Agnieszka Bień-Kacała and Tímea Drinóczi – Abortion law and illiberal courts: spotlight on Poland and Hungary

Abstract

The constitutional systems of Hungary and Poland offer a powerful example of illiberal constitutionalism. In this chapter, we claim that The Polish abortion cases (1997 and 2020) exemplify not only the illiberal content of the abortion decisions but also the social and legal context they have been adopted. The Polish rulings remind us that illiberal attitudes can warp outcomes, regardless of the constitutional system in which they are delivered. These Constitutional Tribunal’s abortion decisions illustrate how they have contributed to the formation of the illiberal system that lowers the protection of human rights. The Hungarian abortion cases, while delivered in a different regulatory context (1991 and 1998), support our first claim by showing a kind of counter-position and more balanced reasoning. The Hungarian abortion decisions demonstrate a more justifiable way of constitutional review and reasoning in the frame of liberal constitutionalism, based on which the legislative power was free to choose between different regulatory approaches. This approach is even more striking given that the Hungarian Constitutional Court has always dealt with women’s rights (equality) and their status in society with a certain paternalism and conservative attitude. Our second claim is that the circumstances under which the second Polish decision (2020) was issued illustrate the institutional (composition) and procedural characteristics of an illiberal constitutional court. The decisions of the Constitutional Court are also illustrative here, as even though it has not decided on abortion since 1998, in other human rights cases, among others, it acts in a way that confirms the observation that illiberal constitutional courts are on the rise. Illiberal constitutionalism, then, remind us that a turn to the constitution can undermine sexual and reproductive rights as much as it can expand them.