Poland: The New Government Poses a Serious Threat to Freedoms

The French and international press have barely mentioned Poland since Donald Tusk made his return as Prime Minister on 13 December 2023. Following the parliamentary elections in October 2023, in which a left-wing coalition emerged victorious, the PiS (Law and Justice) party, in power since 2015, was ousted. However, there would be a lot to say following the inauguration of the new government, because an air of revolution is hanging over “Great Catholic Poland.”

In recent months, Poland has been experiencing a kind of institutional war linked to a process that could be described as “dePiSation.” This corresponds to the express desire of the ruling coalition to hold previous governments accountable. As Donald Tusk said, “cleaning up after our predecessors is reminiscent of a Herculean effort.” This determination to make a clean sweep of the past is sometimes achieved by means of processes that flirt dangerously with the limits of legality. It is enough to note the muscular takeover of the public media last December, which led to the purging of journalists, the interruption of television shows and the dismissal of the presidents of the Polish television, radio and press agency, all with the help of the police and on the basis of a simple resolution passed by the Sejm. For some, anarchy is not far off: sarcastically, one might say that we knew until now that the rule of law was under threat in Poland, since it has been so often repeated, but we had no idea that it had reached this point. However, after months of tug-of-war between the EU institutions and Poland on this issue, Brussels has suddenly gone radio silent: the bad student is finally coming into line, thanks to Donald Tusk who, as a former President of the European Council, has friends among the powerful in Brussels and elsewhere.

This is the background to the libertarian cultural revolution currently in the making, which is likely to be given a boost following the local elections held on Sunday 7 April 2024. The European Court of Human Rights kicked off the process by condemning Poland in quick succession on the recognition of same-sex couples on 12 December 2023, then two days later on the issue of abortion. The new government will not fail to take advantage of this ruling, which came at the perfect time when it took office. Anna Maria Żukowska, Member of Parliament from the New Left Party, thus said that the Left would seek to introduce a number of societal measures, foremost among which will be the annulment of the Constitutional Court's ruling of 22 October 2020 declaring as unconstitutional the provision of the 1993 law allowing eugenic abortion. In her view, however, this will be a first step, as the Left “will not stop here.”

A government with progressive personalities...

Indeed, the New Left party sent an ardent team to the government, with Krzysztof Gawkowski as Deputy Prime Minister in charge of the Digital Economy, Dariusz Wieczorek as Minister for Science, Katarzyna Kotula as Minister for Equality and Agnieszka Dziemianowicz-Bąk as head of the Ministry of Labour, Family and Social Policy. Both women had been actively involved in the pro-abortion protests of recent years. This is also the case for the new Minister of National Education, Barbara Nowacka. A self-professed atheist, she is best known for her activism on abortion, having spearheaded the women’s demonstrations. Emmanuel Macron’s French Republic also saw fit to recognize such commitments, as she was awarded the insignia of Knight in the National Order of Merit in 2020 “for its social commitment to gender equality, in particular women’s rights, and relations with France”. The French Ambassador in Poland did not mince his words when evoking this “well-known figure of progressive action”: “you act to protect acquired rights and fight for greater liberalization in the social field. I am referring to the introduction of sex education, actions in favor of reproductive rights and the demand for total equality. […] We can say that you are acting in an exemplary manner by promoting the values that France defends and promotes throughout the world.” Her first planned measures? Restrictions on homework, a highly controversial reduction in the school curriculum, particularly in history, a reduction in the list of Polish literary works studied, restrictions on religion lessons at school, etc. By contrast, sex education needs to be integrated into the curriculum, and it is significant that the new minister is working with a foundation promoting sex education, whose founder is also used to attending pro-abortion marches. All this led the former Polish Children’s Rights Ombudsman Mikołaj Pawlak to say that “There are people who care that Polish society, the next generations that pass through the stages of education, should be as intellectually undeveloped as possible, but as spoiled as possible and imbued with pseudo-liberty, satisfying the lowest instincts.”

