European Court: Polish Abortion Verdict Violated Woman's Rights

A court in Europe ruled Thursday that a 2020 Constitutional Tribunal judgment further restricting already limited abortion access in Poland violated a pregnant woman's right to respect for private and family life under the European Convention on Human Rights.

The applicant, a Warsaw resident identified in court papers as M.L., became pregnant in 2020. After her fetus was diagnosed with trisomy 21, or Down syndrome, she scheduled an appointment for an abortion at a Polish hospital. However, the Constitutional Tribunal determined that abortions because of fetal abnormalities are unconstitutional, a policy that took effect in January 2021.

Because of that policy change—which remains in effect and means that pregnant people in Poland can only receive abortion care in cases of rape or incest, or if the patient's life is at risk—M.L. could no longer terminate her pregnancy in her country.

"A return to the legal situation before the ruling of the Polish constitutional court is not enough—what is needed is access to legal abortion regardless of the reason."

"In her rapidly deteriorating mental state, M.L. had to organize a trip abroad within a few days, leaving her family and loved ones in Poland," her lawyers said, according toThe Guardian. "For an abortion, which only a few days earlier would have been performed for free in a nearby hospital, she had to travel to the Netherlands. She spent more than 5,500 zloty ($1,400)."

The European Court of Human Rights' Thursday decision was 5-2, with judges Krzysztof Wojtyczek of Poland and Péter Paczolay of Hungary dissenting. In its ruling that Article 8 of the European Convention on Human Rights was violated, the ECHR noted that the Polish tribunal included members appointed in a procedure that was found to be in breach of the treaty in a 2021 case.

The ECHR also unanimously declared inadmissible a separate case involving 927 women of childbearing age who argued they were potential victims of a violation of their rights as Polish law forces them to carry pregnancies to term even in the case of fetal abnormality.

Despite that denial, Federa, a Polish rights group that had lawyers representing M.L., celebrated the outcome of her case—which includes over €16,000 ($17,582) in damages—as a sign of broader progress.

"We fought for this decision for every woman living in Poland," Federa said in a statement. "This verdict is a milestone and another argument that Polish law, which causes so much suffering for women in Poland, must change."

"We expect the new Polish government to liberalize abortion law," the group added. "A return to the legal situation before the ruling of the Polish constitutional court is not enough—what is needed is access to legal abortion regardless of the reason."

The tightening of Polish abortion law occurred under the right-wing Law and Justice (PiS) party that was just ousted from power. Reutersnoted Thursday that "Poland's new liberal government has promised to protect women's rights and Prime Minister Donald Tusk vowed to present a bill making abortion legal until 12 weeks, although President Andrzej Duda may veto any such law."

Notes From Poland pointed out that "the various parties that make up the new coalition disagree on whether there should also be further liberalization of the law" and in addition to a veto threat from Duda, any policy change could be overturned by the Constitutional Tribunal, "all of whose current judges were appointed under PiS."

Since the "politically compromised" tribunal's 2020 judgment, the Polish government has abused "its powers to chase down alleged abortion-related activity threatens people's rights to privacy, autonomy, and health," according to Human Rights Watch (HRW). The group's September report shared stories of doctors as well as women and girls harassed by law enforcement.

When that HRW report was released, observers warned that similar crackdowns could occur in the United States, where GOP policymakers in over a dozen states—including Texas—have imposed near-total bans on abortion since the right-wing U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision last year.

This week, the U.S. Supreme Court agreed to hear a case that could limit access to abortion pills nationwide and the all-Republican Texas Supreme Court ruled that Kate Cox could not obtain an abortion in the state despite a lethal fetal diagnosis. Like M.L. in Poland, Cox, a 31-year-old mother of two, had to travel to receive abortion care.