The Authority Trap: Constitutional Erosion of Reproductive Rights in Poland

Abstract

This article examines two pivotal judgments of the Polish Constitutional Court on abortion, issued in 1997 and 2020, to explore the evolving role of constitutional adjudication in the erosion of reproductive rights. Through a comparative analysis of legal reasoning, socio-political context, academic critique, and dissenting opinions, the study reveals the argumentative continuity between the judgment despite significant differences in judicial legitimacy. While the 2020 judgment - widely criticized for its procedural flaws, court-packing, and populist influences - was delivered by a politicized bench, its legal foundation was laid in the earlier 1997 judgment, which also framed fetal life as constitutionally protected from conception. Moreover, the analysis highlights how abstract, decontextualized adjudication, detached from real-life implications, have been used to obscure the active engagement of non-state actors, particularly the Catholic Church, in legal mobilization. Drawing on legal texts, dissenting opinions, and socio-legal scholarship, the article challenges the notion that democratic backsliding began only after the populist surge, arguing instead that earlier judgments already exhibited exclusionary reasoning and a disregard for women’s lived experiences. By interrogating the symbolic authority of constitutional actors within a populist framework, the study contributes to broader debates on judicial neutrality, right-wing legal mobilization, and the instrumental use of constitutional courts as ideological enforcers. It concludes that restoring prior adjudicative standards alone will not suffice to protect reproductive rights or reverse democratic decline, calling instead for inclusive, context-sensitive approaches to constitutional justice.