Sydney Calkin & Monika Ewa Kaminska. Feminist Review. Volume 124, Issue 1. March 2020.
Introduction
Before Ireland’s 2018 referendum and abortion law reforms, Ireland and Poland were commonly pictured as the ‘last bastions’ of the pro-life movement in Europe. In the last three decades, as Ireland maintained and Poland introduced extremely restrictive abortion laws, they did indeed constitute deviant cases across the European Union, where other countries have progressively liberalised their abortion regulation since the 1960s: Britain (1967), Finland (1970), France (1975), Greece (1986), Germany (1995), Portugal (2009) and Spain (2010), among others (see Nebel and Hurka, 2015). At the same time, Ireland and Poland have seen large-scale pro-choice mobilisations and public protests, triggered by political events, judicial rulings and high-profile cases of death and injury from lack of abortion access. Moreover, both countries have experienced high levels of non-compliance with their abortion regulations, with thousands of women every year travelling abroad to access abortion or obtaining clandestine abortions at home. However, while in Ireland pro-choice mobilisation and widespread non-compliance were important factors in the process that led to the 2018 referendum and reforms, not only has Poland maintained its restrictive regulation in the face of mobilisation and non-compliance, but efforts to further restrict its abortion regulation have intensified.
These different policy outputs, occurring despite similar mobilisation and contestation processes, present a puzzle for feminist scholars and activists. We address this conundrum and contribute to the feminist literature on abortion by combining insights from morality policy scholarship and actor-centred approaches to policymaking. Accordingly, our theorisation of the process of abortion policy change accounts for the role of churches as societal veto players. We demonstrate that the divergence in abortion policies between Ireland and Poland is best explained with reference to the Catholic Church’s power to veto abortion reform in the two countries.
In the next section, we outline our conceptual framework, which augments the literature on moral policy reform with an account of the veto power of churches. We define the categories that structure the remainder of the analysis: 1) social mobilisation against, and 2) non-compliance with, restrictive abortion laws, and 3) internal resources of religious actors as well as the institutional setting and actor constellations within which they operate, which define their ability to veto abortion reform. In the following sections, we employ these categories in the two country cases. We discuss the historical similarities and contemporary differences in the moral authority and political influence of the church, and then focus on the last three decades of abortion reform attempts, accounting for pro-choice mobilisation and non-compliance, and the Catholic Church’s efforts to counter these reform pressures in Ireland unsuccessfully and in Poland so far with more success. We conclude by considering the implications of this analysis for feminist and pro-choice activism.
Morality policy and abortion reform
The regulation of issues like abortion, euthanasia, assisted reproduction and capital punishment, among others, is generally stipulated with reference to moral values, rather than distributive claims. As such, these are commonly referred to as ‘morality policies’ (Knill et al., 2015, p. 1). Morality policies attract a high level of public participation, because they are seen as non-technical and related to individual moral principles (Knill, 2013). Abortion is a quintessential morality policy issue, with the power to drive conflict on other morality policies and spark enormous controversies with small changes in its regulation (Engeli et al., 2012, p. 17). Here, we use the morality policy literature to analyse the way that abortion policies are implemented, contested and reformed. In order to understand continuity and change on morality policy reform, cross-country comparisons on a single issue can yield insights with wider applicability (see Engeli et al., 2012; Knill, 2013; Knill et al., 2015). Accounting for the divergence between Ireland’s and Poland’s abortion policies and the institutional arrangements and actor constellations that obstruct reform can offer relevant information for reproductive and sexual rights struggles in other political contexts.
Because morality policies are rooted in conflict over first principles, they lose legitimacy when they become incompatible with public values (Knill et al., 2015). Morality policies are delegitimised by two mechanisms: ‘voice’, in which social movements and social mobilisation rise up to challenge the policy, and ‘exit’, when people stop complying with a policy (see Hirschman, 1970). Morality policy change is therefore likely to be induced by a combination of cultural pressure and widespread non-compliance (Knill et al., 2015, p. 52). This process is evident in the trajectories of abortion policies in Europe: they have generally moved towards permissiveness, driven by changing lifestyles, strong feminist social movements, pressure caused by incidences of unsafe abortion, government efforts to reduce abortions without banning them and women’s ability to access abortion by travelling; major reversals have been rare (Nebel and Hurka, 2015; de Zordo et al., 2016). Abortion reform has generally taken place earlier in Protestant countries, but most European Catholic countries have also liberalised their abortion laws, albeit at a slower pace (Minkenberg, 2002; Engeli et al., 2012; Knill et al., 2014; Grzymala-Busse, 2016).
