A few years ago, Alicja Tysiac, a Polish woman who suffers from severe myopia, tried to obtain an abortion, arguing that carrying the child to term posed a grave risk to what remained of her sight. Two competent doctors disagreed and Ms. Tysiac’s petition was denied; her situation did not satisfy any of the three exceptions to Poland’s protective law on fetal life, under which abortion is legal only in cases of rape, serious fetal handicap, or grave health risk to the mother. Ms. Tysiac filed a “wrongful birth” suit in the European Court of Human Rights, claiming that the Polish government’s refusal of an abortion had violated her human rights. The Court, perhaps predictably, agreed, and awarded her 25,000 euros in damages.
After the European Court’s decision, Father Marek Gancarczyk, editor of Poland’s most widely circulated quality Catholic magazine, Gosc Niedzielny (Sunday Visitor), published an editorial that disagreed with the Court’s judgment in these terms: “Ms. Tysiac will receive 25,000 euro damages, plus the cost of the proceedings, for not being able to kill her child. In other words, we are living in a world where a mother is granted an award for the fact that she very much wanted to kill her child, but was forbidden to do so.”
Ms. Tysiac then sued Father Gancarczyk in the District Court of Katowice (the Silesian city where Gosc Niedzielny is published), claiming that the editor had defamed her by writing that she had wanted to “kill her child.” Amazingly, the Katowice District Court agreed and ordered Father Gancarczyk to pay the plaintiff US$11,000 in damages and to publish a court-dictated “apology” in his magazine. Father Gancarczyk rightly refused to do so and appealed the District Court’s decision to the Katowice Appeals Court—which recently ruled against Father Gancarczyk, too. A further appeal will be made to the Polish Supreme Court.
In the interests of full disclosure, let me note that Father Gancarczyk is a friend and that I have written essays for Gosc Niedzielny over the years. That being said, however, I shall also say that the decisions by the Katowice District and Appeals Courts are travesties of justice—and a disturbing sign that some of the worst judicial habits of Poland’s post-war past are, objectively speaking, alive and well, 21 years after the collapse of Polish communism. Which bad habits? The falsification of reality by judicial ukase (decree) is one. The punishment of legitimate opinion by coercive state power is another. The attempt to impose a new social order through the judicial usurpation of politics is a third.
For the sake of charity, it’s probably best to assume that the Katowice courts adopted these bad habits, not from the Stalinist past, but from the western European and Canadian present, where the judicial deligitimation and punishment of politically incorrect opinion has become something of a legal industry. The Katowice decisions also seem to reflect the unsavory tendency of American courts to wade into questions of the identity and boundaries of religious communities, questions that are really none of their business. The presiding judge of the Katowice Appeals Court, for example, opined that Father Gancarczyk’s editorial was, well, non-Christian: “Christianity is a religion of love,” she wrote in her decision, “and this is what the language of the Catholic press should be like.”
Poles struggled for many things during the remarkable decade that gave birth to the Revolution of 1989: the truth about their national identity and culture; the truth about their history; the right to determine their future as free men and women, and to do so as believers in the God of Abraham, Isaac, Jacob and Jesus. One thing Poles were most certainly not fighting for was judicial control of the editorial policies of Catholic magazines. That judges in a democratic Poland might dictate the rhetorical boundaries that Catholic publications must observe in their commentary on public affairs would have struck the heroes of 1989 as an absurdity; Poland had suffered enough of that in the decades after 1946. The Polish Supreme Court might keep that history in mind as it reviews the legal travesties that have taken place in Katowice.