-Karolina Kocemba, Maria Skłodowska-Curie Fellow, Erasmus University Rotterdam
This is the tenth post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
In recent years, reproductive rights have come under increasing pressure in a number of democratic states. These developments have coincided with broader processes of constitutional and rule-of-law crisis, democratic backsliding, and the rise of populist governments. Although constitutional courts are expected to act as guardians of rights, in several recent cases they have become the institutions through which reproductive rights were restricted. In October 2020, the Polish Constitutional Court significantly restricted access to abortion by removing the foetal-abnormality ground, while the U.S. Supreme Court overturned the landmark decision in Roe v. Wade through Dobbs v. Jackson Women’s Health Organization (2022). In other countries, access to abortion has also been restricted, albeit in much subtler ways through regulation. In Hungary, additional consultation requirements were introduced, often involving the obligation to listen to the foetal heartbeat. In Italy, anti-abortion activists were granted access to abortion clinics and consultori. These developments are the result not only of long-standing right-wing legal mobilization by networks of NGOs and advocacy groups, but also of favourable political and constitutional opportunity structures arising from constitutional crises, institutional manoeuvres such as court-packing, and the actions of populists and autocrats in power. This raises a broader question: how can women’s rights and reproductive rights be defended under such conditions?
As Caruso and Stambulski observe in the introduction to this symposium, contemporary militant constitutionalism seeks to respond to current threats to the liberal democratic order. Yet its strength cannot rely solely on courts and constitutional institutions, and its legal dimension must be complemented by a social one. In this blogpost, I argue that, in the field of reproductive rights, militant constitutionalism often manifests itself through legal mobilization. Across Europe, lawyers, activists, NGOs, and social movements have developed new strategies to defend reproductive rights under increasingly adverse political conditions. I identify three dominant forms of this counter-legal mobilization: rights re-alignment in Poland, constitutional prevention in France, and transnational mobilization (initiative My Voice, My Choice). These strategies operate at multiple institutional levels – from administrative interpretation and supranational litigation to constitutional reform and EU-level activism. While distinct, all three forms can ultimately be understood as transnational responses to contemporary threats to reproductive rights.
Poland: Rights Realignment
Poland offers an instructive example of how legal resistance can emerge during a constitutional crisis. Reproductive rights were significantly curtailed by the Constitutional Court’s October 2020 ruling – the decision that itself resulted from years of right-wing legal mobilization. By effectively eliminating the vast majority of legal abortions in the country, the judgment sparked one of the largest waves of protest in Poland since 1989. Yet legal resistance had to develop within a highly unfavourable political environment, shaped by a right-wing parliamentary majority and a broader constitutional crisis marked by court-packing and persistent concerns over the independence of the Constitutional Court. Constitutional opportunity structures available to pro-choice actors had been significantly narrowed, forcing them to seek alternative legal venues beyond constitutional litigation. These circumstances raised a crucial question: whether, and in what ways, mass social mobilization could be translated into legal action under such conditions.
Reproductive-rights organizations were therefore forced to rethink and adapt their strategies. The most important actor in this field was FEDERA and the lawyers associated with it. Rather than pursuing constitutional litigation before a captured Constitutional Court, they developed two alternative strategies. The first focused on administrative advocacy and the strategic reinterpretation of existing rights within the domestic legal framework. The second relied on supranational litigation, particularly before the European Court of Human Rights. As abortion restrictions triggered a nationwide debate, FEDERA and its lawyers became increasingly visible in the media as experts on reproductive rights. Women who had been denied abortions in hospitals began contacting the organization, and lawyers intervened in such cases before the Patient’s Ombudsman. They argued that abortion remained legal when the pregnancy resulted from a crime or when the life or health of the pregnant woman was at risk, thus should include threats to mental health. This interpretation was confirmed first by the Patient’s Ombudsman and the Ministry of Health under the Law and Justice government, and later reaffirmed by the post-2023 liberal government through guidelines issued for hospitals and prosecutors.
