The Taliban Conquering Europe
Less than ten years ago a judgment was delivered in the case of a 14-year-old schoolgirl who had been violently raped by a boy of the same age and consequently became pregnant, and on the struggle to get her legal right to abortion realised. During the proceedings, it wasn’t the boy but the raped girl (?!) who was criminally prosecuted and imprisoned for engaging in sexual intercourse with a person under 15 years of age, while the rapist faced no prosecution at all let alone conviction. A statement that she did not want the abortion was coerced out of this 14-year-old girl without the presence of her parents or a lawyer, by a priest (?!) of the country’s dominant religion, engaged to intimidate her by the state hospital. On the basis of this forced statement, the family court restricted the parental rights of the raped girl’s mother because of her efforts to (legally) terminate her daughter’s pregnancy, and put the girl behind bars. She and her mother were physically harassed by all sorts of anti-abortion activists, even in the hospital room, and the data on the girl’s health was publicly revealed online. Instead of issuing a certificate approving abortion, the doctor in charge of the procedures arbitrarily refused it and instead advised the mother to “get your daughter married” “” (not specified to whom, to the 14-year-old rapist or somebody else). And in the end, none of those involved in the ordeal of this unfortunate young girl were held criminally responsible.
It seems as if a case like this could only have happened in the remote mountains of the faraway Asian southeast, where the mentality and the “law” of the Taliban authorities rule over women’s rights. Unfortunately, it is not so. The judgment in question has been delivered by the European Court of Human Rights in the case of P. and S. v. Poland, so against the Republic of Poland, a member of the European Union.
THE TALIBAN ALREADY IN TOWN
The tragedy of this violently raped schoolgirl P. is by no means the only horrible abortion story from the aforementioned country. At about the same time Poland was condemned before the ECHR in several further abortion cases. Tysiac v. Poland was about the authorities refusing to perform – also perfectly lawful – abortion in the case of a lady with indication of severe eyesight deterioration, should she continue the pregnancy (in the end she became almost completely blind after giving birth). In another ECHR case R.R. v. Poland, the condemnation was for refusing or delaying until it was too late – again lawful – abortion in a situation where a foetus was severely and in the long term fatally malformed by the Turner syndrome. The facts of these judgments are horrific and well worth reading, for general education, not just for lawyers. Going over the rulings, one gets the feeling that the people deciding on the fate of these young women were of the type of Mitya Karamazov or the likes, the judgments are exposing the lowest possible instincts and prejudices of priests, school headmasters, family-court judges, policemen, even fathers or husbands, and especially the doctors and other medical staff. These, for instance, were perfectly willing to reveal to the press the confidential medical information on the pregnant lady R.R. and her malformed foetus, while also publicly declaring that she and her husband were bad and irresponsible parents for seeking abortion (for which the Polish court later awarded them laughable damages of less than 100 EUR). And after being condemned in the Tysiac case, the state in question even had a face the gall to appeal the judgment to the Grand Chamber of the ECHR and thus delay for years the payment of meagre damages awarded by the ECHR to the jobless blind single mother of three small children.
Practising attorneys know best that behind every horrible case decided on the merits by the ECHR there are always many similar cases that do not reach the ECHR at all or are dismissed on procedural grounds by a one-sentence decision – with none of these recorded or published anywhere. The abovementioned judgments are therefore more than enough to show a pattern of some hardly imaginable general disregard for any individual human rights, as if the mental and legal revolution of the Enlightenment had never occurred in Poland or had been entirely forgotten. The decisions and rhetoric are, rather, based entirely on medieval concepts of collective ideology overruling anything individual. This collective ideology comes, of course, from the Catholic Church in its most radical form, affecting the legal order of the state by something not even too cynically described as the “Divine decision-making”. What has been shaping Poland’s legal system in the last decades is some rather obvious Catholic Reconquista, determined to set things back (and further away) to what was in place almost a century ago, in the times before the godless communist authorities were imprisoning bishops and harassing the Church in any other possible way.
