On 29 January and 24 February 2021, the Center for Reproductive Rights and the Polish Federation for Women and Family Planning submitted a communication and supplemental information to the Committee of Ministers of the European Union, prior to the Committee’s meeting on 9-11 March 2021. In these, they outlined Poland’s failure to effectively implement three judgments by the European Court of Human Rights and related decisions of the Committee of Ministers in the cases of Tysiąc v. Poland, R.R. v. Poland and P. and S. v. Poland.
These three judgments each address distinct but overlapping issues regarding the ongoing and serious failures of the Polish authorities to ensure that access to legal abortion in Poland becomes a practical reality for women and adolescent girls and is not merely a theoretical entitlement.
For women whose health is at risk, as in the case in Tysiąc, the number of legal abortions on grounds of risk to health or life dropped from around 80 in 2000 to between 22 and 33 abortions annually in recent years.
For survivors of sexual assault, like the applicant in P. and S., legal abortion care remains inaccessible in practice as demonstrated by official statistics. Since 2008, between 0 and 3 legal abortions on indication of sexual assault were performed each year in Poland. In 2010, 2011, and 2017, no legal abortions were performed in Poland for women who were pregnant as a result of sexual assault.
Most legal abortions in Poland were performed on indication of risk of a severe or fatal fetal impairment and have totalled around 1,000 abortions in recent years. However, this number can be considered low when compared to the rate in other countries, e.g. the rate is 2.7 times higher in Norway.
The Polish State continues to take the view that the existing legal frameworks are adequate for discharging its obligation to implement these judgments. However, this view disregards the fact that common to the three cases were shortcomings in existing legal frameworks and mechanisms as well as arbitrary behaviour by health care professionals who failed to apply existing legal provisions entitling women to abortion services or prenatal genetic testing in good faith, disregarded clear legal obligations or provided the applicants with misleading and inaccurate information about how to obtain legal reproductive health services.
As outlined in the communication of 29 January 2021, the Constitutional Tribunal’s announcement, resulting in a de facto ban on abortion care, must be seen in the context of the erosion of the rule of law in Poland. The independence and legitimacy of the Constitutional Tribunal has been severely undermined by reforms to the judiciary adopted since 2015. The Tribunal can no longer be considered an “independent and impartial court”. The European Commission has noted that: “The constitutionality of Polish laws can no longer be effectively guaranteed. The judgments rendered by the Tribunal under these circumstances can no longer be considered as providing an effective constitutional review.”
The Parliamentary Assembly of the Council of Europe, in its resolution adopted in January 2021, reiterated that “the ‘constitutional crisis’ has not been resolved and the Constitutional Tribunal seems to be firmly under the control of the ruling authorities, preventing it from being an impartial and independent arbiter of constitutionality and the rule of law.” As such, the October 2020 announcement of the Constitutional Tribunal [effectively banning abortion] cannot be considered to constitute an effective or legitimate constitutional review as required by rule of law principles.
On 11 March 2021, the Committee of Ministers of the Council of Europe issued a resolution calling on Poland to adopt, without further delay, long overdue clear and effective procedures for women’s access to lawful abortion care and information. The resolution expresses serious concerns about Poland’s long-standing failure to comply with judgments by the European Court of Human Rights in the three cases. In each of the judgments, the Court had found a number of human rights violations, including multiple obstacles to a legal abortion and deplorable treatment that applicants faced in seeking access to lawful abortion care in Poland. The judgments became final in 2007, 2011, and 2013, respectively. Yet Poland has repeatedly failed to take effective measures to meet those judgments to date.
The resolution urges Poland to ensure that no additional unnecessary requirements are imposed on women by hospitals before they can access lawful abortion care, and to enact a referral obligation for hospitals when healthcare providers refuse to provide medical care under the conscience clause. Moreover, Polish authorities should ensure effective monitoring and enforcement of hospitals’ contractual obligations to provide lawful abortions or prenatal examinations.
In light of the absence of any meaningful action on the part of State authorities to implement the Court’s judgments and give effect to the decisions of the Committee of Ministers, however, on 29 January 2021, CRR and the Federation respectfully urged the Committee of Ministers “to maintain its enhanced scrutiny of all three cases and urge the State authorities to adopt the measures required by the judgments to address prevailing legal barriers and enforcement deficits and enable women and adolescent girls to exercise their rights under Polish law to obtain reproductive health services. We respectfully urge the Committee of Ministers to conduct the next examination of all three cases in six months’ time.”