By restricting access to abortion in 2021, has Poland violated the European Convention on Human Rights? It was 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 8 June (A.M. & al. v. Poland), the ECHR ruled the application inadmissible, without, however, answering on the merits: the applicants, the Court held, had not provided evidence that they were directly and personally threatened by the amendments to the law on abortion in Poland.
Abortion remained for a long time, in practice, allowed in Poland under the communist regime. In 1993 a law restricted access to abortion, allowing it only in certain circumstances: in cases of rape, when the mother's health is threatened, or in cases of foetal malformation. In 2019, a group of Polish parliamentarians asked Poland's Constitutional Court to review the exception for cases of foetal 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 no longer possible to have an abortion in Poland in the event of foetal malformation, with no effect on the mother's health.
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 fill out an online form to submit a request to the ECHR. They argued, inter alia, of a violation of Article 8 of the European Convention on Human Rights, which guarantees the "right to respect for private and family life".
" READ ALSO Abortion is now practically banned in Poland
Application deemed inadmissible
Among the 8 applicants, several argued that they felt directly concerned by this anti-abortion measure, all being of childbearing age. Two of them felt 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 expressed concern that they would not receive adequate medical care in case the child they might become pregnant with a serious malformation.
However, the judges of the Court considered that the risk of a future violation of the applicant's rights could only very rarely be invoked in order to lodge 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 in the law", summarises the ECHR, which therefore ruled the application inadmissible and did not condemn Poland in this case.
" READ ALSO Poland: the quasi-ban of abortion enters into force
In written observations sent to the Court, 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 cannot be deduced from the text of the European Convention on Human Rights. Moreover, at the time of the adoption of the Convention in 1950, none of the States that participated in its drafting had authorized abortion in their domestic law. While abortion can be considered, under European human rights law, as an exception to the principle of protection of human life, in no case does it constitute a right that would be imposed on States despite their national legislation, argue the authors of these written observations.
Another case concerning abortion will soon be examined by the ECHR: a young British woman, carrying trisomy 21, wants to argue that the legislation in the United Kingdom (which allows abortion until birth in the case where the unborn child has Down syndrome) is a violation of the rights of people with disabilities.
