Access to legal abortion: ECtHR judgments still not executed

The HFHR has sent a communication to the Council of Europe’s Committee of Ministers, addressing the absence of Poland’s full compliance with the judgments of the European Court of Human Rights issued in “Polish” cases concerning access to legal abortion. As the communication emphasised, there are no mechanisms in Poland that would guarantee that women can have practicable access to legal abortion.

Cases lost by Poland

The HFHR’s communication refers to three judgments issued in cases P. and S. v. Poland, R.R. v. Poland and Tysiąc v. Poland, in which the Court found that Poland had violated the European Convention of Human Rights. The applicants in these cases were entitled to an abortion under Polish law but medical personnel restricted their access to this health care service. Due to the lack of proper legal mechanisms, the applicants were prevented from exercising their right to access to legal abortion or faced material difficulties in exercising this right.

In anticipation of the upcoming CoE Committee of Ministers’ debate on the closure of the procedure for the execution of the judgment P. and S. v. Poland, the Helsinki Foundation called on the Committee to continue supervising Poland’s implementation of this judgment. The HFHR also stated that its communication did not refer to the existing legal framework for legal abortions but only discussed the procedural aspects that are supposed to guarantee that women can use abortion whenever the Polish law so allows.

Overly formalistic criteria for objecting doctors’ decisions

“In our assessment, there are no mechanisms that would guarantee that women have the effective and timely access to the lawful procedure of termination of pregnancy. Regrettably, the existing procedure for objecting against a certificate or opinion of a doctor who refuses to perform abortion is too formalistic and does not guarantee that the final decision is issued before the end of the period in which a pregnancy may be legally terminated”, says Jarosław Jagura, member of the HFHR legal team. “Also, the objection procedure does not ensure that a woman obtains accurate, full and objective information about whether she has the right to a legal abortion, and also information about the condition and health of the foetus”, Mr Jagura adds.

HFHR: women’s right to legal abortion illusory

In a 2015 ruling, the Constitutional Tribunal held that a doctor who refuses to perform a medical service on moral grounds was under no obligation to refer a patient to another facility where the patient can obtain this service. There is no person or institution that could refer patients who find themselves in such a situation to a proper facility where they are able to access the services they are legally entitled to. “The state should introduce measures that would ensure that the medical personnel’s reliance on the “conscience clause” does not deprive women of access to legal abortions. If otherwise, women’s right to a legal abortion will become illusory”, Jarosław Jagura explains.

The communication sent to the Council of Europe’s Committee of Ministers can be read here.