CJ: Hello and welcome to the Feminist Law Podcast. I’m your co-host Courtney Jones.
CT: And I’m your co-host Clara Topiol. We’re both co-founders of the Feminist Law Project and final year law students who are very passionate about feminism and the law. Today on the podcast, we have Atina Krajewska, Professor of Law, Birmingham fellow and Head of Research at Birmingham Law School. Would you please introduce yourself?
AK: Hello Clara, it’s a real pleasure to be here. Thank you for inviting me. I’m half Greek and half polish, I’m an academic in Britain for the last 15 years, I studied Law in Poland and Germany, I came to the UK after my PhD and before I joined the University of Birmingham, I worked at the universities of Exeter, Cardiff, and Sheffield where I taught different subjects including health law, EU law, tort law, comparative law and statistical methods. My research interests include health law, in particular global health law and reproductive rights and justice, human rights, comparative law, and the sociology of law. My work falls broadly into a new sub-field of academic inquiry which I call the sociology of health law and this new developing sub-field of inquiry examines the impact of health law on society and the broader societal factors shaping the development of health law at the national, regional, and global levels. I’m very glad to be here, as I said, and I’m really looking forward to discussing my work with you.
CT: Thank you very much, that was a wonderful introduction. So, in your fascinating article called ‘Rupture and continuity: abortion, the medical profession and the transitional state: a Polish case study’, you focus on three main historical periods to examine the progress of medicine and the evolution of attitudes towards abortion rights in Poland. So, I’m wondering why did you decide to focus on these three key periods in particular, namely the Partition era, the second Polish Republic and the post-war period?
AK: Thank you. I’m really glad you liked the article. For years now, I’ve been trying to understand why abortion law in Poland after 1989 has been so restricted. In particular, I have been baffled by the behaviours of Polish doctors who refuse to perform abortions, even in cases permitted by the law. Where this in itself is not unusual, especially in countries where the Church hold considerable power, societies in Eastern Europe have all experienced very liberal abortion laws during the Socialist period between 1945 and 1989. I could not understand how it is possible that doctors who performed abortions under the Socialist system could change their attitudes and practices so suddenly, quickly and radically. So, I soon realised that in order to understand the Polish abortion law in practice today, I would have to embark on a long journey which eventually led me to discover typically for Central and Eastern Europe. The Polish medical profession has been closely linked with the state through the help and social care system. This close relationship meant that Polish doctors have been particularly vulnerable to ideological and systemic changes in government. I started my analysis of abortion law in the 19th century because this is when the medical profession fully emerged on the Polish territories, which at the time belonged to the Russian and Habsburg Empires. It is then that the links between the medical profession and states becomes institutionalized through an insurance system, supervised by the State. In my view, it is not really meaningful to speak of a Polish medical profession during that time as they learned and practiced medicine in Imperial contexts. Polish doctors exist of course and many of them became involved in the Polish Independence movement. This is why this period, I had to start with my analysis in the 19th century. The period of the Second Republic is important because Poland regained its independence after a very long time. During this period, the first Polish chambers of positions were created, and the Polish Criminal Code was adopted in 1932. The Code contained one of the most liberal abortion provisions in the Western World at the time. It permitted abortion if the life or in cases where the life and health of the woman was at risk. This ground was interpreted broadly. And in cases where pregnancy was the result of an illegal act such as rape or incest. The decision had to be certified by two medical professionals. This period in Polish history is absolutely fascinating to me. First, the majority of doctors did not support reforms and it was mainly lawyers who supported the liberalization of abortion law. However, a small group of doctors and healthcare professionals and a group of literacy, very famous at the time, emerged during that time and they gave the impetus for legal change. So, although they did not achieve their goal, namely for decriminalization of abortion, their ideas did not disappear completely. Their arguments re-emerged after the Second World War when Poland put itself under the influence of the Soviet Union and this is the third period which I analyse in my paper. This period is important because a new liberal Code was adopted. This Code permitted abortion on socio-economic grounds which was typical for socialist states but quite unusual in comparative terms across the world. As a result, there were officially nearly 170,000 abortions a year in Poland and women’s mortality dropped dramatically. By the end of that period, things changed. In the 1980s, there was an alliance between Conservative healthcare professionals and the solidarity opposition movement. These doctors, these conservative catholic doctors, were elevated to positions of power in the reinstated chambers of positions after the collapse of the Socialist system in 1989. This is why I changed these three very very long periods and I started so early because the paper really traces the relationship between the patterns of professionalization of the medical profession and the development of abortion law. I hope that answers your question.
CJ: Yes, it does, thank you so much for that. Before I ask the next question, I did want to follow up on something. You mentioned that even when abortions were legal, doctors would refuse to perform them. Was this permissible by law? Were they allowed to refuse to perform abortions for example for religious purposes?