The second major legal mobilization strategy pursued by pro-choice actors was to bring the cases before the European Court of Human Rights. These efforts took two forms. The first involved joining the grassroots initiative Women’s Complaint (Skarga Kobiet), for which lawyers associated with FEDERA prepared a template application, while being fully aware that not all cases were ideal vehicles for landmark ECtHR judgments. Importantly, organizations consciously attempted to transform the energy generated by mass protests into legal action. The initiative proved enormously popular, as approximately one thousand women submitted complaints. Although many of these applications were declared inadmissible because the applicants were considered merely “hypothetical victims”, the ECtHR found a violation of Convention in A.R. v. Poland, where legal uncertainty surrounding the Constitutional Court’s abortion judgment forced the applicant to seek an abortion abroad.
The second category of cases pursued by lawyers associated with FEDERA consisted of more traditional strategic litigation. One example was M.L. v. Poland, where a woman was forced to travel to the Netherlands after a scheduled abortion was cancelled following the Constitutional Court’s judgment. The ECtHR found that Poland had violated the Convention. However, its reasoning did not focus primarily on the right to abortion itself. Instead, it centred on rule-of-law concerns, particularly the fact that some judges of the Constitutional Court had been improperly appointed and it became politicized, meaning that it could no longer be regarded as a lawful tribunal. Importantly, the ECtHR questioned the legitimacy of the Polish Constitutional Court, referring to its earlier rule-of-law judgments concerning irregular judicial appointments.
Rather than relying on a packed Constitutional Court, pro-choice actors turned to administrative bodies and supranational institutions, transforming social mobilization into legal action. In doing so, the defence of reproductive rights became closely intertwined with broader struggles over the rule of law.
France: Constitutional Prevention
France illustrates a different form of defending reproductive rights, one that emerged in a country where such rights already enjoyed relatively strong protection. On International Women’s Day in 2024, France enshrined the right to abortion in its Constitution. Unlike the Polish case, this mobilization did not develop in response to existing domestic restrictions. Instead, it was driven by developments abroad and concerns that rights perceived as secure could nevertheless become vulnerable. Discussions on the constitutionalization of abortion had already been taking place among reproductive-rights organizations, but they intensified after the restriction of abortion in Poland in 2020 and gained further momentum following Dobbs v. Jackson Women’s Health Organization (2022), which triggered both public pressure and parliamentary debates on the issue. The case should therefore be understood not only as a domestic mobilization, but also as a transnational one. As Bottini, Bouaziz and Hennette-Vauchez note, the reversal of Roe v. Wade became a key argument for constitutional reform and prompted the French government to convey a “universal message of solidarity to all women.”
Several political groups drafted competing proposals, there was strong support from the Prime Minister, and public support remained exceptionally high. The constitutional amendment was the result of a long political process involving actors from across the political spectrum, including feminist organizations, which emphasized the importance of constitutional reform in the broader context of democratic backsliding and the global success of conservative and authoritarian movements. The underlying lesson was simple: rights that appear secure can be rolled back once such actors gain political power. The principal objection came from the Senate, which argued that abortion rights were not under threat in France and that the Constitution should not be amended in response to foreign legal and political developments. However, mobilization extended beyond formal lobbying channels, and organizations reportedly encouraged granddaughters of several conservative senators to contact their relatives directly and advocate support for the constitutional amendment. After months of debates, hearings and negotiations, the Macron government proposed a compromise constitutional amendment. Although the final wording was weaker than originally intended, proponents concluded that securing constitutional protection – even in a diluted form – was preferable to preserving the status quo. Both chambers ultimately accepted the compromise.
This strategy can be understood as constitutional prevention: the use of constitutional law not to reverse existing authoritarian measures, but to prevent possible future backsliding. Constitutions here operate not only as legal frameworks, but also as instruments of anticipatory democratic self-defence. In contrast to Poland, where constitutional opportunity structures had largely been closed by constitutional capture, the French case demonstrates how favourable institutional conditions can still be strategically used to entrench reproductive rights. The French case also demonstrates the transnational nature of contemporary legal mobilization. It was inspired by restrictions introduced elsewhere, and subsequently became a source of inspiration for constitutional debates in countries such as Luxembourg and Spain and inspired another mobilization on a European level – My Voice, My Choice Initiative.
My Voice, My Choice: Transnational Mobilisation
The citizens’ initiative My Voice, My Choice was launched by the Slovenian NGO Inštitut 8. marec in response to recent developments in abortion law around the world – most notably the restrictions introduced in Poland and in the United States. It was also inspired by the constitutionalization of abortion in France and, by the Slovenian experience, where abortion has enjoyed constitutional protection from 1991. Its central goal was to secure European financial support for access to abortion across borders.
