Sex, Politics, and Religion: The Clash between Poland and the European Union over Abortion
Czerwinski, Alicia, Denver Journal of International Law and Policy
Poland's anti-abortion law is one of Europe's most stringent. (1) Given the European Union's (EU) pro-choice legislation, Poland's recent accession into the EU in spring 2004 (2) will likely cast its abortion law into the spotlight. The following account foreshadows this clash.
In June 2003, Polish protestors greeted the Dutch ship, "Women on Waves" with eggs and paint bombs, as it entered a Polish port. (3) Women on Waves is a mobile abortion clinic (4) that enters ports in countries that prohibit abortion, boards women, and sails to international waters where physicians perform abortions. (5) The ship typically travels into countries at the request of local women's organizations and gives women the option to receive safe, professional, and legal abortions. (6) Because Women on Waves sails under a Dutch flag, Dutch law, which permits abortion, applies. (7)
Polish women were to be the first group to receive abortions aboard the ship. (8) The ship previously entered an Irish harbor in 2001, but no abortions occurred aboard the ship because Women on Waves failed to obtain an abortion treatment permit. (9) Although a spokeswoman for Women on Waves failed to confirm whether any Polish women actually terminated a pregnancy aboard the ship, the event cast Poland's anti-abortion law into controversy. (10)
The arrival of Women on Waves in Polish port initiated a debate among Polish citizens that foreshadows the clash between Poland's strict anti-abortion law and the EU's pro-choice policy. Although Poland and the EU's abortion policies conflict, reconciliation is possible by including a Protocol to Poland's accession treaty that would guarantee Poland the right to assert its national abortion law over EU law. Reconciliation could also be achieved by asserting moral sovereignty, the use of the political process, including legislation, to make citizens "fundamentally better creatures." (11) However, after further analyzing the conflict and possible methods of reconciling Polish and EU law, this paper concludes that reconciliation would produce a devastating outcome by eroding democracy, women's fundamental rights, and gender equality; therefore, this paper prescribes that Poland adopt the EU's pro-choice policy. As a result of so doing, Polish women will have increased constitutional protections against gender discrimination, and increased protection of privacy. Furthermore, Poland will promote democracy within its borders, and those of the EU.
Section II of this paper examines Poland's tumultuous history. Specifically, this section explores: Poland's long ties to Christianity and the role the Catholic Church plays in Poland; the history of Poland's abortion law under communism and democracy; and Poland's accession into the EU. In Section III, this paper discusses the legal effect of the EU's pro-choice policy. This section demonstrates that although the EU's policy is non-binding, Poland would be bound to adopt the EU's policy as community law through the European Court of Justice's (ECJ) interpretation of case law. Section IV explores how Poland and the EU can reconcile their conflicting viewpoints regarding abortion. Poland can maintain its abortion law by following Ireland and Malta's example of adopting a protocol to its accession treaty. Poland can also exercise its abortion law under the principle of moral sovereignty. Alternatively as already stated above, this paper suggests in Section V and concludes in Section VI by recommending that Poland adopt the EU's pro-choice policy given the devastating effects the current anti-abortion law has on democracy, women's fundamental rights, and gender equality.
In order to understand the conflict between Poland and the EU's abortion laws, it is necessary to first examine Poland's Catholic history and the history of Poland's abortion law.
A. Poland's Catholic History
Poland originated in the 10th century. …