Despite its laggard status on liberalisation of abortion, Ireland’s recent experience aligns with the model of policy reform that Knill et al. (2015) propose: its abortion ban lost legitimacy as its harmful social effects became more pronounced and publicly discussed, and the abortion status quo was destabilised by the voice of pro-choice activism that mobilised civil society, as well as the widespread refusal to comply with the law that is evident in the extent of abortion travel abroad and self-managed abortion inside Ireland. Poland, similarly, has experienced low legitimacy of its abortion law, visible in the mass mobilisation against efforts to further restrict the abortion regulation, as well as a large domestic ‘abortion underground’ and informally established pathways for abortion travel abroad (Mishtal, 2015). However, in Poland the public delegitimisation of its abortion law has not resulted in liberalisation; although massive protests against further restrictions have prevented proposed anti-abortion bills from becoming law, there are persistent efforts to introduce further restrictions and little support among legislators for liberal reforms (FWFP, 2018).
What explains the difference in policy outputs here? The comparison of these cases shows that the morality policy framework of Knill et al. (2015) is missing an important component that can explain the barriers to liberalisation in Poland: we argue that it is the persistent political influence of the Catholic Church, where the church exerts an effective veto power over policy and can obstruct abortion liberalisation even in the face of its delegitimisation, which must be taken into consideration. This component is especially important in countries like Ireland and Poland, where the Church has historically exerted enormous political and cultural influence because of its relationship to national identity and its claim to the role of ‘protector of the nation’ (Grzymala-Busse, 2015, 2016).
We propose to augment the above framework from Knill et al. (2015) with insights from Simon Fink (2009), who shows that religion, rather than featuring as ‘cultural background’ (see Castles, 1994), ‘can be conceptualized in an actor-centred way’ and that churches can act as societal veto players in everyday policymaking (Fink, 2009, pp. 78-80). The extent to which churches can exercise their veto depends, first, on their internal power resources: their ability to mobilise adherents to take political actions, the intensity of their preferences on a particular issue, their internal cohesion and the discipline of their main representatives. Second, institutional setting and actor constellations play a role. Thus, churches’ ability to exercise their veto is defined by available veto points, like access to executive and legislative bodies and other tools like referendums (see Immergut, 1992). It is also shaped by church-state relations, including ‘legal provisions governing the role of the church’, ‘cultural assumptions about the role of religion in public life’ and the power of religious parties (Robbers, 2005; Fink, 2009, p. 84). This perspective on the Catholic Church’s veto power provides an important complement to Knill et al.’s (2015) theory of morality policy change, because it explains the persistence of a regulative status quo in the face of mass mobilisation against, and widespread non-compliance with, a morality policy. In the following sections, we employ these categories to explain the different abortion policy outputs of Ireland and Poland and demonstrate the disparity in political power of the Catholic Church as the key factor therein.
Ireland
The erosion of the Catholic Church’s moral monopoly
The Catholic Church in Ireland has historically played an important role in national identity, because it was seen as a ‘protector’ of Irishness under British colonial rule. At a symbolic level, Irishness and Catholicism became fused in opposition to Britishness and Protestantism (Grzymala-Busse, 2015; Kozłowska et al., 2016). In the early decades of the state, the Church consolidated its power through direct political influence on governing parties; interventions in the policymaking process; and near-autonomous control over education, health and welfare administration (Inglis, 1998; Kissane, 2003). The Church’s moral authority and institutional access to policymakers meant it was able to effectively shape the political agenda by vetoing policies that it saw as morally objectionable (Inglis, 1998; Garvin, 2005). The hold of the Catholic Church over Irish politics fractured in the 1960s, when the state no longer saw its legitimacy as dependent on its relationship to the Church and sought to reform some domains that had been under church control (Grzymala-Busse, 2015, p. 75). While the political and institutional role of the Catholic Church changed—evident in the 1972 referendum to remove the constitutional reference to its ‘special position’, which passed with 84.4 per cent support—the Church still exercised cultural influence among Irish citizens through its control of the education system and its ability to frame political debates on moral policy issues (Kissane, 2003).
Throughout the 1990s and 2000s, scandals surrounding the Irish Catholic Church emerged: sexual abuse by priests, incarceration of vulnerable young people and unwed mothers and their children, secret and illegal adoption programmes and neglect in orphanages were laid bare in public debates and official inquiries (Inglis, 1998, 2003). These events compounded the growing fragmentation of Irish-Catholic identity. Although most Irish people continued to identify as Roman Catholics, by 1999 only 25 per cent expressed a great deal of confidence in the Church (Breen and Reynolds, 2011). Irish Catholics, including regular churchgoers, reported that they were less inclined to rely on Church guidance to make choices about their sex and family lives (Inglis, 2007). Data on religious identity in Ireland today shows a continual decline in numbers of Catholics and the steady growth of those identifying with ‘no religion’ (CSO, 2017). Ireland continues to report high levels of religiosity and church attendance compared to other Western European countries (Pew Research Centre, 2018), but the political power and moral authority of the Catholic Church have drastically diminished.
