Barring something completely unforeseen, president Donald Trump’s nominee for the US Supreme Court, Amy Barrett, will be confirmed by the Senate tomorrow morning (Australian time), delivering a solid conservative majority on the court that could last for decades. No nominee in the past has ever been confirmed so close to an election.
Although the appointment is a triumph for Trump’s Republican Party, there are suggestions that it may backfire, motivating his opponents more strongly to turn out next week for his opponent, Joe Biden. Certainly if they needed any reminder of the damage that a hostile judiciary can do, it was provided last week in Poland.
Back in 2017, when Poland’s right-wing government moved to bring the judiciary under tighter government control, the main concerns expressed were over constitutional issues: that it would make it easier for the government to entrench itself in power and dismantle democratic safeguards, as had already happened in nearby Hungary.
Those concerns have not gone away, although the worst fears have not yet been realised. Instead, the Polish Constitutional Court, in a case brought by MPs from the ruling party, extended itself on another issue: abortion.
Abortion laws in Poland were tightened after the fall of Communism, first in 1990 and again in 1993. The latter change kept it legal only in cases of rape or incest, danger to the woman’s life, or serious fetal defects. Most abortions that took place were covered by the last of those cases, which enjoyed popular support: an attempt by the government four years ago to eliminate it was defeated after huge protests.
Now the court has done the government’s dirty work for it, ruling that legal abortion was in conflict with article 38 of the Polish constitution, which states that “The Republic of Poland shall ensure the legal protection of the life of every human being.”
The decision has not gone down well. Pro-choice protests were held across Poland yesterday, attacking not just the judges but the government and the powerful Catholic church. While the majority clearly supports restrictions on abortion, this seems to be a bridge too far.
It takes Poland further out of the European mainstream. But as usual, women are victims of a double standard. When democratic backsliding is discussed in other contexts regarding Poland or Hungary, it’s a matter of those countries reneging on commitments that they had explicitly made upon joining the European Union.
But reproductive freedom was never included in those commitments in the first place. Quite the contrary: when Malta, the only EU member whose abortion laws are even more stringent than Poland’s, joined the EU in 2004, it extracted a promise that EU legislation would never be allowed to modify them. It’s no surprise that EU leaders have so far kept quiet about the Polish decision.
Yet what the situation in both Poland and the US illustrates is that democracy and human rights – including women’s rights – are closely intertwined. The same politicians who want to trash democratic safeguards and undermine the rule of law are almost invariably hostile to reproductive rights and other markers of equal citizenship for women; authoritarianism cannot be neatly cordoned off in a single domain.
If Biden wins the presidency next week, he will have to make some difficult decisions about how to deal with a Supreme Court with a baked-in hostility to his agenda. And a more liberal government in Poland, whenever it comes, will have to deal not only with its own rogue judiciary, but with the more general misogynistic attitudes that have brought things to this point.