When Legal Fundamentalism Meets Political Justice: The Case of Poland

To Professor Martin Shapiro, With friendship, gratitude, and admiration The ruling of 22 October 2020 concerning termination of pregnancy in Case K 1/20, handed down by the body once known as the Polish Constitutional Court, has devastated the legal and social landscape in Poland. The decision ruled as unconstitutional the provision that allowed medically assisted termination in cases where prenatal screening or other medical considerations indicated a high probability of a severe and irreversible abnormality or an incurable disease of the fetus. This analysis argues that the ruling is the most serious attempt to discredit and humiliate the Polish Constitution of 1997, and stands as the ultimate proof of weaponising judicial review. The argument will be made that if one wishes to understand the extent of the capture of independent institutions by the ruling majority, the ruling under consideration must be read and considered in the light of a more general context. Only by going beyond and contextualising it, can one grasp the extent to which the constitutional profile of a state has been altered by methods of unconstitutional capture. The analysis argues that once we contextualise the ruling and view it in a more systemic light, there are important systemic signposts that will help to explain how we arrived here and, more importantly, what is next. These signposts, in turn, contain a cautionary tale of the institutional fragility that is relevant for liberal democracies.