Poland yet to comply with ECHR judgments on access to abortion

In September, the Committee of Ministers of the Council of Europe will consider Poland’s implementation of the ECHR judgment in a case concerning access to abortion (P. and S. v. Poland). According to the HFHR, the current legislation still does not guarantee effective access to abortion even when such access is provided for by law.

Last year, the Committee of Ministers refused to close supervision of the execution of the decision and noted the necessity for the Polish Government to provide information on guaranteeing effective access to legal abortion procedures. In a report, published on 21 June 2018, the Government indicated that the regulations in force guaranteed effective access to abortion and information on the options for performing the procedure. In the assessment of the HFHR, Polish authorities have failed to address the issues raised by the Committee of Ministers in a comprehensive and reliable manner.

The Foundation stressed in a position statement that it did not refer to the current substantive regulations, which indicate when abortion is allowed, but to the procedural aspects of abortion legislation, designed to ensure that women have access to abortion in cases provided for in law.

Inefficient procedure
Poland has not yet introduced an effective and speedy procedure that would guarantee that women can exercise their right to abortion. In the Foundation’s opinion, the opportunity to object to a medical opinion or certificate which was intended to allow to challenge a doctor’s decision refusing to perform the procedure does not meet such requirements.  According to the HFHR, the key drawbacks of this procedure are its excessive formalism, the inability to apply the procedure in the event of a doctor’s refusal to issue an opinion or a certificate, concerns about whether an objection may refer to a refused referral for medical tests, and the lack of a guarantee of a prompt and timely processing of an objection.

The Polish authorities should introduce an effective and expeditious procedure, which will enable women to have an abortion procedure carried out when it is permitted by law.

Access to information on abortion options
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.  From that moment on, no law directly imposes an obligation on any entity to inform about the possibility of performing an abortion with another doctor in the event the conscience clause is invoked. It is, therefore, possible that women’s right to abortion may be purely illusory, which may force women to look for illegal ways of terminating a pregnancy, which may endanger their health or even their lives.

Responding to a question from the HFHR, the Ministry of Health was unable to indicate any legislative activities that would remedy the situation. “The HFHR believes that it is necessary to introduce mechanisms which will ensure that access to legal abortion exists in situations where doctors invoke the conscience clause”, says Jarosław Jagura, a lawyer of the HFHR.

No effective remedy for breach of contract with public healthcare payer
In a report sent to the Committee, the Government indicated that a refusal to perform a legal abortion constitutes a medical institution’s breach of a contract with the National Health Fund, Polish public healthcare payer, which should result in the launch of an official inquiry. The Government also stated that the NHF did not receive any complaints from patients about refusals of abortion.

However, according to the data obtained by the HFHR, it appears that from 2008 to 2017 the National Health Fund conducted 4 proceedings to impose penalties on medical institutions in the event of failure to perform or properly perform a contract concluded with the National Health Fund with respect to abortion procedures. In one case, a contractual penalty was imposed; the remaining proceedings ended without the imposition of the penalty. According to the information provided by the Ombudsman for Patient Rights, between 2008 and 2017, the Ombudsman dealt with 20 complaints made in cases concerning refusals to perform an abortion procedure.

Administrative inquiries or proceedings for the imposition of contractual penalties cannot be considered an effective means of protecting women’s rights. Such measures are usually taken after an irregularity has occurred and there is no guarantee that they will be completed in time to enable the woman to obtain an abortion.

According to the Foundation, the Committee should continue to supervise the execution of the judgment in P. and S. v. Poland. The Committee should also ask Polish authorities to provide detailed statistics on the complaints against doctors or medical institutions that refused to carry out legal abortions and the sanctions imposed in the wake of such complaints.

The Foundation’s statement for the Council of Europe’s Committee of Ministers is available for viewing here.