Among the first of many features of this Catholic Reconquista has been the adoption of the new post-communist Constitution of Poland which begins by praising “God as the source of truth, justice, good and beauty”. Further divine regulation of this sort is also the so-called abortion compromise from 1993. It allows (legal) abortion only in three situations: when the pregnancy endangers the life or health of the mother, when the foetus is severely and irreversibly damaged, and when pregnancy is the result of rape or incest. Such restrictive regulation, in the EU currently existing only in Poland and Malta, was strengthened further by the judgments of the Constitutional Court No. K 26/96 from 1997, which explicitly declared as unconstitutional abortion for all and any of the social reasons, and K 12/14 from 2015, which supported unlimited use of conscientious objection against performing abortions by the Polish doctors. As to this so-called abortion compromise, it has been forcefully argued that it is no compromise at all but merely a reward to the Catholic Church for its contribution to the overthrow of the previous regime in the country. However, it becomes clear that this is anything but a “compromise”, especially considering the effects of this regulation shown by the statistics. In 2019, so in the last year before further restrictions, there were a mere 1.110 legal abortions in Poland. This figure is a hundred times lower than 99.149 cases in comparably populated Spain and is three times lower than the figure of 3.275 legal abortions in 20 times smaller Slovenia. So in reality, this “compromise” gives an effective right to abortion to only about one percent of Polish women in a situation of unwanted pregnancy. The remaining 99 percent need to have the abortion done abroad if they are wealthy enough to afford it, alternatively they need to resort to life-threatening back-alley malpractices, or could only succumb to the pressure and have to raise (or abandon) unwanted children in all sorts of awful social and psychological circumstances.
The above statistics show that in almost three decades of the legal existence of this “compromise”, the number of its direct (female) victims has reached millions, with even further millions of (female and male) Poles affected indirectly. But the horrors inflicted on such masses of their people have not moved the Polish authorities to loosen this Catholic oppression, in the way as , perhaps, has been done in Ireland following the 2018 referendum. Just the opposite: on the motion of 118 MPs of the ruling conservative party, aided by strong underground support of extremely conservative organizations such as Ordo Iuris, the Constitutional Court has with the recent judgment No. K 1/20 from October 2020 further reduced the reasons for legal abortion from three to only two, by declaring the reason of irreversibly malformed foetus as unconstitutional. The effects, and implications, of this judgment are manifold. Statistically, it reduces the number of legal abortions to a virtual zero, from 1.110 in 2019 to now only 36 legal abortions in a country of 40 million people. Such an effect has been caused by some rather simple “finding” of the right to life in Art. 38 of the Constitution of Poland, with the interpretation of this alleged right as protecting the life of a human foetus already from the moment of conception, which can be interfered with only on the basis of “analogous right of other persons” – so only because of the endangered right to life of the mother. But although the court avoided stating it directly, such an approach eradicates not just one but all three reasons for legal abortion in Poland. The right to life has namely been threatened neither in the case of the 14-year-old rape victim hiding under the initial P., nor that of Alicia Tysiac from the other ECHR case, for the unwanted pregnancy has made her only blind and not dead …
The approach of the Polish court is perfectly Talibanic: women have no say whatsoever in the matters affecting their bodies and wellbeing.
Such a decision of the court, as well as the legal system and the legal environment stemming from it, have of course been criticised harshly by the scholars versed in Polish law. It has been argued that in reality, there is no right to life regulated by Art. 38 of the Constitution and even less is such a right regulated as protecting the life from the moment of conception – especially because such a regulation had deliberately been omitted by the fathers (and mothers) of the Polish Constitution. Many other legal defects of the same judgment have been listed. But all and every sophisticated legal argumentation seems to be entirely irrelevant here. Namely, at least to the outside observer, the court in action in the K 1/20 case had been deciding as a classical “kangaroo court”, determined to get the desired decision from the outset, regardless of the results of the procedure. This is not just because of the highly dubious and evidently unconstitutional composition of this court but also because of its highly biased one-sided approach, evident to everybody. In particular, the judges Pszczolkowski and Kieres have stressed in their dissenting opinions that the grand majority of no fewer than 11 out of 13 judges agreed not only that irreversible malformation of the foetus could not represent grounds for (legal) abortion, but also concluded that for the issues in question, all and everything from the sphere of dignity, health or wellbeing of the pregnant women is entirely irrelevant. Although these are all undoubtedly values protected by the Constitution, they were not even mentioned in the judgment. The very core of the issues at stake has thus been entirely left out of the decision-making, just as when the classical kangaroo court, set to have the accused hanged, entirely ignores the core question of whether the accused actually murdered the victim.
