By restricting access to abortion in 2021, did Poland violate the European Convention on Human Rights? It is to this question that the ECHR was summoned to answer, seized of a request orchestrated by a Polish feminist association. In a decision published on June 8 (A.M.
Abortion has long remained, in practice, authorized in Poland under the communist regime. In 1993 a law restricted access to abortion, only allowing it in certain circumstances: in the event of rape, when the health of the mother is threatened, or in the event of malformation of the fetus. In 2019, a group of Polish parliamentarians asked the Constitutional Court of Poland to reconsider the exception provided for cases of fetal malformation; and in 2020 the Constitutional Court ruled that this exception was incompatible with the Constitution of Poland (which guarantees "the protection of life"). Since January 2021, it is therefore no longer possible to resort to abortion in Poland in the event of malformation of the fetus, without effect on the health of the mother.
Following a major mobilization against this measure, a feminist association, the Federation for Women and Family Planning (FEDERA) proposed, with the support of the Commissioner for Human Rights in Poland, that women fulfill an online form for submitting a request to the ECHR. They argued in particular for a violation of Article 8 of the European Convention on Human Rights, which guarantees the “right to respect for private and family life”.
Among the 8 applicants, several argued that they felt directly concerned by this anti-abortion measure, being all of childbearing age. Two of them believed they had a higher risk of being pregnant with a malformed child, while two others were pregnant when they filed their application in 2021. They said they feared they would not receive adequate medical care in the event that the Any child they might be pregnant with would have a serious malformation.
But the judges of the Court considered that the risk of a future violation of the applicant's rights can only very rarely be invoked to introduce an application. "The applicants have not produced any convincing evidence proving that they are exposed to a real risk of being directly harmed by the changes to the law", summarizes the ECHR, which therefore deemed the application inadmissible and did not condemn Poland in this case.
In written observations sent to the Court, the former European Commissioner for Health Tonio Borg, as well as several former judges of the ECHR, recalled that the ECHR has never enshrined a right to abortion, and that this right does not can be deduced from the text of the European Convention on Human Rights. Moreover, when the Convention was adopted in 1950, none of the States that participated in its drafting had authorized abortion in their domestic law. If abortion can be considered, with regard to European human rights law, as an exception to the principle of protection of the life of human beings, in no case does it constitute a right which would be imposed on States despite their national laws, argue the authors of these written observations.
Another case concerning abortion will soon be examined by the ECHR: a young British woman, carrier of trisomy 21, wants to argue that the legislation in the United Kingdom (which authorizes abortion until birth in the where the unborn child has Down syndrome) is a violation of the rights of persons with disabilities.