This article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.
Bibliographical noteFunding Information:
Dr Atina Krajewska holds degrees from the University of Wroclaw, Poland, and Humboldt University in Berlin, Germany, and has worked at UK universities since 2008. Her work brings together insights from socio-legal studies of healthcare, transnational legal theory, the sociology of law, and the sociology of professions. Within these general parameters, she uses sexual and reproductive rights as a case study to examine broader sociological and legal phenomena constituting health law. In the past, she acted as an ad hoc adviser to the Polish government and UK regulators and she has been a recipient of funding from the DAAD, the British Academy, the Leverhulme Trust, and the ESRC. She collaborates with a number of civil society organisations concerned with the improvement of sexual and reproductive rights in different countries across the world.
© The Author(s) 2021. Published by Cambridge University Press on behalf of the German Law Journal.
- Abortion law
- Constitutional backsliding
- Democratic breakdown
- Reproductive rights
- The rule of law
- Transitional society
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