Abortion and abuses of constitutional review in the trajectory of Polish constitutionalism

Abstract This article examines access to abortion as a case study for assessing the constitutional status of women’s rights in Poland. It aims to explore various forms of constitutional abuses, including ultra vires actions, interpretive dishonesty, and abusive constitutional change, all of which have occurred since the country’s democratic transition. The article outlines four distinct phases of Polish constitutionalism: the transitional period, the liberal era, the illiberal shift, and the hybrid phase. It then analyzes significant changes in abortion law, primarily shaped by rulings of the Constitutional Tribunal. The article critically evaluates these decisions as judicial overreach, arguing that they not only contradict the text of the Constitution and the intentions of its framers but also defy the will of the current parliamentary majority and the prevailing social consensus. In conclusion, the article contends that illiberal constitutionalism, often viewed as an aberration, is in fact deeply embedded in a long-standing, previously overlooked pattern of abusive constitutional review, which has been used to instrumentalize the Constitution and deny the protection for women’s rights.