The Catholic Church and the 8th Amendment
The 8th Amendment, inserted into the Irish Constitution in 1983, committed the state to ‘vindicate’ the ‘right to life of the unborn’, in relation to the ‘equal right to life of the mother’ (see de Londras and Enright, 2018). Although abortion was already outlawed in Ireland, anti-abortion conservatives sought a constitutional amendment because they feared that legal abortion would be introduced through the courts (O’Reilly, 1992). The Pro-Life Amendment Campaign launched its campaign for an anti-abortion amendment with direct and vociferous support from the Catholic Church hierarchy (Barry, 1988; Kissane, 2003; Connolly and O’Toole, 2005; McAvoy, 2015). Advocates of the proposed 8th Amendment drew on Catholic and nationalist themes to associate anti-abortion politics with Irish identity, moral distinctiveness and nationalist sentiment (Fletcher, 2001; Smyth, 2005). The referendum passed with 66.9 per cent of the vote, albeit with a turnout of 53.7 per cent.
Although the 1983 referendum delivered the Church’s preferred outcome, it took place amidst the growing fragmentation of its moral authority in Ireland. By the mid-1980s, Ireland was undergoing a significant transformation driven by urbanisation, industrialisation, mass media and European integration (Andersen, 2010). Gender relations and family structures were changing too, as growing numbers of women entered the workforce and higher education, and social attitudes surveys showed a move away from traditional gender roles (Inglis, 1998, pp. 238-240). The 8th Amendment regime on abortion became increasingly incompatible with the values of the Irish population: this emergent clash was made evident at regular intervals throughout the 1990s and 2000s (Connolly and O’Toole, 2005).
Within ten years of its passage, the 8th Amendment became the subject of public outcry and social mobilisation against it. In 1992, a teenage victim of rape (known as ‘X’) was blocked by the High Court from obtaining an abortion in England. The Supreme Court later reversed this decision on the basis that her suicidality meant the pregnancy presented a risk to her life, as distinct from her health (see de Londras and Enright, 2018, pp. 4-5). The state’s treatment of X and her parents sparked public outrage and protest (Smyth, 2005). Three referendums held in 1992 added constitutional amendments that reflected changing public attitudes to abortion: these amendments established the freedom to travel abroad for abortion and the freedom to access information about abortion abroad, and upheld risk of suicide as grounds for legal termination of pregnancy (de Londras and Enright, 2018; Enright, 2019). A further referendum in 2002 again sought to remove suicide as a grounds for life-saving abortion; it was narrowly defeated, with 50.4 per cent voting against.
As public dissent over Ireland’s restrictive abortion laws grew, so did public willingness to speak out about the personal toll of the 8th Amendment. By the mid-2000s, women were increasingly sharing personal abortion stories in public venues and the growing pro-choice movement began to call for ‘free, safe and legal’ abortion rather than just legislation for terminations in limited circumstances (Doherty and Redmond, 2015). Widespread public resistance to Ireland’s abortion laws erupted after the 2012 death of Savita Halappanavar in a Galway hospital: according to her husband, Ms Halappanavar was told by a nurse she could not have an abortion because Ireland was a ‘Catholic country’ (Lentin, 2013). In the aftermath of her death, 10,000 people marched in Dublin with banners that read ‘NEVER AGAIN’ (Doherty and Redmond, 2015). From 2012 onwards, the 8th Amendment was increasingly at odds with public opinion (Reidy, 2020) and subject to vocal resistance from civil society and an emergent group of pro-choice politicians and public figures (Enright, 2019). Public testimony about abortion experiences became more widespread: parents who had experienced pregnancies with fatal foetal anomalies spoke out during the passage of legislation that forbid abortion in their circumstances (Bacik, 2015; Enright, 2019); women began to share stories of their experience of abortion travel (Quilty et al., 2015); and artists and activists staged protests through public artworks (Enright, 2020, this issue). This public outcry and the perceived shift in public opinion persuaded some centrist politicians to endorse abortion reform (McDonnell and Murphy, 2019).
In Ireland, non-compliance with the abortion policy has been translated into literal ‘exit’ from the state and its legal regime. For example, while the Irish government reported that twenty-five legal abortions occurred inside Ireland in the year 2016, the UK Department of Health reported that that 3,265 women living in Ireland obtained abortions in English clinics in that same year (Cullen, 2017; IFPA, 2017). From the 1980s through to the present day, diasporic and transnational pro-choice activist groups have provided information, funding and infrastructural and emotional support for abortion travel to England (Duffy, 2020, this issue). Furthermore, from 2008 onwards, access to illegal abortion pills inside Ireland has also become a significant form of exit from Ireland’s abortion ban (Sheldon, 2016). While in 2001 an estimated eighteen women per day left Ireland for abortion abroad, growing access to illegal pills at home had reduced the number of abortion travellers by half at the time of the 2018 referendum (Sheldon, 2016; IFPA, 2017).
