Poland’s 2020 Abortion Law and the Failure of the European Union’s “Community of Values”

Protest against Poland’s restrictive abortion law in the city of Gdańsk on October 24
Cover Photo: Lukasz Katlewa, 2020

By STANISŁAW NAKLICKI,
1st-year Student in the Middle East-Mediterranean Campus of MENTON

On behalf of the student association European Society

Originally published in Le Zadig, student-run publication of the campus of Menton and co-founding publication of Sciences Political Review, in November 2020


The Treaty on the European Union, one of two treaties providing a constitutional basis for the functioning of the EU, is a curious, albeit hopeful case. Unlike other documents of its kind, it names seven common values (respect for human dignity and human rights, freedom, democracy, equality and the rule of law) as the only founding element of the constituted entity, as opposed to common language, national identity, and history in other cases. This, in writing, fulfills the ideal of peoples getting together solely because of shared beliefs and promises a region actively fighting with the religious and nationalist bigotry. However, the enforcement of these values has been left at the discretion of the nation-states, and their often-conservative governments, with underwhelming effects.

On 22nd October, the Polish Constitutional Court ruled it unconstitutional to perform an abortion in virtually all instances, except for pregnancy resulting from rape or incest or threatening the mother’s health. It’s never redundant to reiterate that this is a serious breach of human rights. Moreover, it violates one of the values the EU claims to protect: gender equality. And even though one of the EU’s biggest member states just published a court ruling that, together with the earlier violations of the rule of law, brings it closer to a fundamentalist regime, Brussels does not have any effective tools to respond to that. The European Union is hardly a community of values anymore, and it will take more than implementing its existing procedures to change that.

Protestors hold a banner in Polish reading “Women’s Strike” in the capital city of Warsaw
Franciszek Dziduch, 2020. All Rights Reserved.

Those who drafted the Treaty of Lisbon documents were too optimistic about the future of the Union. Perhaps they were still carried by the wave of the “End of History” that peaked in the 90s. Nonetheless, it broke and rolled back shortly after. The European Council has no adequate means of punishing unruly members. Article 7 from the mentioned treaty describes the procedure of responding to states violating the fundamental values. It is the only codified mechanism of ‘punishing’ the members of the organization. However, the long process that the procedure needs to be implemented will not even reach its final stage in the current political climate in Europe. Unanimity is needed in the European Council for it to undertake any real action, and the two states that are bound to be punished by their disregard for the rule of law, Poland and Hungary, have a strong alliance, and so the possibility to veto council’s decisions. Furthermore, it would not be a surprise if they were joined by yet another state soon. 

Let’s look at article 7 itself:

The Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.”

This is worryingly vague. Besides the suspension of voting rights, what can the Council do? Can it, for example, limit the states’ funding? The full measures have never been used yet, and it almost seems as if the lawmakers never seriously considered that triggering article 7 may be necessary at one point. 

Recently, on the occasion of passing its new budget, the Union has tried to fix these oversights by the proposal to, in simple terms, link the funding to the rule of law. The results of that have been unsurprising, albeit deeply disturbing. Both Poland and Hungary have announced that they would veto the budget, with Polish PM delivering a fiercely anti-EU speech in the parliament, his boldest statement against the organization yet. Such opposition from the two states puts in jeopardy the implementation of crisis recovery fund, which affects every member state. Even if the EU will manage to slightly condition the vast funding on prevalence of the rule of law, it will be in no way a guarantee of success. First, it is doubtful whether cutting the funding will affect more the ruling class or the citizens. EU money is spent on everything, from building highways to providing equipment to primary schools in rural areas. The government, which exercises full control over the allocation of funds, is likely to resign from less-publicized, less-monumental projects, thus hurting the citizens. One may ask if this would not cause the government to lose legitimacy in the eyes of the constituent. It has to be remembered, though, that the states under scrutiny are endowed with beyond-democratic means of persuasion, such as propaganda. As a consequence, the burden of financial sanctions may be used by the government to antagonize society against the EU. In Poland, the Union’s biggest benefactor, high-ranking officials have been denouncing the western-European tolerance and progressivism for years now. Such a vast limitation of member’s rights could be treated as an act of war. 

The European Union is hardly a community of values anymore, and it will take more than implementing its existing procedures to change that.

The need for the European Union to go beyond its existing procedures is indisputable. The Polish abortion ban was not a warning issued for the EU dignitaries. It is yet another detrimental defeat of the ‘community of values’ in this decade, after the dismantling of rule of law in Hungary, the failure of the austerity policy and Brexit, to name a few. In this perspective, the Polish protests following the abortion ban and yellow vests’ strikes in France are not so far apart. Both are a reaction to the EU’s inability to create a welfare region free of human rights violations. This is not simply a call for strengthening the competences of European authorities in national matters. As the EU has continuously failed to prevent new crises, we have to rethink the fundamental treaties underlying the organization, so that its politics finally reflect the values it has been built on. ▣

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