Abortion liberalization. Referendum “the only alternative”? No. Where is the trap

“Until the next elections there will be no majority in this parliament for legal abortion, in the full sense of the word. Let's not fool ourselves” – he declared On August 23, 2024, Prime Minister Donald Tusk at the opening of the fourth edition of the Campus Polska Przyszłości. “We will do our best to alleviate the fate of all those who feel – and rightly so – discriminated against in Poland, but for now these will be half-hearted methods,” he said.

Let us recall: in mid-July the Sejm rejected the draft amendment to the Penal Code by the Left, which proposed partial decriminalization of abortion. The bill was rejected by the votes of Law and Justice, Confederation, and the majority of the Polish People's Party. Three KO MPs did not vote: Roman Giertych, Waldemar Sługocki, and Krzysztof Grabczuk. Giertych lost his position as deputy chairman of the club, Sługocki lost his position as deputy minister in the Ministry of Development and Technology, although he was on official business in the United States at the time of the vote. Grabczuk, as Tusk reported, was in hospital.

On August 26, he was asked about Tusk's words in program “Tok FM Radio Morning” Paweł Zalewski, MP for Poland 2050 and Deputy Minister of Defense. “I am convinced that there is a majority in this Sejm for a solution that is strategic and good, that is, giving the vote and decision on this matter to Poles, i.e. a referendum,” said Zalewski. He had previously presented the referendum as an antidote to the current situation. On July 29, in program “Political debate” in Polsat News Polityka argued: “Today politicians have lost – not today, actually by putting pressure on the Constitutional Tribunal, we know how it all looked – politicians have lost the mandate to decide on the shape of the law on abortion for the next 30 years. And this issue should be resolved by the nation. There is an instrument for this. We as the Third Way have talked about it, we are talking about it today. There is a referendum“.

And he continued: “It is clear that those who promise Poles a change in the law or a far-reaching liberalization of abortion law are simply lying, deceiving Poles. Well, this is, well, this is shocking to me, because the distribution of votes – you can see. The only alternative, the only effective instrument, is a referendum. This is what we are talking about.”

In response to the host's remark that the referendum could lead to further polarization of society, Zalewski responded with a declaration: “I, as a politician who will later have to carry out the will of Poles announced in the referendum, declare that I will carry out this will regardless of whether it is consistent with my worldview or not. Because it is consistent with my worldview that Poles in such situations should have the right to choose and that this choice is final.”

Is the deputy minister right?

It is not the first time that politicians from Poland 2050 have argued that a referendum on abortion law is the right way to achieve real change in the law. “If you want real change, it may be difficult in this Sejm – it will be much easier in Polish society. And that is why we are talking about a referendum,” he said on March 9, 2023 at a meeting in Tychy. Szymon Holownialeader of Poland 2050.

However, even after a binding referendum on abortion law, it does not have to be ultimately changed in accordance with the will of the citizens. We analyzed this was in March in Konkret24 after President Andrzej Duda did not declare that he would accept the result of the referendum in which the majority of voters would have been in favor of easing abortion regulations.

According to Polish law, the referendum initiative belongs to:

Assuming that the referendum on abortion law was held, its result is binding (i.e. more than half of those eligible to vote voted in it), and the majority of voters responded positively to the question or questions about easing the regulations on abortion – then according to the Referendum Act:

Regardless of who – the president, members of parliament or the government – ​​will be responsible for developing the bill resulting from the referendum result, work on the bill will proceed in the ordinary legislative procedure. This means that it is still up to politicians in parliament whether the relevant change to the bill will be voted on. As can be seen from the case from July this year, supporters of the changes may not have a majority. And this will still be required to pass the bill and submit it to the president for signature.

However, assuming that the new law will be passed, then – as in the case of any other law – the president is entitled to the right to veto and refer a bill to the Constitutional Tribunal for an examination of its conformity with the Constitution.

However, the president cannot do this “solely because he does not agree with the proposed change, because in this respect he is bound by the will of the nation expressed in the referendum” – explained in a commentary for Konkret24 dr Mateusz Radajewski from the Faculty of Law and Social Communication at SWPS University in Wrocław. “However, the president may freely use these instruments (veto, referral to the Constitutional Tribunal – ed.) when he finds that the act passed by the parliament does not implement the referendum result or does so in an improper manner. For example, if the nation votes in a referendum generally in favor of liberalizing abortion regulations without specifying the time limits for legal abortion, the president will be able to veto the act that will allow abortion on demand up to the 14th week of pregnancy, indicating that in his opinion the limit in this case should be the 12th week; similarly, the president will be able to veto an ordinary act if he finds that the implementation of the will of the nation expressed in the referendum requires the adoption not of an ordinary act, but of an act amending the constitution” – explains the expert.

A similar assessment was made in his analysis by Rafał Dubowski – an expert in legislation at the Sejm's Office of Expertise and Regulatory Impact Assessment. In April, the Chancellery of the Sejm forwarded its content to the editorial office OKO.press“However, the admissibility of the President of the Republic of Poland submitting a legislative veto against an act that constitutes the implementation of the binding result of a nationwide referendum, motivated solely by the fact that he assesses the matter that is the subject of the referendum differently, should be excluded,” Dubowski states.

And further: “If Article 125 sec. 3 of the Constitution (according to which, after meeting certain conditions concerning turnout, 'the referendum result is binding') is to have any practical significance, then such motives cannot underlie a legislative veto. However, one cannot exclude the admissibility of referring a bill to the Sejm for reconsideration for other reasons (e.g. because the bill does not properly implement the binding result of a nationwide referendum or contains legislative deficiencies)”.

The current ruling coalition does not have the majority to overturn the presidential veto. need 3/5 votes in the Sejm with at least half of the statutory number of deputies present. With a full Sejm chamber, this majority is 276.

According to Dr. Radajewski, if the president does not sign the act just because he does not agree with its content, he will “commit a constitutional offence, which may be grounds for holding him accountable before the State Tribunal”. “The Constitution guarantees freedom of conscience even to the President of the Republic of Poland” – notes the expert. He adds that it is possible to apply Article 131 section 1 of the Constitution of the Republic of Poland, i.e. “treating the president's conscientious objection as a temporary inability to perform his duties”. “Then, after the act is signed by the Marshal of the Sejm, the president could return to continuing to perform his duties” – explains the expert in an opinion for Konkret24.

However, such scenarios – taking into account the attitude of President Andrzej Duda so far – do not seem realistic. So until the supporters of the changes that the nation will vote for in a possible referendum have a majority in parliament to process them and until the president accepts this new law, the referendum is not “the only alternative” at all.