The approach of the Polish court is perfectly Talibanic: women have no say whatsoever in the matters affecting their bodies and wellbeing. Men and the state are to decide on what is or is not happening transpire in the wombs (and souls) of the female citizens of the Taliban state of Poland. According to the wording of the K 1/20 judgment, only one exception to this is envisaged: the rights of a pregnant woman matter to some extent only if her life is endangered. But on closer inspection, even this is highly dubious. Namely, the decision to outlaw abortions for reason of malformed foetus effectively put the deciding into the hands of the people highly motivated against allowing abortions. The Polish doctors (lawyers come only later) could get themselves safely out of a potential criminal conviction or other trouble only if postponing the decision to terminate pregnancies due to fatal foetal malformations until the case of the mother’s endangered life is entirely clear. But on many occasions, this comes too late. In the short time of its existence, the regulation from the K 1/20 judgment has already caused many deaths of young Polish women. A lady hiding under the name Izabela died of septic shock after her hospital refused the abortion for several days because they were “waiting for the baby to die”. And a lady called Agnieszka died because one of her unborn malformed twins died first and had more than a week to fatally poison the mother, before the “legal” termination could be done after finally the other baby twin also died.
There have undoubtedly been countless other such cases. Judging from the official data on over 1000 Polish abortion cases currently pending before the ECHR, the death toll of the said judgment may be enormous. To the group of 11 judges deciding as the majority in the K 1/20 case, such consequences were or at least should have been perfectly clear in advance. Even in the judgment in the Tysiac case from a decade ago, the ECHR already explicitly warned against the chilling effect imposed on (Polish) doctors by the combination of the abortion ban and criminal responsibility for deliberately or even only “wrongly” conducting the abortion that turned out to be illegal. But even these clear prospects of causing many deaths had no effect on the kangaroo rulings of the Polish court. Described in terms of the latest happenings in the original Taliban country, the situation in Poland is exactly the same: the Taliban have conquered the town (and the country) entirely and there are no real chances anybody can chase them away. In some way, the northeast European Taliban have accomplished even more than their compatriots from Asia. Even there the capital punishment of stoning sinful women to death is presupposed by those women having committed something perceived as sinful by the society or the state deciding their fate. But the ladies hiding under the names of Izabela and Agnieszka have suffered perhaps even more gruesome deaths without any sinful behaviour whatsoever.
THE TALIBAN IN THE SUBURBS OF THE BESIEGED CITY
Except for the people who for certain reasons approve of such Taliban-like treatment of women as mere objects, the current legal and factual situation in Poland can only be treated as something extremely ghastly. Hundreds of thousands of people are protesting on the streets against these harsh abortion regulations while young women like Izabela, Agnieszka and many others are dying in hospitals – since, scared of the authorities, the doctors are refusing to perform abortions even in perfectly clear life-threatening situations. In another case of a lady called Agata, the doctors and the hospitals have even washed their bloody hands by deferring to legal opinions of none other than the highly biased Ordo Iuris organization, the principal motivator of this pro-life hysteria. And it all keeps going downhill: Ordo Iuris has proposed legislation which imposes a penalty of up to 25 years in prison for termination of pregnancy, and Poland’s health ministry is even proposing to set up a register of pregnancies. Officially, it would be used to keep track of medication prescriptions – but it would be accessible also to the state prosecution services.