The progressive delegitimisation of Ireland’s abortion law was observable in public expression of dissatisfaction and widespread non-compliance. This pressure, combined with legal obligations from the European Court of Human Rights’ rulings and discontent with the Protection of Life During Pregnancy Act 2013 (2013), led abortion to become an important issue in the 2016 general election and resulted in Fine Gael’s commitment to hold a Citizens’ Assembly, eventually followed by a referendum on the 8th Amendment (Field, 2018; see de Londras, 2020, this issue). When the referendum was held in May 2018, the electorate voted to repeal by 66.4 per cent to 33.6 per cent, with a turnout of 64.13 per cent (Field, 2018). Exit polls from the referendum revealed that for 62 per cent of voters the ‘right to choose’ was the most important issue in their vote and that 75.2 per cent had ‘always’ known how they would vote, while for only 12 per cent their religious views had been the most important factor in their vote (McShane, 2018, p. 621). The 8th Amendment regime lost legitimacy and became untenable as it came into growing conflict with public values, provoking action among a reluctant political class.
Why was the Irish Catholic Church unable to prevent the repeal of the 8th Amendment in 2018? Since the 1970s, the Church has relied on its institutional control in education, health and social welfare, rather than on direct forms of institutional access, to influence attitudes (Grzymala-Busse, 2015). Its loss of moral authority undermined its ability to mobilise its adherents and translate its role in educational institutions into electoral outcomes (Knill and Preidel, 2015). After the 1986 referendum that upheld the constitutional divorce ban, every subsequent referendum on a morality policy issue has resulted in the outcome opposed by the Catholic Church: abortion (1992 and 2002), divorce (1995) and same-sex marriage (2015). On abortion, referendums and opinion polling indicated that the public favoured more permissive policies, but political stasis meant that legislation to clarify the availability of abortion under the 8th Amendment was stalled until 2013 (Reidy, 2020). At that point, the Catholic Church unsuccessfully sought to intervene and block the legislation: the Catholic hierarchy undertook ‘aggressive political lobbying’ efforts against the law; bishops publicly declared their opposition; a Cardinal threatened Catholic politicians with denial of Communion; and the Church promised to raise a constitutional challenge to the new law (McAvoy, 2015, p. 60). By contrast, in the 2018 referendum, the Catholic hierarchy sought to avoid the impression that it was intervening directly in the process. The Church did seek to mobilise adherents by delivering pro-8th Amendment messages through masses, vigils and letters to congregants (Scriven, 2020). However, in public-facing settings, it relied on political campaign surrogates and lay organisations that drew on claims to medical and legal (rather than religious) authority (Enright and de Londras, 2020; Scriven, 2020).
Moreover, the Irish pro-life movement (of which the Catholic hierarchy and laity are important parts) has been divided since the early 1990s on the question of what constitutes a permissible life-saving abortion (Smyth, 2005). In the run-up to the 2018 referendum, the campaign against repeal was split into different groups who occasionally clashed over messaging and strategy (Field, 2018; Scriven, 2020). Some of the most prominent actors in the campaign, like the Iona Institute, are affiliated with the Catholic Church; however, rather than using religious anti-abortion messages, the anti-abortion campaign argued that the proposed law that would follow on from repeal was ‘too extreme’ for Irish voters (Field, 2018, p. 621). The No campaigns generally used secular and nationalist narratives that positioned the 8th Amendment as the last remaining mechanism to preserve Ireland’s moral distinctiveness (Browne and Nash, 2020, this issue).
Despite its failure to exercise an effective veto over abortion reform and to defeat repeal, the Church and its associated political groups still seek to challenge Ireland’s new abortion regime, in what one anti-abortion politician called ‘a new phase of [the movement’s] work’ (Mullen quoted in Enright and de Londras, 2020, p.66). Anti-abortion politicians sought to add numerous restrictions during the debates on the new law, none of which were retained, but which demonstrated that the movement now aims to enact its agenda through stalling legislative debates, introducing extreme anti-choice measures to control the discourse and engaging in the stigmatisation of abortion seekers (Enright, 2018; Enright and de Londras, 2020). As it moves away from explicitly religious messages, the Irish anti-abortion movement reflects wider changes in the global anti-abortion movement, whose arguments are increasingly framed in terms of foetal rights and ‘women-protective’ restrictions (Browne and Nash, 2020, this issue).
