Will Poland have a referendum on its abortion law, and what might the outcome be?

By Daniel Tilles

Why is this an issue?

Since January 2021, Poland has had a near-total ban on abortion following an October 2020 ruling by the Constitutional Tribunal (TK) that outlawed the most common form of legal abortion.

Previously, Poland had already had one of Europe’s strictest abortion laws, with terminations allowed in only three circumstances: if the pregnancy threatened the mother’s life or health, if it resulted from a criminal act (such as rape), or if the foetus was diagnosed with a serious birth defect.

The TK ruling outlawed the third of those justifications, which had previously accounted for around 98% of all legal abortions in Poland. The tribunal – a body widely seen as being under the influence of the ruling conservative Law and Justice (PiS) party – found that such abortions violated the constitutional protection of the right to life.

What was the reaction to the abortion ruling?

Among the public, overwhelmingly negative. It triggered the largest protests in Poland since the fall of communism, with hundreds of thousands of Poles – in particular the young and women, but also many others – coming out onto the streets. Polling both in the aftermath of the ruling and since has shown that a large majority of Poles are opposed to it.

However, in the current parliament, a majority support the ruling. These include PiS and its junior coalition partners, as well as the far-right Confederation (Konfederacja).

The centrist and left-wing opposition – who hold around 45% of seats – are opposed to it, though have different views on how it should be overturned and what should replace it.

Why is there now talk of a referendum?

Last month, two opposition parties – the agrarian, centre-right Polish People’s Party (PSL) and the centrist Poland 2050 (Polska 2050) – jointly declared that, if the opposition win power at this autumn’s elections, they should call a referendum to decide Poland’s abortion law within the first 100 days in office.

They argue that the law should be decided by the Polish people, not “politicians or bishops”, and claim that polling shows a majority of the public wanting a referendum.

Is that true?

Yes. In 2021, two polls found that a majority of Poles wanted a referendum on the abortion law: 55% in a United Surveys poll for the Wprost weekly in February, and 58% in a survey by the same pollster for the news website Wirtualna Polska in November.

Last month, after PSL and Poland 2050 had announced their idea, another United Surveys poll, this time for RMF24 and Dziennik Gazeta Prawna, found 64% in favour of a referendum. That included a majority of both government and opposition supporters as well as of men and women.

How can a referendum be called?

Under the Polish constitution, a referendum can be called either by an absolute majority (i.e. over 50%) of votes in the lower-house Sejm when at least half of MPs are present, or at the request of the president with the consent of the Senate (under the same voting rules as in the Sejm).

Given that most Poles want a referendum, will there be one?

At the moment, no. PiS, which with its partners has a majority in the Sejm, does not want one. It supports the current law and has no interest in it potentially being overturned. President Andrzej Duda, a PiS ally who will be in office until 2025, also would be unlikely to call one.

If PiS retains a majority at this autumn’s elections – or forms some kind of alliance with Confederation – it remains extremely unlikely there would be a referendum.

If the opposition win power, however, the idea would very much be on the table. Based on current polling, any opposition government would have to be a broad coalition ranging from centre-right to left. Two elements of such a coalition – PSL and Polska 2050 – have made clear they want a referendum.

However, another group that would likely be part of any government formed by the opposition, The Left (Lewica), has made clear it opposes a referendum, saying that it regards abortion as a fundamental women’s right that should not be put to a public vote.

The dominant force in any such government would be the centrist Civic Platform (PO). Its leader, Donald Tusk, last year declared his support for allowing some form of abortion on demand up to the 12th week of pregnancy – i.e. not just returning to the status quo from before TK ruling, but introducing an even more liberal law.

After Polska 2050 and PSL declared their support for a referendum, Tusk responded by saying that he is not in favour of the idea. He argued that all a referendum does is show the view of the public, which then has to be implemented by parliament anyway.

“We all know what the opinion of Poles on this issue is,” said Tusk. “There is no need for a referendum…The Sejm has to decide.”

However, one factor that may push the opposition towards a referendum is the fact that Duda can easily veto a more liberal abortion law passed by parliament whereas, according to the constitution, the outcome of a valid referendum is binding.

What would be the outcome of a referendum?

This is where things get tricky. Polling definitively shows that a large majority want to overturn the current near-total ban, but what they want instead can be harder to gauge, as survey results vary based on how the question is asked and what options are presented.

A poll last week by Ipsos for OKO.press and TOK FM found that 66% of Poles said they would take part “in a referendum asking if women should have the right to terminate a pregnancy up to 12 weeks”. Among those who said they would take part, 75% declared they would vote “yes” for such a right.

While that outcome seems decisive, some caveats should be added. First, the term “the right to terminate pregnancy up to 12 weeks” is not completely clear. It does not specify if people think there should be such a right in all circumstances (i.e. abortion on demand), or only in certain clearly defined ones.

Second, if a referendum were to take place, it is possible that it would not include that kind of a single “yes/no” question. Instead, it may, for example, give three choices: maintaining the current near-total ban, returning to the pre-TK-ruling status quo (a position favoured by PSL and Poland 2050), or introducing abortion on demand (as PO and The Left advocate).

What do other polls indicate?

All polls show growing support for liberalising the abortion law and most also indicate a majority in favour of introducing abortion on demand.

Last month, an IBRiS survey for the Rzeczpospolita daily found that only 11.5% of respondents wanted to maintain the current abortion law; 27% wanted to return to the status quo from before the TK ruling; while 57% favoured “the right to abortion up to the 12th week of the foetus’s life”.

Even among PiS supporters, the largest proportion (42%) wanted to return to the pre-TK ruling abortion law, compared to 39% that favoured sticking with the current near-total ban.

However, another IBRiS poll commissioned by Ordo Iuris, an ultraconservative legal and lobbying group, in January this year found that 45% of respondents said they “support the full protection of human life from the moment of conception” while 41% said they do not.

The same survey asked: “Do you support a complete ban on abortion while retaining the possibility of saving a mother’s life if it is threatened?”. It found that 35% supported such a ban while 56% were opposed.

Another recent poll – by Ipsos for OKO.press in November 2022 – found record support for allowing abortion on demand, with 70% of respondents answering yes to the question “should women have the right to terminate pregnancy up to the 12th week?” Only 24% said no.

Would the outcome of a referendum be implemented?

Under Poland’s constitution, the result of a national referendum is binding if the turnout is over 50%.

In the past some referendums have suffered from very low turnout (e.g. just 7.8% at the last one in 2015). But it seems likely that an issue as significant and divisive as abortion would bring over half the population to the polls. In 2003, when a referendum on Poland joining the European Union was held, 59% of voters participated.

Finally, there is the issue of the Constitutional Tribunal, which has found abortion to be unconstitutional, apart from when pregnancy results from a criminal act or it threatens the mother’s life or health.

That could scupper any attempt to liberalise the abortion law, especially given that, even if the opposition win power, the TK remains stacked with judges nominated by PiS and appointed by Duda.

Main image credit: Bartosz Banka / Agencja Wyborcza.pl

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.