The EU is powerless to stop Poland’s liberal lapse

Zoliborz is one of Warsaw’s most prestigious addresses. Its leafy streets are popular with journalists, university professors and, as of last week, thousands of protestors. The suburb is home to Jaroslaw Kaczynski, Poland’s former prime minister who has led the ruling Law and Justice party for close to two decades. Despite holding no government office for most of that time, the control and influence he has over ministers has led many to conclude he is Poland’s head of state in all but name.

It’s for that reason his home on a quiet residential avenue has become the destination of choice for marches and pickets over the past two weeks, after a decision by Poland’s constitutional court 'effectively barred' access to legal abortions. Family planning is often a taboo subject in the country, with more than nine in ten Poles identifying as Roman Catholic. The country's laws governing termination of pregnancies were already among the strictest in Europe.

The ruling, which cannot be appealed, closes the door to abortion on the grounds of foetal defects — which the verdict stated would breach the 'right to life' enshrined in the constitution. Since then, tens of thousands have taken to the streets across towns and cities in Poland, as well as protesting outside Polish embassies in cities like London over the weekend. The publication and formal adoption of the decision has been delayed, in response, but only temporarily.

This is the latest evidence that the Polish government has placed itself on a collision course with the country’s civil rights organisations, emboldened by the re-election of Kaczynski’s favoured candidate Andrzej Duda as president in July. Duda narrowly beat the liberal mayor of Warsaw Rafal Trzaskowski with 51 per cent of the vote. Since then, Law and Justice has doubled down on its efforts to reshape Polish society. Just weeks after the election, protests organised by LGBT activists were met with force — with dozens arrested and reports of beatings and illegal strip searches at the hands of police. Already, the country is a European outlier on the issue, particularly after a number of localities declared themselves 'LGBT-free zones', banning events like pride marches.

Poland’s attack on civil liberties hasn’t gone unnoticed by the European Union. In her inaugural ‘state of the union’ speech in September, new European Commission president Ursula von der Leyen blasted the central European nation, arguing that these restrictions have no place in any EU country. What von der Leyen failed to account for, however, was the fact that Poland’s government has significant, although not absolute, domestic support for much of its programme. Polling suggests two-thirds of Poles are opposed to gay marriage, and a similar number don’t believe LGBT people have the right to live their way of life publicly. If von der Leyen and her colleagues in Brussels have a vision of fundamental European rights, they has a long way to go to convince Warsaw.

For the EU, Poland’s domestic policy, and the social attitudes behind it, has become yet another headache in central Europe. Relations with Hungary and Viktor Orban’s nationalist government have already frayed beyond the point of repair over issues like protectionism, undermining parliamentary scrutiny and the refusal to accept refugees languishing in camps in Greece and Italy. Together, the two nations have become the problematic duo of European member states. In 2018, when the EU finally indicated it could impose sanctions on Hungary for what it claimed was an assault on democracy and freedom of speech, Poland stepped in, pledging to veto any such measures.

The stalemate is made worse by the fact Brussels has so few options left. Three years ago, European leaders triggered the EU Treaty’s Article 7 against Poland for violating the basic values of the union. The most drastic diplomatic course of action available, it began proceedings that could ultimately lead to the suspension of a country’s voting rights. But if it was intended to show that the EU would not hesitate to act on rights abuses, it ended up exposing just how little it was prepared to do, as member states have been reluctant to progress its provisions at Council. Worse still, Hungary, which first faced Article 7 measures in 2015, has similarly found its case file lost in the system, with no action taken since then.

At the same time, the European parliament is piling on the pressure for something to be done. Earlier this year, MEPs passed a motion decrying the deterioration in the rule of law in central Europe and taking aim at the lack of progress. But if there ever was a time Brussels when felt it could be bullish with its rogue members, it isn’t now. Von der Leyen’s idealism is trumped by the need to maintain the fragile coalitions of support for issues like the EU's coronavirus recovery funding and the Brexit negotiations, at least in the short term. 

That leaves the EU at an impasse. If it ever was a purely economic union, those days have long since passed. Now, in the eyes of leading Eurocrats, its success depends on expanding liberal democratic norms across all of its member states. But, as tens of thousands of women take to the streets again in Poland, they will struggle to win the support of an EU that is being forced to pick and choose its battles.