Poland
Catholicism and nationalism intertwined
In Poland, Catholicism is intertwined with nationalism, whereby religious and national boundaries coincide (Brubaker, 2012, p. 9). During the partitions of Poland between Russia, Prussia and Austro-Hungary (1795-1918), Catholicism emerged as a unifier of the nation in opposition to German Protestantism and the Russian Orthodox Church (Zubrzycki, 2006), leading to the ‘ethnic-centred fusion of “the Pole” and “the Catholic” into a single Polish Catholic national identity’ (Kozłowska et al., 2016, p. 831).
After the Second World War, with the communist regime ‘imposed from above and from abroad’ by the Soviet Union (Zubrzycki, 2006, p. 60) and with Catholics exceeding 90 per cent of the population, the Catholic Church was again perceived as ‘the only legitimate institutional counterpart to the state’ representing the interests of Poles (Kozłowska et al., 2016, p. 832; see Zubrzycki, 2006, p. 60). While during the first decade of communist rule the Church had to fight for its institutional survival (Anderson, 2003, p. 144), in the 1970s and 1980s it gained political strength as a supporter of the anti-communist opposition (Caytas, 2013, p. 66) and mediator between the anti-communist Solidarity trade union and the regime (Zubrzycki, 2006, pp. 71-72). Its political power grew further following the election of a Pole as Pope John Paul II in 1978.
In 1989, Church officials took part in the Round Table talks between the Solidarity-led opposition movement and the communist government that ushered in democracy in Poland. The post-1989 governments have since displayed a ‘sense of inevitability’ towards accommodating the Episcopate’s political demands (Caytas, 2013, p. 66). Even before adopting its post-communist constitution in 1997, in 1993 Poland signed a concordat with the Vatican that ensured the state’s substantial financial support of the Church, effectively giving it control over moral and sexual education, and undermining the secular character of the Polish state (Heinen and Portet, 2010, p. 1009). To avoid challenges to the concordat, the new constitution includes only a mention of the ‘mutual impartiality’ of church and state, rather than a provision for their formal separation (Konstytucja Rzeczypospolitej Polskiej [Constitution of Poland], 1997). In the following decades, the Church has continued to ‘formulate norms of acceptable behavior in the political arena’ and to exert ‘palpable authority’ on political parties across the whole political spectrum (Heinen and Portet, 2010, p. 1011).
The convictions that the Catholic Church in Poland is a guarantor of national identity and that its role extends beyond religious functions are strongly embedded across Polish society, including among left-leaning Poles. This ‘Polish paradox’ translates into acceptance of the Church’s interference in the functioning of the state by conservative but also left-wing parties (Chałubiński, 1994). The institutional context offers a plethora of access and veto points for the Church, binding politicians across the political spectrum into very close state-church relations. In the past three decades, no political party in Poland has dared to address the financial, sexual and abuse scandals in the Church that have regularly resurfaced in media reports. The institutionalisation of ‘an ethnic-Catholic vision of the nation’ (Kozłowska et al., 2016, p. 834) has materialised through public policies, most visibly in the field of reproductive rights which have been restricted to comply with the Church’s perception of woman as ‘a mother (real or potential) whose body should serve the national aims of procreation’ (Heinen and Portet, 2010, p. 1012).
The ‘abortion compromise’
After regaining independence in 1918, Poland inherited abortion bans from its previous rulers. In 1932, despite the Catholic Church’s opposition (Gaudyn, 2011), the new Polish criminal code allowed for abortion in cases of health risk for the woman and pregnancies resulting from a criminal act (Caytas, 2013, p. 65). In the early post-war years, in an attempt to increase fertility rates after heavy population losses, the new communist regime—following the Soviet lead—restricted access to legal abortion by introducing additional procedural requirements. Women reacted to these restrictions with a massive ‘exit’: between 300,000 and around 1 million illegal abortions were performed annually (Czajkowska, 2012, p. 146). A small number of abortions were performed ‘privately’ by doctors at very high prices accessible to few; a large majority were carried out by untrained individuals outside of healthcare facilities, often in appalling hygiene conditions, frequently resulting in morbidities and fatalities (ibid., p. 137). Although the ‘voice’ of women was muffled due to the repressive character of the regime, critiques of the situation could still be detected in the media (ibid.).