Now, why should somebody a thousand or more kilometres away bother with the ghastly situation in the far northeast of Europe? All that is going on could of course send unpleasant shivers up and down the spines of ordinary Europeans. But if the spines of Polish people are somehow different, adapted to what is happening to the ladies referred to only by initials or pseudonyms through decades of disciplining and control, let it be so. The problem, however is that such disciplining of the spines is not limited to the wild northeast of Europe anymore. It is just a matter of time until the ECHR judgments similar to the ones against Poland are to be handed down against (at least) the Republic of Hungary. In a more refined way, the same as in Poland (and worse) is happening there as well. The spectre of abortion accessibility in the EU shows 19 countries where abortion in earlier phases of pregnancy is allowed on the basis of a simple request from a pregnant woman. In two countries, Malta and Poland, the abortion is essentially prohibited. And seven somewhat intermediate countries allow abortion upon presenting certain social reasons. In these seven countries, an elaboration of social reasons for abortion and a counselling interview with the state social services are conditions for a legal abortion. In the case of Hungary, two such advisory interviews are mandatory, the second no earlier than three days after the first one. But this at first sight rather benign regulation has recently changed drastically into incidents where social services moralise about “killing a child”, insist on showing women seeking (legal) abortion the notorious pro-life film “Silent Scream” and are, arbitrarily or using the Covid-19 epidemic as a pretext, dragging out the procedures until the period allowed for abortion expires. For women seeking (legal) abortion in Hungary, access to it has been severely restricted also because many gynecological clinics are generally forced to decline such services because their funding is conditioned on a no-abortion commitment towards Hungarian authorities. On their way towards denying the right to abortion as an effective right, the authorities in Hungary have planted many more seemingly tiny but in reality huge obstacles. The results are thousands of Hungarian women getting abortions performed abroad, mostly in gynecological clinics in neighboring Austria. As usual, it is the statistics that are the most telling: the number of legal abortions in Hungary has been reduced by almost a half in just one decade, from 40.449 cases twelve years ago to only 25.783 abortions (legally) performed in 2019.
All this is perfectly in line with the events in Hungary in the last decade, more precisely with the policies of the conservative government led by PM Viktor Orban, which came to power in 2010. The traditional family and gender roles are nigh mystically worshiped, all the way up to the highly influential (female) Minister for Family Affairs and Vice President of the ruling party Fidesz, who almost proudly announced that there was nothing wrong with lower payments for women compared to men for the same work. The same lady, just now elected as the president of Hungary, has also nonchalantly labelled the pro-choice attitudes as a movement of “pro-killing”. But somewhat concealed behind this seemingly benign propaganda are far more pernicious legal developments. The country withdrew from the Istanbul Convention for the prevention of Violence against Women and signed the Geneva Declaration, widely regarded as the Anti-Abortion Declaration of the US ex-president Trump. And most importantly: with the two-third majority in the Parliament, the Hungarian conservative government managed to adopt the 2011 Constitution, which goes far beyond what the conservatives managed in Poland. It includes the wet dream of Ordo Iuris and the likes, namely the explicit (constitutional) declaration of the legal protection of life of the human fetus from the moment of conception. With such constitutional provision, and with the Constitutional Court (over)packed by conservatives in the last decade or so, anything other than a decision similar to the one from Poland seems quite impossible. The turning of the screw into the Polish direction and beyond is only a matter of time …
Again drawing parallels to recent events in Afghanistan, the situation is such that the (Hungarian) Taliban are already in the suburbs of a besieged city – and no serious defense against the final conquest seems feasible.
THE TALIBAN STILL FAR AWAY IN THE MOUNTAINS?