AK: It depends. So, I started my analysis because I was baffled by the behaviour of doctors in the last 30 years. This is where the law permitted abortions in certain circumstances. But, the doctors were very very conservative in their behaviour, very restrictive and hindered access to abortion in many cases. They were allowed to invoke the so-called conscientious objection clause so they could refuse to perform abortion on religious grounds, however, this is not always what happened. In many cases, Polish women were refused to access pre-natal diagnosis, they were sent from one doctor to another, there were delays in their access to abortion services without really any grounds. This is in fact illegal or was illegal. However, Polish doctors were never prosecuted and never really faced any negative consequences of their behaviour. That was in fact disregarding the law.
CJ: Right so in theory then, it was against the law but in practice, there were never any consequences.
AK: Yes, exactly. I should also mention that during the Socialist Period, when the very liberal abortion law was in place, there was no right to invoke the conscientious abortion law, there was no conscientious abortion clause, but in practice, anecdotal evidence suggests that doctors used to trade and organise the work accordingly so if there were Catholic doctors who objected to abortions, there were other colleagues who took these obligations upon themselves and performed the abortions. These cases, I should say and should mention, were few and far between. As far as I know from existing data and research, there were not many of these cases. So, the vast majority of doctors under the Socialist period performed abortions without any problems. This suddenly changed in 1989 where the majority of doctors suddenly started refusing to perform abortions.
CJ: Thank you for that explanation. In your article, you argue that ‘the development of Polish abortion law constitutes an example of what should be called dialectical transformations’. Could you please explain what that concept means?
AK: Of course. I understand this might be a rather unusual term. It refers to the pattern of development of abortion law in Poland. Often, the development of abortion law is seen as linear or in linear terms. We see or we could observe, and this is often how it has been analysed, a development from restrictive to more liberal regimes, for example Ireland and many countries in Latin America have gone through this type of development. They used to be very restrictive, they used to witness restrictive abortion laws and with time, this has changed, and abortion law has been liberalised. What I have tried to show in my article is that in some countries, abortion law develops dialectically. It changes from restrictive to liberal to restrictive. Professional groups and organisations, especially healthcare and legal professions, influence this development. The concept of dialectical transformations allows us to see how, in some contexts, certain institutions and actors operating on the peripheries of one institutional system become dominant players in a dominant system as a result of particular critical junctures and systemic change. Institutions displaced in one system may submerge to a level of latency so that they become invisible for a while but the values and structures on which they are based are never completely lost. Such institutions may often reappear in a modified form after prolonged periods of suspension. To give you an example, which is an example that I use in my article, liberal physicians were in the minority in the 19th century. They strengthened their position in the 2nd Republic enough to influence the creation of the Criminal Code in 1932. However, they remained ostracized before World War II and ultimately failed to convince the government to decriminalize abortion. They really were in the opposition. The majority of the medical profession really did not support legal reforms in this respect. Nevertheless, their interest became aligned, however briefly, with those of the Socialist government supporting the introduction of a very liberal abortion legislation after the Second World War. During the Socialist period, they became the dominant party of the abortion discourse. Later in the Socialist Period, Catholic Conservative doctors became a minority, at least officially. Those doctors then became powerful again in 1989. So, as a result of their interventions, supported by the Catholic Church, a new law was introduced which allowed abortions in limited circumstances. This is how this pattern of development has emerged in Poland, has taken place, and this is what I call dialectical transformations.
CT: Thank you for this precision, that was really interesting and made a lot of sense so thank you for that. My next question is that we are all aware that Poland decided to ban abortions since 2020. Up until the decision to ban legal abortions, what was the general attitude and trend towards abortion in Poland?