The liberalisation of abortion in the Soviet Union in 1955 paved the way for abortion reform in Poland and other satellite countries between 1956 and 1957 (Czajkowska, 2012, p. 145). The 1956 Polish law introduced the right to abortion in cases of ‘difficult living conditions’, albeit requiring the approval of two doctors. In 1959, due to concerns about overpopulation in a failing communist economy, an executive ordinance removed the requirement of doctors’ approval and effectively offered access to upon-request abortion (Kula, 2012, p. 9). This liberalisation was strongly criticised by the Church and Catholic activists (Czajkowska, 2012, pp. 153-168), but in a situation where the Church’s very institutional existence was threatened, its veto power was too limited to halt the reform. It was not until the early 1980s that the Church’s ‘non-religious, political functions’ reached their height (Nowicka, 1996, p. 22). Together with emerging pro-life organisations, it launched anti-abortion campaigns (Jankowska, 1991). The communist government yielded to the Church’s demand to restrict access to abortion by introducing additional procedural requirements (Caytas, 2013, p. 66).
Despite the Church’s condemnation, abortion became the main method of family planning during the communist era (Caytas, 2013, p. 66). Clearly, although Poles rallied behind the Church’s anti-communist agenda and 95 per cent identified as Catholics, they did not follow the Church’s moral teachings on abortion practice. However, it was easier for the Church to challenge the abortion regulation once the regime started to crumble because it had been liberalised in a top-down manner by the regime, based on ‘an instrumentalist and needs-based materialist approach’, rather than ‘recognition of women’s autonomy and right to sexual and reproductive self-determination’ and without social mobilisation supporting it (Heinen and Portet, 2010, p. 1012).
The collapse of the communist regime in 1989 turned the Church into a powerful veto player, allowing it to obtain ‘very substantial concessions’ from the newly democratic state (Caytas, 2013, p. 66). A draft bill prepared by the Episcopate and completely banning abortion was submitted to the new parliament, now dominated by anti-abortion Christian Democrats, whom the Head of the Polish Episcopate contacted directly on the issue (Szelewa, 2016, p. 749). The Episcopate’s draft bill was also supported by Solidarity’s 1990 congress. When the Solidarity Women’s Committee protested against that stance, it was disbanded (Chełstowska, 2009). Meanwhile, access to abortion was already being restricted through extra-legislative means. A 1990 Health Ministry regulation introduced a ‘conscience clause’ allowing doctors to refuse to perform abortions, an option which was taken up by a growing number of doctors ‘yielding to social, clerical and media pressures’ (Caytas, 2013, p. 68). Two years later, a new Code of Medical Ethics adopted by the National Chamber of Doctors (led by a former leader of the Catholic Association of Doctors) defined performing an abortion for ‘social’ reasons as a violation of medical ethics, possibly leading to suspension of medical licence (NIL, 1991).
Public protests led by new women’s organisations erupted against the proposed abortion ban of 1989. Almost 1.3 million signatures were collected in support of a referendum on abortion and polls indicated that 90 per cent of voters would oppose a total ban on abortion, with 53 per cent supporting a ‘social’ model. However, under pressure from Polish bishops, the legislature and the executive rejected the referendum initiative (Chełstowska, 2009; Szelewa, 2016), thus silencing a very audible public ‘voice’. In 1993, the Act on Family Planning became law: it made termination of pregnancy illegal except in three circumstances: 1) threat to life or health of the woman; 2) high probability of a severe or life-threatening foetal defect; and 3) pregnancy resulting from an unlawful act (until the twelfth week) (Ustawa z Dnia 7 Stycznia 1993 of Planowaniu Rodziny, Ochronie Plodu Ludzkiego I Warunkah Dopuszcczalnosci I Przerywania Ciazu [Act on Family Planning, Protection of the Human Fetus, and Conditions for Pregnancy Termination], 1993). Performing illegal abortions is punishable with up to two years of incarceration, and forcing a woman to undergo abortion is punishable with up to eight years; women obtaining illegal abortions are not penalised. The Act is known as the ‘abortion compromise’ in Poland because it accepted the Episcopate’s will without completely banning abortion. It ‘ensued from […] the winning opposition’s “debt” towards the Church’ for its role in dismantling the communist regime (Król and Pustułka, 2018, p. 370). The 1993 Act is still in place today, despite numerous attempts to both restrict and liberalise it in the following years. Every step of this trajectory, key moments of which are discussed below, has been influenced by the Church, which has consistently pushed for further restrictions and thwarted any liberalisation.
The first liberalisation attempts were authored by the left-wing party that tried to amend the 1993 Act in 1994 and 1996 through the introduction of a socio-economic indication. President Lech Walesa vetoed the 1994 amendment in order to avoid a conflict with the Church; the 1996 liberalising amendment was adopted when a left-wing party came to power (Caytas, 2013). This 1996 amendment was described by the Church as anti-Christian, anti-Polish and inhumane (Zielińska, 2000, p. 34). Anti-abortion organisations proceeded with street protests and public prayers led by Church representatives who openly equated abortion to the Holocaust, Nazi eugenics policies and infanticide (Szelewa, 2016, p .751), and employed nationalist framing by quoting John Paul II’s words: ‘A nation that kills its own children is a nation without future’ (Zielińska, 2000, p. 37). A few days before a visit of the Pope to Poland in 1997, the Constitutional Tribunal declared the 1996 amendment unconstitutional (Szelewa, 2016, p. 752). After the left-wing party’s return to power in 2001, the government was reluctant to tackle the abortion law out of fear of the Church’s retaliation in the form of a veto on the upcoming referendum for Polish EU accession (Caytas, 2013).
