Are Reproductive Rights and the Rule of Law Inextricably Linked? Experiences from Poland

On 8^th March, International Women’s Day, it is worth reflecting on the relationship between reproductive rights and the rule of law. In recent years, we have seen that in many countries, attacks on women’s rights—especially reproductive rights—have preceded broader rule-of-law crises. Poland offers a striking example. During an intense debate on the bus ride back from a seminar in Oslo on 14^th February 2025, which focused on the strategic uses of law by social movements, the authors delved into the connection between restrictions on reproductive rights and democratic backsliding. We were looking into possible scenarios for Poland—a country we are both citizens of—and wondered if the present attempts to restore judicial independence would lead to a stronger commitment to women’s rights, something that the coalition government promised and what brought them victory in 2023 elections. A year and a half after Poland’s political shift we can provide some insights into this topic, centred around a question: does a return to a rule-of-law-committed government automatically mean progress for reproductive rights?

The Polish case demonstrates how restrictions on reproductive rights were not just about gender but were integral to a broader transformation of the legal order. The near-total abortion ban imposed by the Constitutional Tribunal (CT) in October 2020 was made possible only because the judiciary had already been undermined. The ruling was the product of a CT packed with politically-aligned judges, lacking independence and legitimacy. As Krizsán and Roggeband (2021) argue, the backlash against gender equality in Poland was a crucial aspect of the country’s broader legal regression. The ruling itself was legally controversial—not only for its substance but for the manner in which it was issued. It overruled a previous constitutional judgment without proper justification, highlighting the extent to which Poland’s constitutional framework had been distorted (for more detailed analysis of the judgment and its significant shortcomings, see ‘The Judgment That Wasn’t’ by Gliszczyńska-Grabias and Sadurski).

The response to this decision, however, was not only one of mass protests but also strategic legal action. As Kubal’s research shows, over a thousand Polish women took their cases to the European Court of Human Rights (ECtHR) in what became known as the “Women’s Complaint.” This legal mobilisation reframed the abortion ban as not just an issue of reproductive rights but a rule-of-law crisis. The applications challenged both the substantive restrictions on abortion and the illegitimacy of the CT’s ruling, positioning the issue within the broader context of Poland’s legal deterioration. In this sense, women’s rights activism became a frontline defence of the rule of law. Legal mobilisation against the CT’s decision was not just about reproductive autonomy but about resisting an increasingly authoritarian legal order. This was clearly reflected in the ECtHR’s judgment ML v Poland (2023), where the Court confirmed that Poland’s 2020 CT decision, resulting in a near-total abortion ban, violated the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR), given the ‘grave irregularities vitiating election of CT judges sitting on the panel […] compromising its legitimacy as a “tribunal established by law”’. 

However, the 2023 elections—celebrated as a turning point for Polish democracy—have not yet resulted in the restoration of reproductive rights. While the new government has committed to reversing many of the legal and institutional changes made under the previous administration, abortion law reform remains politically contentious. This raises a crucial point: the relationship between reproductive rights and the rule of law is not simply one of cause and effect. Authoritarian backsliding often begins with attacks on gender equality, as seen currently in the USA, but reversing legal decline does not necessarily mean that reproductive rights will be prioritised.

It could also be argued that anti-gender sentiments and the exclusion of women from the democratic project are not only characteristic of the enfant terrible of politics, the right-wing, conservative and fundamentally Catholic politicians. As Marcin Kościelniak points out in his recent book, the exclusion of women from the vision of citizenship is deeply rooted in the Polish state reconstructed after communist rule. Recent anti-gender mobilisations, which also contributed to further restrictions on abortion in 2020 through strategic legal mobilisation, have only reinforced the restrictions on women’s rights put in place by the Solidarity leaders in 1993.

Poland’s experience highlights the need to consider reproductive rights not as a separate issue from the rule of law but as a key part of its restoration. The assumption that judicial independence will automatically lead to gender justice is misguided. Women’s rights are often the first target of legal authoritarianism, but they are rarely the first priority in legal reconstruction. The ongoing struggle for reproductive rights in Poland serves as a reminder that a true commitment to the rule of law must include a commitment to gender equality. However, since gender is one of the key ‘forms of power that organize society’ as Judith Butler argues, anti-gender sentiments that exclude women from political community are also prevalent among rule-of-law advocates.  Hence, on this International Women’s Day, it is crucial to acknowledge that reproductive rights are not a peripheral issue in legal debates—they are central to the very nature of a just and democratic legal order.