… and anti-clerical personalities

Several members of the new government also stood out for their anti-clericalism. Agnieszka Dziemianowicz-Bąk made waves as soon as she took office last December, wearing an openly anti-Catholic T-shirt depicting a woman shielding herself from a rain of little crosses under an umbrella. As for Sławomir Nitras, now Minister of Sport and Tourism, he stated in August 2021 that he had “the feeling that in the last 6-7 years the Church has not only had too much influence, but has somewhat denounced obedience to the State, broken down a certain standard applying in the State. […] to put it bluntly, perhaps there should be some punishment for this behavior, for breaking a certain convention, a certain social pact? […] Catholics in Poland will become a real minority and they must learn to live with this. It is good for this to happen in a non-violent, rational way, not on the principle of a certain revenge. But on the principle that “this is a fair punishment for what has happened.” We have to cut you off certain privileges, as you will raise your head again if something changes.” The Centre for the Protection of Christian Rights (Centrum ochrony praw chrzeszcijan) took legal action against the author of these remarks, but the case was dismissed in April 2022.

The blacklist of Christian and conservative organizations

Is it coincidence that this organization appears on the document from the Ministry of Culture and National Heritage that was leaked on 31 January 2024? It contains a list of about fifty associations, foundations, charities, think tanks and media outlets, mainly conservative, patriotic or of Christian inspiration, about which the Department of National Cultural Institutes is requesting information concerning any agreements that gave rise to the allocation of financial resources by other state institutions between 2015 and 2023, i.e. during the period when PiS was in power. Among the organizations on the list are the evocative names of Caritas Poland, Charismatic Renewal, the Association of Christian Psychologists, as well as Ordo Iuris and its affiliates Collegium Intermarium and the Foundation for Education in Values. It also includes the right-wing newspapers Do Rzeczy and Sieci, as well as the television channel Republika.

Constitutional definition of marriage and freedom of expression under threat?

In these circumstances, it is no surprise to see the prospect of societal changes such as a bill on civil partnerships. Announced for this spring by the Minister for Equality, it should be the first step towards equal rights for all couples. However, Article 18 of the Polish Constitution protects “marriage as a union between a woman and a man”, which raises the question of the constitutionality of such a project. In 2011, when Donald Tusk was Prime Minister, the Polish government invoked this very constitutional provision to express its opposition to the European Commission to a draft European regulation on the property consequences of registered partnerships, arguing that “the only recognized institutionalized form of union between two persons of a family nature is marriage (understood as the union of a man and a woman), and this at the level of the Constitution”.

Freedom of expression is also under threat. Aiming to ban hate speech, the draft law presented by the Ministry of Justice on 27 March 2024 provides for the amendment of several articles of the Criminal Code relating to the definition of aggravating circumstances (art. 53 §2a), discrimination (art. 119), incitement to public hatred (art. 256) and public insult to a population group (art. 257) by extending the grounds for discrimination to disability, age, sex, gender identity and sexual orientation. Article 256, which criminalizes incitement to public hatred, would then only provide for a prison sentence of up to 3 years, whereas it currently provides for a fine, restriction of liberty or imprisonment of up to 2 years. While the operation seems straightforward, some people question the definition of “hate speech,” particularly in the context of the Polish language. As Konrad Berkowicz (Member of Parliament from the opposition party Confederation) pointed out, “We know what slander, defamation, insult, etc. is. But we do not know what hate speech is, so this will have to be defined by someone and it will be done, of course, by politicians and officials […] In practice, this means nothing more than criminal prosecution for expressing views that are incompatible with a particular ideology that is close to the new coalition”. Such restrictions on freedom of expression are a means of silencing any critical voices on certain issues.

Abortion and contraception in the spotlight

But another issue has come to the fore in recent months: abortion and contraception. On this second point, at the beginning of March 2024, the Polish Parliament passed a law amending pharmaceutical law and providing for access to non-prescription morning-after pills from the age of fifteen. Although Polish law authorizes sexual relations between minors over the age of fifteen, such a provision infringes parents’ rights and promotes early and irresponsible sexual activity. On 29 March, President Andrzej Duda refused to sign the law, sending it back to Parliament. He justified his decision by “the desire to respect constitutional rights and standards for the protection of children’s health” and by the fact that taking these products would then have been authorized “without the supervision of a doctor and ignoring the role and responsibility of parents.” He had previously pointed out that Polish law prohibits access to solariums or the purchase of energy drinks by people under eighteen, and that the same principle should apply to the “hormonal bomb” that is the morning-after pill. Contradictorily, however, he admitted that he had “no objection to a minor girl taking it, if necessary, if that is the decision of the family or the parents, but only with the consent of the parents, the mother or the father.” Following this veto, Donald Tusk reacted on social networks: “The president did not take the opportunity to stand on the side of women. We are implementing Plan B.” This “Plan B” consists, by regulation and by reference to the law on publicly funded healthcare services and the law on the profession of pharmacist, of allowing pharmacists to issue the prescription required to dispense the product. Health Minister Izabela Leszczyna has promised that the morning-after pill will be available on 1 May, so all means are being used to ensure that the promise is kept at all costs.