This represents a different form of legal mobilization, as it operated primarily at the social level. The legal solution was not developed through strategic litigation, as in Poland, nor through constitutional debates over wording, as in France. The NGO itself is not a legal organization and had to seek the support of lawyers and legal experts in order to develop a proposal compatible with EU law. The proposal itself sought to overcome the limits of EU competences in the area of reproductive rights. Rather than attempting to harmonize national abortion laws, it proposed the creation of a European financial mechanism supporting cross-border access to abortion services. The campaign required mobilization in every member state of the European Union, as the European Citizens’ Initiative mechanism required the collection of one million signatures. It succeeded thanks to cooperation with more than 300 organizations across Europe, supported by social media campaigns, volunteers, celebrities, and ten supportive governments. Activists also engaged in sustained advocacy within EU institutions, including individual meetings with MEPs and efforts to build support within the European Parliament and the Commission. The process of collecting signatures itself generated public debate about abortion across the European Union, and stimulated discussion within the European Parliament, where debates and resolutions strengthened democratic support for the proposal at the European level.
After gathering more than 1.2 million signatures, the initiative entered the institutional phase of the European Citizens’ Initiative process. The European Parliament adopted a resolution supporting the initiative and calling on the Commission to establish a voluntary financial mechanism facilitating cross-border access to abortion. Although the Commission ultimately declined to create a new dedicated fund, it acknowledged that existing EU financial instruments could be used to support access to safe abortion services. The issue was subsequently incorporated into the EU Gender Equality Strategy for 2026–2027.
The significance of My Voice, My Choice lies not only in its institutional achievements but also in the transnational mobilization it facilitated. Reproductive-rights advocacy increasingly bypasses the nation state, seeking opportunities within multilevel European governance.
Conclusion
The three cases discussed above demonstrate that legal mobilization takes different forms depending on the available political opportunity structures. In Poland, mobilization assumed the form of rights realignment within a restrictive legal environment. In France, it took the form of constitutional prevention, seeking to entrench rights before they came under attack. At the European level, My Voice, My Choice illustrates how reproductive-rights advocacy can become transnational both organizationally and institutionally.
What unites these strategies is their ability to identify and exploit political, legal, and constitutional opportunity structures that remain available even when traditional avenues for protecting rights become ineffective. The cases discussed here demonstrate that when constitutional opportunity structures are closed, as in Poland, activists may redirect mobilization towards alternative institutions, whereas favourable constitutional opportunity structures, as in France, can be used proactively to entrench rights before they come under attack. Taken together, these cases illustrate how pro-choice actors have adapted their strategies to changing political and legal environments and developed forms of counter-legal mobilization in response to earlier right-wing legal mobilization that sought to restrict reproductive rights through courts, legislation, and constitutional change.
The cases also demonstrate that legal mobilization rarely emerges from legal actors alone. In each example, legal strategies were rooted in broader social mobilization and depended on the ability to transform collective grievances, public protests, and political demands into legal claims and institutional action. Legal mobilization therefore appears not as an alternative to social mobilization, but as one of its possible continuations. Moreover, these forms of mobilization do not remain confined within national borders. Restrictions introduced in one country generate reactions in another, while successful strategies travel across jurisdictions and inspire new forms of action. The defence of reproductive rights has therefore become increasingly transnational. Militant constitutionalism in the field of reproductive rights increasingly operates beyond the state. Rather than relying exclusively on constitutional courts, it is enacted through administrative bodies, supranational institutions, transnational networks, and collective forms of legal mobilization. The future of reproductive rights in Europe may therefore depend less on single electoral victories than on the ability to sustain long-term legal mobilization across multiple institutional levels.
This blog post is based on research conducted within the REPRO-NETS project, grant agreement ID: 101207242, funded under Horizon Europe, Marie Skłodowska-Curie Actions.
Suggested citation: Karolina Kocemba, Symposium on Militant Constitutionalism Part X: Militant Constitutionalism Beyond the State. Legal Mobilization for Reproductive Rights in Europe, Int’l J. Const. L. Blog, June 19, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-x-militant-constitutionalism-beyond-the-state-legal-mobilization-for-reproductive-rights-in-europe/