By Paul Sugy
Posted 3 hours ago, updated 3 hours ago
The European Court of Human Rights has dismissed an appeal against restrictions on abortion rights in Poland. FREDERICK FLORIN / AFP
The European Court of Human Rights has dismissed an appeal against a decision by Poland’s Constitutional Court that bans women from having an abortion even if the fetus is malformed.
Has Poland violated the European Convention on Human Rights by restricting access to abortion in 2021? The ECtHR was asked to provide an answer to this question, following a request from a Polish feminist association. In a decision published on June 8 (AM & al. v. Poland), the ECtHR declared the application inadmissible, without addressing its merits: the applicants, in the court’s view, have not produced any evidence that they were directly and personally supported by them Changes in the abortion law in Poland were threatened.
Abortions were allowed in practice in Poland under the communist regime for a long time. In 1993, a law restricted access to abortion, allowing it only in certain circumstances: in the case of rape, when the mother’s health is at risk, or in the case of a fetal malformation. In 2019, a group of Polish parliamentarians called on the Polish Constitutional Court to reconsider the exception provided for cases of fetal malformations; and in 2020 the Constitutional Court ruled that this exception was incompatible with Poland’s constitution (which guarantees “the protection of life”). Therefore, since January 2021 in Poland it is no longer possible to resort to an abortion without affecting the health of the mother in case of fetal malformations.
After a major mobilization against this measure, a feminist association, the Federation for Women and Family Planning (FEDERA), with the support of the Commissioner for Human Rights in Poland, proposed that women should fill out an online form to submit an application to the ECtHR. In particular, they argued a violation of Article 8 of the European Convention on Human Rights, which guarantees the “right to respect for private and family life”.
Also read: Abortion is now practically banned in Poland
The request was deemed inadmissible
Several of the eight applicants argued that they felt directly affected by this anti-abortion measure as they were all of childbearing age. Two of them believed there was a higher risk of conceiving a child with a malformation, while two others were pregnant when they submitted their application in 2021.
However, the judges of the court held that the risk of future infringement of the applicant’s rights can only very rarely be invoked when filing an application. “The plaintiffs have not presented any convincing evidence that they face a real risk of being directly harmed by the legislative changes,” summarizes the ECtHR, which therefore found the claim inadmissible and did not condemn Poland in this case.
Also readPoland: The de facto ban on abortion comes into force
In written submissions to the Court, former EU Health Commissioner Tonio Borg and several former judges of the ECtHR recalled that the ECtHR had never enshrined a right to abortion and that this right could not be derived from the text of the European Convention on Human Rights. Furthermore, at the time the Convention was passed in 1950, none of the States involved in its drafting had authorized abortion in their domestic law. The authors of these written observations argue that if abortion can be regarded as an exception to the principle of the protection of human life in the light of European human rights law, it is by no means a right that is imposed on states despite their national laws.
Another abortion-related case is soon to be examined by the ECtHR: a young British woman, a carrier of trisomy 21, wants to argue that UK legislation (allowing abortion until birth if the unborn child has Down syndrome) is illegal the rights of people with disabilities.