Sex, politics, and religion: the clash between Poland and the European Union over abortion.

• Author: Czerwinski, Alicia

1. INTRODUCTION

   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.

2. BACKGROUND

   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.

   1. Poland's Catholic History

      Poland originated in the 10th century. (12) The intermingling of politics and religion in Poland was observable early on as parishes and castles were established side by side. (13) Poland's predominant denomination is and always has been Catholicism. (14) The image of the "Polish Catholic," however, did not actually emerge until the 17th Century. (15) Poles place an important role on religion, using it to define their national identity (16) and consider being Catholic as "one of the most important features of belonging to the Polish nation." (17) Currently over ninety-five percent of the Polish population is Catholic. (18)

      Poland's tumultuous history has made its ties to the Catholic Church stronger as Poles often relied on the Catholic faith and Church to strengthen their national identity and to increase the country's stability. Poland's geographical location has been the source of much of its political instability. (19) As a vast plain bordered by Russia and Germany, Poland was a "natural arena" for surrounding armies. (20) Its access to the Baltic also made it a highly sought-after country. (21) In its infancy, Poland formed ties to Christianity in 966 A.D. when Prince Mieszko and his court were baptized. (22) The Prince converted to Roman Christianity to reap the political and cultural benefits of the religion and to avoid war with Germany and the Roman Emperor Otto. (23) During the fourteenth century, as Poland became infiltrated by powerful Germans and was threatened by the Teutonic Knights, Poland formed an alliance with the Lithuanian empire. (24) This alliance was formed when the Polish King Jadwiga, a female Christian, (25) married the pagan Grand Duke Jagiello of Lithuania. (26) Although Poland's fate depended on this alliance, their marriage was conditioned on Jagiello's promise to convert to Catholicism. (27) After Jagiello's Lithuanian followers converted to Catholicism, the Jagiello Dynasty was able to conquer the Teutonic Order in 1410 at the battle of Grunwald and Tannenberg. (28) This alliance became the "greatest dynastic concatenation of territory Europe had ever seen." (29)

      In modern times, the Catholic Church has continued to play a major role in Poland. When Polish political institutions were weakened, the Church functioned as a religious institution as well as a "significant national icon." (30) The Church played significant roles to Poles during the 123 year period when Poland lost its independence and also during World War II. (31) It was the period after World War II when Poland became "an overwhelmingly Catholic country." (32)

      Perhaps the Church's most unique and important role in modern times occurred during communism. Unlike other communistic countries in Europe, the Church in Poland retained a significant level of autonomy (33) and retained total freedom to practice. (34) Ironically, Polish citizens were permitted to practice their religion under communism (35) despite the fact that the Church gained strength during this period and contributed to the public's high dissatisfaction of Soviet controlled governmental institutions. (36) The collaboration between Catholic institutions and Polish society increased during the last decade of the communist regime. (37) In fact, the Church helped "unify and consolidate Polish society in the struggle against communism ..." (38) and could claim a "considerable share of credit" in ending the communist regime in 1989. (39)

      The Catholic Church strengthened Poles' resistance against communism by advocating human rights and social justice. (40) Pope John Paul II played a major role in increasing independence and solidarity in Poland, his homeland, in the years immediately preceding the collapse of communism (41) and during visits to Poland urged Poles "to unite against oppression" and to "renew the face of Poland." (42) These pronouncements helped inspire the solidarity movement; solidarity was a movement led by Lech Walesa to promote independent trade unions, freedom of expression, and the right to strike. (43) Solidarity helped create the Soviet Bloc's first legal independent workers' union and evolved into a major social movement for democracy and capitalism, leading to the downfall of communism in Poland in 1989. (44) Walesa recognized the Catholic Church's important role in promoting solidarity and believed "solidarity wouldn't have survived without the Church." (45) At the beginning of the Solidarity movement in 1980, leaflets promoting free trade unions were distributed at both factories and churches. (46) When the shipyard workers led the first strike against communism in Gdansk, Catholic symbols, from the Virgin Mary and Pope, to crosses, were visible everywhere. (47) Solidarity banners also found their way into Catholic Churches, (48) one of the only places Poles could publicly gather. (49) Solidarity's growing influence in Polish society climaxed in 1989 when Solidarity received representation in the lower house of Polish parliament, the Sejm. (50) This event marked the beginning of the Polish Third Republic and resulted in the ultimate collapse of communist Poland. (51)

      After communism, Poland established a parliamentary democracy and in 1997 passed a democratic constitution. (52) Although Poland's political regime changed, the Catholic Church continued to play a role in Polish society and politics. (53) The Church played a significant role in lobbying Poland's new government for antiabortion legislation. (54) The Church's ability to influence the Polish political process demands attention, for despite Poland's high Catholic population, the majority of Poles (sixty percent) oppose its anti-abortion law. The following section explores the history of Poland's abortion law and discusses how the law reflects Catholic beliefs in spite of Poland's new democratic government.

   2. History of Poland's Abortion Law

      Although Poles retained their ability to practice Catholicism during communism, the communist regime guaranteed a woman's right to an abortion on demand. (55) By contrast, in 1993, only four...