The Women’s Complaint: sociolegal mobilization against authoritarian backsliding following the 2020 abortion law in Poland

ABSTRACT

The decision of the Constitutional Tribunal in October 2020 has severely curtailed women’s reproductive rights in Poland. Mass protests ensued. This article focuses on the untold story of a productive rupture that channelled the protesters’ efforts into a mass legal mobilization against the tribunal’s judgement to the European Court of Human Rights. These applications, known as the “Women’s Complaint,” were filed by over one thousand Polish women. Triangulating between analysis of interviews with human rights lawyers and feminist activists, and the legal reasoning of the petition, this article’s original contribution traces the evolution of the Women’s Complaint from a reproductive rights dispute to a challenge to the government’s authoritarian backsliding to better understand the relationship between social conflicts and legal mobilization. Reproductive rights and democratic values are inextricable; threats to one reinforce threats to the other. The Women’s Complaint is about women standing up for their reproductive rights and – in effect – spearheading a much broader rights-based litigation against authoritarianism.

KEYWORDS:

• Reproductive rights
• Poland
• European Court of Human Rights
• legal mobilization

Acknowledgments

The author would like to thank all the women, human rights lawyers, and activists in Poland interviewed for this study. I am also very grateful to Lynn Mather for her thorough reading of this paper and helpful comments on the dispute transformation framework.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. This figure might be a significant underestimate as the CBOS study was conducted on a random and representative sample of adult Poles, while young people under 18 also actively (and in great numbers) participated in the street protests.

2. “Communication” is a formal term used by the ECtHR and denotes the notification of the application to the respondent Government.

3. The Law and Justice (PiS) Party has been in power in Poland since 2015 and has been described as authoritarian and populist by many scholars, for example: Heino Nyyssönen and Jussi Metsälä. 2020. “Highlights of National History? Constitutional Memory and the Preambles of Post-Communist Constitutions,” European Politics and Society 21(3): 323–340; Bojan Bugaric and Alenka Kuhelj. 2018.“Varieties of Populism in Europe: Is the Rule of Law in Danger?” Hague Journal on the Rule of Law 10(1): 21–33; Radoslaw Markowski. 2019. “2019” Hague Journal on the Rule of Law 11 (1): 111–132.

4. See the cases of Grzęda v Poland (no. 43572/18), Dolińska-Ficek v Poland (no. 43447/19), Ozimek v Poland (no. 57511/19), Brodowiak and Dżus v Poland (nos. 28122/20 and 48,599/20), Biliński v Poland (no. 13278/20), Pionka v Poland (no. 26004/20), Juszczyszyn v Poland (no. 35599/20), Żurek v Poland (no. 39650/18), and Tuleya v Poland (no. 21181/19, and no. 51751/20), and the press releases in the judgements Xero Flor w Polsce sp. z o.o. v Poland (no. 4907/18) and Broda and Bojara v Poland (nos. 26691/18 and 27,367/18), Reczkowicz v Poland (no. 43447/19), Advance Pharma Sp. z o.o v Poland (no. 1469/20).

5. “That little article we wrote didn’t have any empirical focus, it was not in any dramatic way theoretical, and I don’t think any of us initially thought it to be any kind of major piece of work. It was a nice idea from my point of view” (William Felstiner in Olesen and Hammerslev 2021, 303).

6. All quotes were translated from Polish are by the author.

7. The subsequent turn of the events before the ECtHR – known at the time of publication – has shown that the lawyers were right in limiting the pool of potential applicants to the ECtHR, as one group of cases from Women’s Complaint, known as A.M. and Others v. Poland (relying on the figure of the potential victim), was declared inadmissible. The Court observed that the consequences for the applicants of the 2020 Abortion law “were too remote and abstract” (ECtHR Registrar of the Court 2023) because the applicants “could not prove that they were themselves directly affected by the impugned legislation” (Katsoni 2023).

8. In the history of the ECtHR there was one more case which attracted such great numbers of individual applicants, McHugh and Others v United Kingdom (2015): 1,015 applicants. This litigation followed from Hirst v the United Kingdom (2005) and concerned prisoners’ voting rights. McHugh and Others was a strategic litigation spearheaded and designed by specific law firms in the UK.

9. The detailed description of the political conflict over the CT between Civic Platform and Law and Justice lies beyond the scope of this article. To understand the nitty gritty of the illegitimate election and appointment of judges see Sadurski (2019).

Additional information

Funding

This work was supported by the Leverhulme/British Academy small research grant under Grant SRG20\200460 and British Academy under Grant 2UFoHS\100003.

Notes on contributors

Agnieszka Kubal

Agnieszka Kubal is an Associate Professor at SSEES, UCL; she is a sociolegal scholar specializing in migration and human rights.