AK: The answer to your question will depend on whose attitudes and what trends you are referring to. Polish society is usually seen as traditional, conservative, and Catholic in its majority. However, in my view and I think this is now widely accepted, there was never really a support for the restrictive changes to abortion law implemented in 1993. So, what happened in the early 90s was that after the Socialist system collapsed in 1989, quickly, the Catholic Church lobbied with Catholic doctors for the adoption of very restrictive legislation. This was adopted in 1993, as I said. Abortion was lawful in three circumstances: where the pregnant woman’s life and health were at risk, where medical examinations suggested a high risk that the fetus would suffer severe and irreversible impairment or an incurable illness that could threaten its life or where the pregnancy was a result of an illegal act, rape, or incest, up to 12 weeks of pregnancy. There was never real support for these changes that were introduced in 1993. However, with time, opinion polls started to see and show growing support for the so-called abortion compromise: the introduction of that law that I just mentioned. This was a very misleading term. In 1993, there were huge protests when this law was adopted. The majority of society did not support it and it was really mainly the alliance between the government, the Catholic Church and the Conservative parts of the medical profession which led to the adoption of that law. With time, there was growing support for that abortion compromise, the misleading term as I said, and there were also some worrying trends that young people started to support restrictive regulations. People were ambivalent about whether to support liberalization or not support further restrictive changes to the law. However, even if this is true and we have to take into account the fact that in controversial issues of this kind, people might declare certain values in public but not necessarily follow them their private lives which is very clear in the case of abortion in Poland and every other country, throughout the whole period between 1993 and 2020, women continued to have abortions. The estimates vary and varied from 80,000 to 200,000 abortions per year. The majority of those abortions were done in a clandestine way: they were under the surface. The officially registered abortions, the numbers, varied from 200 to 1,100 abortions per year. These estimates mean that regardless of any declarations, Polish society accepted abortion as part of life. Unfortunately, the medical profession, if we are talking about attitudes to abortion before 2020, unfortunately, the Polish medical profession remained withdrawn and passive in public debates about abortion. In practice, supporting the existing status quo, what is worse, as I mentioned earlier, many doctors and hospitals openly hindered access to lawful abortion services for women. We have many cases which resulted before the European Court of Human Rights and in these cases, all of these cases, Poland lost. They were all cases where women were denied access to lawful abortions. There was a case of Dischunz who was denied abortion although the pregnancy constituted a risk for her health. Eventually, she had to give birth to a child which led to her loss of sight. There was another case of a woman who was denied access to genetic testing and was misled about the results of these tests and gave birth to a child with severe genetic conditions and malformations. This was an absolutely horrific case. The court held that the article 3, the prohibition of inhumane treatment, was violated in this case. Another case where a girl who was at the time 13 years old was raped by a peer and she was denied access to lawful abortion despite the fact that the law clearly provided for access to abortion in cases of this kind. What’s more, the hospital separated her from her mother and briefly stripped the mother of her parental rights and responsibilities. This was eventually leaked to the press and led to huge outrage in society. So, this case then resulted in another pronouncement of violation of article 3. So, we can see that it all depends on whose attitudes we are talking about: the Conservative Catholic minority. There were people who really supported the restrictive abortion law, the majority I think were ambivalent to say the least but mostly against this kind of behaviour. Polish women have been suffering of this in unimaginable ways because of many, not all, healthcare professionals for many years. I don’t know if this answers your question.
CJ: Yes, it very much does. Thank you for this very comprehensive answer. I just wanted to follow up on something: you mentioned that the attitudes of young people leading up to the decision of banning abortion were often supportive of the decision to ban abortion. This seems a little bit unusual so could you maybe explain why you think that was the case? That young people were supportive of the decision to restrict abortion?
AK: Yes, I should clarify. They did not support the decision of the Constitutional Tribunal in 2020. Absolutely not. They were the ones who led the protest in 2020. However, in the early 2000s, there was a slight dip, a trend which suggested that many young people especially before they entered reproductive age fully supported restricted abortion law. I think this is now gone, this is not the case, and we see young people absolutely support the liberalization of abortion law. They were the ones who led and gave huge impetus to the protest in 2020. So, what I think I should clarify is that in my view, the abortion law in Poland has been conservative and restrictive for many years. The 2020 decision, about which we are going to talk in a second, went even further in its restrictions. So, it simply meant that almost all abortions are banned under the Polish law.
CT: In today’s feminist news roundup, the BBC is facing backlash following a headline many claim to be sexist after the resignation of New Zealand’s PM Jacinda Arden. The headline included the question ‘can women really have it all?’. Many who pushed back against the headline pointed out the sexist connotations associated with this question.
CJ: In the US, lawmakers in New York passed an amendment to the State Constitution that would codify reproductive rights and protect the right to abortion. The amendment will have to be tested by going to the ballot which is set to happen next year.
CT: Also in the US, the former chief People Officer at McDonald’s has been set to ignore a toxic culture within the company for years after being fired for sexual harassment.
CJ: Also, the maker of GenProbio has filed a lawsuit attempting to overturn Virginia’s abortion ban which includes banning the prescription of abortion medicine through telemedicine, claiming that federal regulations surrounding the medication should take precedence over the state law.
CT: Finally, in Scotland, the prison service is set to pause all movement of trans prisoners until a review is carried out. This arises after what the BBC said is ‘outcry about the case of Isla Bryson, a trans woman convicted of rape of two women before changing gender’.
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CJ: The music for this podcast was sourced from Pixabay.com.
CT: Thanks for listening!
Transcribed by: Clara Topiol