Women, Democracy and… Abortion

26 November 2016 /

#CzarnyProtest #BlackMonday #BlackProtest
Since September, these hashtags are famous in the tweetosphere. They have been the symbol of women protest against the conservative Polish government during the Fall 2016. Thanks to the mobilization all over Europe, the Polish government took a step back on its draft legislation that would almost completely have banned abortion in Poland.

First, Spain in 2014, then Poland in 2016. In 2014, Spanish women were protesting against what they called a “dilution of Spain’s abortion law.” At the end, they succeeded to prevent the revision of the lawon abortion. One month ago, Polish women were on strike to protest against a restrictive proposition of law on the same issue. Before any reflection on that topic, an overview of abortion’s accessibility over Europe is necessary. The abortion issue came to the forefront during the second part of the XXe Century. The first European country to adopt a real abortion law was Latvia in 1955, during the its Communist period. Before the War, the famous “Suffragettes” in the United Kingdom were already fighting for, inter alia, their right to abort ; nonetheless, they had to wait until 1967 for a law on abortion in United Kingdom (“UK”).

Nowadays, every European country has a legislation on abortion. However, some protests have been taking place in the public space for four years. Poland is not the only state which has been contemplating a modification of its abortion legislation. A similar situation took place in Spain two years ago. The conservative government and its president, Mariano Rajoy, introduced a draft law that would allow abortion only under specific circumstances : rape cases or mother’s health at a serious risk.

In Europe, 85% of the Member states allow abortion under “broad circumstances”. However, five European countries have more stringent restrictions: Poland, Malta, the UK, Ireland, and Cyprus. There, the only circumstances under which abortion is allowed are generally rape cases, foetal impairment or if the mother’s health is at risk. For instance, in Ireland, abortion is not allowed except in case of death danger for the mother while in Cyprus it is when only rapes and risk for mother’s health . There is only one country in Europe where abortion is totally forbidden: Malta.

Some states’ law creates factual hurdles for the access and the right to abortion. Even though abortion is theoretically allowed in Italy, in practice a majority of physician invoked the right to apply the “conscience clause” (CC) that allows physician the right to refuse to practice a medical operation when the latter runs against their own values. Resorts to this clause have been mostly made in the context of abortion. In Hungary, abortion is also allowed but its access is more and more difficult. In 2012, a sentence has been added to the Hungarian Constitution concerning the right to life. The latter was conceived as a mean to protect fetal life: “life deserves to be protected as a fundamental right […] life and human dignity, are inviolable.” In his book “Fundamental Rights in Europe”, Federico Fabbrini (2014) explains that “Hungary introduced a constitutional clause to protect fetal life from the moment of conception, in a move which has been regarded as anticipating the introduction of tighter limits on the possibility for women to obtain lawful abortion in the Country.”

At the opposite, Finland is more open in practice than in theory. If in principle two physicians’ signatures are required to authorise an abortion. However, before 17 and after 40 years-old or if the mother has already four children and/or for difficult socio-economic reasons, one signature is enough. As a matter of fact, Finland has the lowest abortion rate in the European Union (« EU »). In the UK, the situation in practice is akin to the one in Finland,. The gestational limit there is twenty-four weeks whereas the European average is between ten and twelve weeks (data from: worldabortionlaws.com) .

The situation in Europe is diverse. The number of abortions has been decreasing in a majority of European countries with the exceptions of France, the UK and Sweden where it increased (source: Eurostat). This situation partially falls under health policy: a shared competence between Member States and the EU (Treaty of the Functioning of the European Union, article 168(7)). The EU potential for legifering is limited to “common safety concerns […] where national standards affecting the internal market would otherwise prevent a high level of human health protection being achieved.” Additionaly, it hinges upon the notions of public order and morals and their interpretation which differ acording to national circumstances and over which the European Court of Justice has limited control.

As previously stated, for four years now, some countries in Europe have been increasingly willing to re-examine their national law on abortion. The question that comes to my mind is : Why? Why, two European countries led by two conservative governments have decided to review their legislation on abortion? We will focus the analysis on Poland. Since october 2015, Poland is led by a conservative party called Law and Justice (PiS). This proposition did not come from the party itself, but rather from a citizen initiative written and promoted by pro-life associations. This initiative succeeded to be presented at the Sejm (the Polish Parliament) with 450,000  signatures (data from France24). However, a citizen initiative of less than 1 millions in a country of 38,53 millions inhabitants can hardly be regarded as a popular initiative. In addition, the number of signatures equates the one of people that physically gathered in the street all over Poland and Europe to fight against the proposal.

© @sneakinbieber on Twitter

For two months “Black Mondays” have reunited thousands of women. Voices from the street were finally heard. Yet, we cannot say that it was a victory of Democracy per se. This was first and foremost a moment to recall women’s right on their body : “My Body, my choice”. It depicted a strong mobilisation to defend individual rights and was a social success. The right of women to make the choice of aborting or not shall no longer be a question open to debate. It shall become the reality. On that point, a 2014 press release from Marion Marechal Le Pen is interesting : “The Front National is not in favor of an abrogation of abortion. We do not want women to return to “knitting needles” […] I don’t want to implement a legislation to condemn them to material distress.”  When faced with an unwanted pregnancy, a woman has two solutions offered: giving birth and assuming a child or aborting. Of course, no one wants women to abort illegally. Unfortunately, some women are ready to cross national borders or to ask to a backstreet abortionist to abort. According to a 2012 article by the Guardian, abortion tourism increases each year: “the number of women contacting a charity that helps people in Ireland to seek abortions in Britain is set to double for the third year in a row”.

The situation in Poland has clearly been a success for women and their right to choose whether or not to abort. Under important social pressure, the proposition was withdrawn. I as a woman am personally very proud of this women’s victory over the draft legislation. Polish women have demonstrated that their voices, through social media and strikes, were louder than the Polish government’s one. Even within the government, the Polish Prime Minister “has distanced herself from a proposal to tighten abortion legislation” (the Independent.co.uk). However, one should not forget the cases of Malta and Ireland in Europe that tarnish the European process of liberalisation concerning women’s right over their body. The fight is not over even if the Polish case revealed that women are more than ever mutually supportive from border to border, from Europe to the United States of America, and from social media to the reality. The choice of aborting or not should no longer be made by the State. It has to be the choice of the mother, her conscious, her morality, and her life-situation.

Marie Lavayssière is 2nd year Master’s student at the Institute of European Studies

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