.SAGEPUB.COM/DOI/PDF/10.1177/0964663916668247 359 POLAND’S LAWMAKERS REJECT BILL SEEKING TO OUTLAW ABORTION ABC NEWS, HTTPS://ABCNEWS.GO.COM/HEALTH/WIRESTORY/POLANDSLAWMAKERS-REJECT-BILL-SEEKING-OUTLAW-ABORTION-81517099 360 DOBBS AT. 19-1392

to separate governing from religiosity. American legislators have not crossed that barrier; the First Amendment’s Establishment Clause seems to work as a deterrent, preventing the Church in America from involving itself as heavily as in Poland. Pro-life groups have an extreme presence in both nations; their histories of political involvement seem to mirror one another. Both rose out of opposition to legislation or judgements that loosened restrictions previously placed on abortions on a national level. Along the support of the Church and its leadership, a large pro-life group was formed with a critical mass of financial and political support. Effectuating minimal change, sects of more radical members split themselves away from the central group andcontinue their advocacy work: all for one cause with different pathways to reach their goal.

V. CONCLUSION

Democracy in its most pure form can only exist if a government is operating on a secular level. The way the Catholic Church is interweaving itself into the very core of Poland’s democratic institutions has already had negative consequences for its citizens. What’s worse is that the Church’s expressed purpose for its governmental incorporation is to embolden itself as a religious structure - not to help its Catholic congregation. A continual, ritual, and more brazen takeover of political functions by religious leadership may lead Poland down paths of authoritarianism or fascism in the aggregate. Regarding abortion, not only are the pro-life movements strengthened by the Church, they often work together to restrict abortion access and limit the number of those that perform them. In the United States, though less directly taking over the democratic process, the pro-life movement along with the Church are working to prevent abortions from being accessible to all persons. The greatest issue at the centerfold of both nations is that every legislation being passed, every judicial opinion being handed down directly impacts each person. The right of a person to terminate their pregnancy is their decision alone; to take away that right is to take away their liberty and the very essence of their bodily autonomy. This does not just impact persons pregnant now; for those that may become pregnant in the future, those who wish to become parents someday, and as citizens who now have less rights than before, these harmful laws and rulings trample on the very basic human rights all persons are born with.