The return to power of the populist-nationalist Law and Justice party in 2015 unleashed anti-abortion lawfare; attempts to ban abortion have intensified. In 2016, the parliament accepted a bill for further proceedings that proposed to ban abortion, criminalise doctors, jail abortion-seekers and effectively halt many antenatal diagnostics (Król and Pustułka, 2018, pp. 373-374). A liberal draft bill countering these measures was rejected. In reaction, in October 2016 between 100,000 and 200,000 people across the country participated in the ‘Black Protests’ and ‘Women’s Strike’ against an abortion ban (ibid.). These protests were largely digitally self-organised by veteran activists and newly politicised young people; despite assumptions that Polish civil society was NGO-ised and unable to mobilise, they brought thousands to the streets in large cities and small towns (Korolczuk, 2016). They employed memes and hashtags to spread the online impact of the mobilisations, but they also reclaimed nationalist symbols and slogans to claim the place of Polish feminism in the national history (ibid.). In support of the protesters, 17 per cent of women and 6 per cent of men in Poland wore all black in public (CBOS, 2016a) and solidarity marches took place across Europe (Król and Pustułka, 2018). Eventually, the anti-abortion draft bill was rejected.
In 2017, another draft bill advocating abortion on-demand until twelfth week was rejected. At the same time, right-wing MPs requested a ruling from the Constitutional Tribunal on the constitutionality of the 1993 law allowing for abortion in the case of foetal abnormalities, while yet another draft bill restricting access to abortion in the case of foetal abnormalities was conditionally accepted for further work and is still pending (FWFP, 2018).
The Catholic Church in Poland has been directly and actively involved in the legislative process and in restricting access to abortion in extra-legislative ways, with Church officials and Catholic activists showing strong cohesion in their uncompromising anti-abortion stance (Obirek, 2011). Since the early 1990s, a Church-led change in the public discourse on abortion has replaced the words ‘pregnant woman’ with ‘mother’ and ‘foetus’ with ‘unborn or conceived child’ in the media, official documents, penal code and national legislation (Heinen and Portet, 2010; Król and Pustułka, 2018). Anti-abortion activists and Church officials have referenced John Paul II’s opposition to abortion and contraception (Obirek, 2011; Mishtal, 2015) and drawn support from his meetings with anti-abortion MPs and activists in Poland (Wielowieyska, 2018).
The Pope’s teaching has resonated with Polish nationalist and populist groups who portray abortion reform as part of a foreign, elite project to transform Polish society through the enforcement of a feminist ‘gender ideology’ promoted by the Polish women’s movement (Graff and Korolczuk, 2017). This demonisation of Polish feminism is part of a broader right-wing cultural movement that pictures Poland as the ‘last frontier’ of Christian morality, besieged by secular liberal values, and which imagines feminism, sex education, LGBT equality and multiculturalism as part of a conspiracy by ‘neo-Marxist European Union bureaucrats’ to destroy Polish culture and Catholicism (ibid.).
The regulative and practical restrictions have dramatically reduced the number of legal abortions in Poland, which dropped from 105,333 in 1988 to 685 in 1993 and further fell to 159 in 2002 (with a brief interlude of 3,173 in 1997 following the social indication amendment), and later increased to stabilise at around 1,000 since 2015 (CSIOZ, 2018). Due to pressure from the Church and the Catholic media, doctors often refuse to terminate pregnancies by referring to the conscience clause or delaying testing until the time limit has been exceeded; those who perform abortion and antenatal screening are blacklisted (Mishtal, 2015; Szelewa, 2016, p. 755). Consequently, women are frequently denied abortions even if they meet the conditions specified by the law. A number of such cases have resulted in successful litigation against the Polish government at the European Court of Human Rights.