Extending access to abortion is one of the flagship projects of the new governing coalition. On 8 March, the Prime Minister referred to it as “a debate about - we believe – women’s rights, or rather I would say human rights, fundamental civil rights, including a woman’s right to decide about her body and her maternity”. In Poland, abortion is currently permitted in case of danger to the life or health of the mother or when the pregnancy is the result of rape or incest. But no less than four legislative projects have been under discussion in the Sejm since 11 April 2024, the first of which was tabled by the Left on the day after the October 2023 parliamentary elections: it aims to legalize abortion on demand up to twelve weeks of pregnancy, or even later in certain cases.

A serious attack on freedom of conscience

Freedom of conscience in relation to abortion could also be threatened. On 11 March 2024, the Ministry of Health’s proposal to amend the “Regulations on the General Conditions of Contracts for the Provision of Healthcare Services” was presented. It provides that any provider under contract with the National Health Fund for services in the field of gynecology and obstetrics is obliged to conduct abortions on site in cases where this is legally permitted, by arranging for at least one doctor to conduct the procedure. A financial penalty of up to 2% of the amount of the contractual obligation for each breach identified, or even partial or total termination of the contract between the medical facility and the State, could be imposed as a penalty for these new obligations. According to the Ministry of Health, the reason for this regulation is “the abuse of the so-called conscience clause by certain doctors.” As for Donald Tusk, he stated on 8 March that all cases of application of the conscience clause would be monitored and that he “[expects] the Attorney General to open an ex officio investigation into all cases of refusal” to perform an abortion. And he added: “I stress we will not wait for the agreement or disagreement of the opposition, the president or even our coalition partners. We will implement these decisions through a decision by the Prime Minister, the relevant ministers, and the relevant institutions.” For her part, Minister for Equality Kotula declared that she “can promise today that wherever the Left is in power in local authorities [...] there will certainly be no conscience clause.”

However, such provisions could prove to be unconstitutional, given the decision of the Constitutional Court of 28 May 1997 (K 26/96) concerning the unconstitutionality of abortion on demand for so-called social reasons and that of 7 October 2015 (K 12/14), which related to doctors’ conscientious objection. These decisions were handed down by an uncontested panel, unlike the judgment of 22 October 2020, in which the composition of the panel is the subject of another institutional war: for those in power, whose position is supported by the recent case law of the European Court of Human Rights, this is not the “Constitutional Court” but simply the “Court of Julia Przyłębska”, named after its president, the decisions of which they consider to be invalid. That said, another “plan B” may have already been prepared…

In any case, the debates on the subject of abortion are stormy. One of them, between Ewa Zajączkowska-Hernik (Confederation) and Wanda Nowicka (New Left) on 29 January 2024, is worth noting. Zajączkowska-Hernik began by pointing out that it is not possible to call “freedom” something that consists in killing another human being, as in the case of abortion, where the aim is in fact to kill the conceived child. Nowicka then asked her not to tell “ideological tales that have nothing to do with reality.” Because according to such a vision, “women must be subordinated to an ideology because what you say here about the facts, that it is, of course, about the murder of children etc., can you imagine that throughout Europe, where there is liberal legislation, these murders of children would therefore be, if I may say so, a veritable house of slaughter [mordownia]”. She could not have been righter… But where does the ideology lie? The issue even divides the ruling coalition. The Third Way party is in favor of holding a referendum on the issue, but it is opposed by New Left, which is urging to move this matter forward. The president of the Sejm, Szymon Hołownia (Third Way), has drawn the wrath of New Left down on him because of his decision to postpone discussions on this subject, initially scheduled for early March, until 11 April, i.e., after the local elections.

The current Polish government thus seemingly wants to make up in just a few months for what it considers to be a huge “delay” in progress and in the direction of history. But for Brussels, this cultural revolution is not yet happening fast enough: this is what emerges from the European Parliament resolution of 11 April 2024 on including the right to abortion in the EU Fundamental Rights Charter. It welcomes the new government’s will to change the law in this area, but regrets that the debates in Parliament have been postponed for five weeks. There are issues that cannot wait… Let us hope that the Polish people will become aware of the reality of what is happening before their eyes and that they will have the courage to express disapproval, particularly at the European elections in June and then the presidential elections in 2025.