Poland yet to comply with ECtHR judgments on access to abortion

♦ In March, the Committee of Ministers of the Council of Europe will consider Poland’s implementation of the ECtHR judgment in cases concerning access to abortion.

♦ According to the HFHR, the current legislation still does not guarantee effective access to legal abortion.

The Committee of Ministers is a body of the Council of Europe responsible for, among other things, the supervision of Member States’ execution of judgments of the European Court of Human Rights. In March, the Committee will deal with three Polish cases concerning the absence of access to legal abortion, P. and S. v. Poland, R.R. v. Poland and Tysiąc v. Poland. In its communication to the Committee, the HFHR underlined that these judgments had not been fully implemented.

The Committee of Ministers has dealt with these cases before. In 2017, 2018 and 2019, the Committee of Ministers refused to close supervision of the execution of the relevant judgments and noted that the Polish Government should provide information on the effective provision of access to legal abortion procedures. In March 2019, the Committee expressed serious concerns that, despite the passage of 6 years from the judgment in P. and S. v. Poland, no measures have been taken to ensure effective access to abortion procedures in legally prescribed cases.

Objection to a doctor’s opinion – an ineffective procedure

Poland has not yet introduced an effective and speedy procedure that would guarantee that women can exercise their right to abortion. In the HFHR’s opinion, the opportunity to object to 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. The key drawbacks of this procedure are its excessive formalism, its inapplicability in the event of a doctor’s refusal to issue an opinion or a certificate, as well as the lack of a guarantee of prompt and timely processing of an objection. It is also unclear whether an objection may be submitted against the refusal of a referral for medical tests.

However, the most obvious evidence of the ineffectiveness of the opposition procedure is provided by statistical data. According to information obtained from the Ombudsman for Patients’ Rights, in 2019 an objection was filed by a woman who was entitled to have an abortion in accordance with Polish law. However, all doctors in a hospital whom she approached refused to perform the procedure, invoking the conscience clause. Ultimately, the patient’s objection was declared unwarranted by the Medical Board attached to the Ombudsman for Patients’ Rights. The Board decided that a doctor is lawfully entitled to refrain from providing a medical service that runs counter to his or her conscience. This example shows that the objection procedure, designed as a remedy for such situations, does not work in practice.

Moreover, in 2015, the Constitutional Tribunal ruled 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. Although the Government informed the CoE Committee of Ministers that this issue has been addressed in a legislative proposal, the draft law concerned is at an early stage of parliamentary works – it was tabled to the Sejm in January 2019 and it is still uncertain if the new law will be adopted.

No effective remedy for the breach of contracts with the public health care 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 further emphasised that reviews of contracts made with hospitals and outpatient clinics fell within the purview of the NHF.

However, the data obtained by the HFHR from the NHF show that the Fund has recorded 13 cases of an unfounded refusal to terminate a pregnancy in 2018-2019. However, the NHF neither initiated any inquiry nor imposed any penalty on facilities refusing an abortion.

In light of the above, administrative inquiries or proceedings for the imposition of contractual penalties cannot be considered an effective means of protecting women’s rights.

In the HFHR’s view, the Committee of Ministers should continue its supervision of the execution of the ECtHR judgments made in cases concerning access to legal abortion.