Although 95 per cent of Poles continue to identify as Catholic, the Church’s doctrine on abortion has been ignored in practice: this is evident in widespread non-compliance with the current policy and a massive ‘exit’ of women to the domestic abortion underground, self-managed abortion with pills or abortion travel abroad (Chidgey, 2011; Mishtal, 2015). Feminist organisations estimate that between 80,000 and 190,000 terminations are obtained annually (Grzywacz et al., 2013). Moreover, despite its massive influence on the politics, policies and public discourse about abortion, and its mobilisation power over its steadfast supporters, the Church’s influence on the ‘voice’ of the society at large has not been able to stop the massive protests or to alter the relatively stable public opinion on the right to abortion: since 1992, around 80 per cent of surveyed respondents have consistently expressed support for legal abortion in cases of health or life threat to the woman, or pregnancy resulting from a criminal act. Where the impact of Catholic doctrine is visible is in the falling levels of public acceptance of abortion in the case of foetal abnormalities (from 71 per cent to 60 per cent) or a woman’s difficult socio-economic situation (from 47 per cent to 20 per cent) between 1992 and 2016 (CBOS, 2016b).
The resistance of Polish governments of various ideological positions to introduce progressive reform, as they continue to see their survival as dependent on the Church’s favour, points to a serious challenge for the Polish pro-choice movement: despite the massive non-compliance, mass mobilisations like the Black Protests and successful efforts to oppose further restrictions on access to abortion, the Catholic Church continues to exert institutional power to exercise its veto on reforms that would liberalise the 1993 law.
Feminist activism in the context of morality policy and church-state relations
In this article, we have argued that a comparison of abortion policy in Ireland and Poland should not start from the question of why Ireland, but the question of why not Poland? Both have faced widespread pro-choice mobilisation and non-compliance with their extremely restrictive laws: under these conditions, such regulation is likely to become unsustainable and precipitate reforms, as in Ireland in 2018. We therefore sought to explain the difference between these two countries’ outcomes on abortion policy, arguing that the key explanatory factor is the difference in the ability of the Catholic Churches in Ireland and Poland to exercise veto power in the policymaking process. In Poland, the persistent influence of the Catholic Church on abortion policy and practice materialises through direct access to the policymaking process and a symbiotic relationship between the Church and mainstream political parties; this gives it an effective veto on morality policy change. In contrast, the Irish Catholic Church has lost the institutional and political influence it held decades ago, and it lacks the power-broker position needed to block abortion reform. The institutional position of the Catholic Church and its power to exercise a societal veto over reform best explains the difference in policy outcomes in these two countries.
In both Ireland and Poland, the respective women’s movements have positioned themselves in opposition to the Catholic Church, identifying church influence as a source of oppression for women and calling for a clearer separation between church and state in policymaking, albeit with mixed results (de Zordo et al., 2016). Our analysis indicates that a Catholic Church with institutional power poses a significant obstacle to formal policy reform on abortion despite the opposition of feminists. What does this analysis mean for those who seek progressive, pro-choice reform? We need not conclude with pessimism about the futility of feminist action where the Catholic Church retains direct political power. In both Ireland and Poland, the mobilisation of national and transnational pro-choice networks has disrupted the implementation of restrictive abortion laws. Even where formal policy change is obstructed and delayed, the pro-choice movements in these countries have, on the one hand, mobilised in large numbers to give voice to public dissatisfaction with current and proposed abortion laws. On the other hand, they developed sophisticated networks to facilitate non-compliance with the state’s abortion laws, exiting the policy contexts in literal and metaphorical ways. Domestic abortion access outside of the law has emerged through ‘underground’ clinics (in Poland) and the circulation of medication abortion pills (in Poland and Ireland) (Mishtal, 2015; Sheldon, 2016). Abortion travel abroad has been actively facilitated by transnational networks of pro-choice activists who assist women to travel to other jurisdictions (see Ciaputa, 2019; Duffy, 2020, this issue). The sheer volume of non-compliance by abortion-seekers in these countries demonstrates the extent of the continued demand for abortion and the availability of abortion outside of state-prescribed legal pathways. Thus, a strategy of organised non-compliance has challenged the status quo and made visible the gulf between abortion policy and public opinion on the matter.
Moreover, the widespread non-compliance in Ireland and Poland is characterised by another similarity: in spite of the existence of harsh laws with possible criminal penalties for clandestine abortion, state authorities have largely chosen to respond to non-compliance by turning a blind eye. As growing numbers of women in Ireland purchased and used illegal abortion pills, no prosecutions were brought against any individuals who induced their own abortions in clandestine settings (Sheldon, 2016). Similarly, despite the well-known existence of private medical clinics where abortions are performed in Poland, prosecutions of doctors who perform illegal abortions are very rare there (Mishtal, 2015). In both contexts, authorities have proven reluctant to close the ‘escape valve’ of clandestine abortion and abortion travel or to press charges. This political reluctance to ‘crack down’ on clandestine abortion might signal opportunities for pro-choice campaigns to build new political alliances. This point requires further comparative research to better understand the relationship between different modes of feminist pro-choice activism, institutional political configurations and abortion reforms.