Merely two years ago the people from (or near) Central Europe could not care less about the bizarre political, social and legal events in the far enough northeast of Europe. As more or less everywhere in the (civilized) Europe, the highly discriminative anti-LGBT zones in Poland or the homophobic anti-LGBT regulations and propaganda in Hungary, illiberal attacks on the media and the judiciary in both countries, dreadfully inhumane atrocities against migrants, building of the Trumpian border defense walls against migrants, criminal persecution of disobedient judges or critical intellectuals, and much more from the rich arsenal of the current eccentrics of these two countries had been perceived in Slovenia as some odd “wild east story”, not affecting us in any respect. In a country where the right to abortion on the basis of a simple request by a woman in trouble has been undeniable legal axiom for generations, throughout what is now almost half a century, the dreadful stories and judgments from the northeast could only have been treated as something from another planet.
Even before a single migrant appeared anywhere, Slovenia had already announced the most extremely restrictive policy regarding refugees from Afghanistan.
But the times they are a-changing and two years ago the political power in Slovenia passed into the hands of the conservative coalition with a slogan of:
“For a European Slovenia and for a Europe of Christian values and roots.”
Suddenly, the bizarre and obscure legislation and politics from Hungary and Poland are no longer bizarre nor obscure, but became the object of idolatry. Even before a single migrant appeared anywhere, Slovenia had already announced the most extremely restrictive policy regarding refugees from Afghanistan. The leaders of the new regime suddenly agreed with Poland’s proposal for also Slovenia to withdraw from the Istanbul Convention and political tirades are lined up against something called the “LGBT ideology”. Slovenia suddenly became the first (and only) member of the EU who tried to prevent proceedings by the EU institutions against Hungary in Poland while applauding everything coming from Budapest or Warsaw, even the most blatant violations of human rights or the rule of law. The conservative and catholic Reconquista is underway in full force, for instance with a string of media articles by one of the previous conservative governments’ minister titled “Backward is OK”. The current conservative regime and its ideologues have even turned upside down the perception of the conflict between “the reds” (partisans) and “the whites” during WWII. The former are now treated as bad , for they had done many nasty things to the other side after the war. But to praise the “whites” is to praise what they were fighting for, so a pre-war regime with a deeply conservative 70-year-old active Catholic priest as its undisputed leader, where women were denied access not just to abortion but even to universities, and where under the then valid theocratic laws on public morality a local bishop could order that an entire edition of a book of lyrical poetry be burned at the stake – poetry written by somebody now regarded as Slovenia’s greatest novelist.
It remains to be seen whether in such an environment the Slovene young women and people around them really should fear that what is happening in the now very “friendly” northeast countries can happen to them too. But certain signs are ominous. Only recently, the leading people of the ruling conservative party marched through the streets of Ljubljana in the first pro-life “protest” in Slovene history. And when forming the current conservative government, the post of the Minister for Family was entrusted to a person whose only serious professional reference at about 50 years of age was to be the founder of some highly conservative organization called “Iskreni”(Sincere), the leading Slovene opponent to abortion and everything contrary to the conventional gender roles, an organization which is even conducting highly archaic courses on how to abstain from masturbation and from sexual intercourse before the wedding (whatever a single person can do to accomplish both). Ominous are, last but not least, also the court procedures now already typical for Ordo Iuris and the likes, where issues such as the conscientious objection are being pursued through the court system – with a clear intention to pave the ground for the procedures before the Constitutional Court, when and after it gets properly packed …
Although quite a few “Iskreni” eyes are looking anxiously down into the valleys, it may well be that the Slovene Taliban who would want to sever the rights of Slovene women are currently still far away in the mountains. But under “backward, which (supposedly) is OK”, not only women’s rights are endangered. One of the classical definitions of talibanism is, namely, also about the militant and if necessary violent anti-modern, anti-Western, anti-women, anti-democratic, xenophobic and vengeful policies and practices. It may be that the conservative illiberal friends from Slovenia and the above-mentioned countries and regimes are really just scaling together the Mount Triglav. But one of the lessons from the recent events in Asia and closer home is that it is too late to stop the Taliban when (and after) they decide to descend from the mountains down into the valley and into the city …
You can read Slovenian version of this text here.
Photo: Foto: Grzegorz Żukowski, Flickr