Litigation Briefing Series

The Litigation Briefing Series provides summaries and background information on high-impact cases that seek to strengthen legal protections for women’s reproductive rights in courts and human rights bodies around the world.

RR v. Poland, P & S v. Poland, and Z v. Poland

Human Rights Violations Caused By Exceedingly Restrictive Abortion Law

The three cases against Poland before the European Court of Human Rights (ECtHR or Court) discussed in this toolkit, R.R. v. Poland decided by the Court in 2011 and P & S v. Poland and Z v. Poland still pending, together with Tysiąc v. Poland decided by the Court in 2007, highlight the dangers and human rights violations to which Poland’s exceedingly restrictive and unclear abortion law framework exposes women. The country’s failure to implement the legal provisions that do allow women to terminate their pregnancy in limited circumstances exacerbates the situation.

The case R.R. v. Poland centers on a woman who was repeatedly refused diagnostic care while pregnant after a routine sonogram detected a cyst on the fetus’s neck. Genetic tests were repeatedly stalled, preventing her from obtaining timely information on the health of the fetus and hindering her from seeking a legal abortion.

In April 2008, P, then 14 years old, was raped by a classmate. P and her mother, S, reported the rape to the police the next day. P was referred to a health clinic for an examination. Despite her youth and the fact that she was raped, she was not offered emergency contraception, which could have prevented pregnancy. P was legally entitled to an abortion under Polish law, but when she sought one, with the support of her mother, she was denied timely and professional medical attention, continuously harassed by clergy and health care personnel, and temporarily removed from her mother’s custody.

In Z v. Poland, healthcare providers denied diagnostic care and necessary treatment to a pregnant woman suffering from ulcerative colitis, in part because they were afraid properly treating her might harm the fetus. Numerous hospitals and doctors refused to provide medical care, resulting in a miscarriage and ultimately the woman’s unnecessary death.

With the three groundbreaking cases discussed in this toolkit, and as shown by the RR decision, the ECtHR has the opportunity to hold the country to account for its continuing violations of women’s human rights. The significance of these cases reaches beyond Poland; they will set an example in the region, emphasizing that restrictive abortion laws and lack of implementation to the detriment of women’s rights are incompatible with international law.

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Why These Cases Are Important

The three cases against Poland before the European Court of Human Rights (ECtHR or Court) discussed in this toolkit,R.R. v. Poland^[1] decided by the Court in 2011 and P & S v. Poland^[2] and Z v. Poland^[3] still pending, together with Tysiąc v. Poland^[4] decided by the Court in 2007, highlight the dangers and human rights violations to which Poland’s exceedingly restrictive and unclear abortion law framework exposes women. The country’s failure to implement the legal provisions that do allow women to terminate their pregnancy in limited circumstances exacerbates the situation.

Although Poland has one of the most restrictive abortion regimes in Europe, its law does allow termination of pregnancy in limited circumstances. However, in practice, women are often unable to obtain the abortions to which they are legally entitled. The legal framework surrounding abortion is so repressive that it functions as a shield to doctors who do not want to perform abortions based on their conscience, and stifles the willingness of others to provide any care that might possibly have an effect on the fetus for fear of repercussions.^[5]

International bodies have frequently impressed upon Poland that this is contrary to human rights law. As far back as 1999, the Human Rights Committee noted “with concern... [Poland’s] strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health of women.”^[6] A decade later, in 2009, the Committee on Economic, Social and Cultural Rights urged Poland to ensure women do not have to “resort to clandestine, and often unsafe, abortion because of refusal of physicians and clinics to perform the legal operations....”^[7] In 2010, the UN Special Rapporteur on the Right to Health remarked that “access to certain reproductive health services, such as...legal abortion, is seriously impeded.”^[8]

United Nations bodies are not the only ones that have expressed concern for the situation. In 2007, the Council of Europe Commissioner for Human Rights noted “that access to legal abortion...in Poland is frequently hindered” and urged the “government to ensure that women falling within the categories foreseen by the law are allowed, in practice, to terminate their pregnancy without additional hindrance or reproach.”^[9] That same year, in Tysiąc v. Poland, the ECtHR held that Poland had to instate procedures to ensure that women have effective access to legal abortion.^[10] Poland has yet to implement the Court’s decision.^[11] In 2011, in RR v. Poland the Court for the first time found that Poland’s treatment of women in the abortion context can amount to inhuman and degrading treatment.^[12]

Poland’s abortion law framework, which fails to guarantee access to legal abortion, perpetuates gender discrimination because it prevents women from exercising their human rights to life and health. Ensuring that reproductive healthcare services, including abortion, are available to women is necessary to protect their health and lives, and to protect their rights to equality, autonomy and dignity.

Despite the criticism, Poland denies problems exist and has called women’s suffering into question for over a decade. With the three groundbreaking cases discussed in this toolkit, and as shown by the RR decision, the ECtHR has the opportunity to hold the country to account for its continuing violations of women’s human rights.^[13] The significance of these cases reaches beyond Poland; they will set an example in the region, emphasizing that restrictive abortion laws and lack of implementation to the detriment of women’s rights are incompatible with international law.

^{[1]
RR v. Poland, No. 27617/04 Eur. Ct. H.R. (2011).

[2]
P and S v. Poland, App. No. 57375/08 Eur. Ct. H.R. (2008).

[3]
Z v. Poland, App. No. 46123/08 Eur. Ct. H.R. (2008).

[4]
Tysiąc v. Poland, No. 5410/03 Eur. Ct. H.R. (2007).

[5]
Federation for Women and Family Planning, Reproductive Rights in Poland: The Effects of the Anti-Abortion Law, pp. 12, 17-8, 21 (Wanda Nowicka ed.,
2008), available at http://www.federa.org.pl/publikacje/report%20Federa_eng_NET.PDF.

[6]
Human Rights Committee, Concluding Observations: Poland, para. 10, U.N. Doc. CCPR/C/79/Add.110 (1999).

[7]
Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, para. 28, UN Doc. E/C.12/POL/CO/5 (2009).

[8]

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

, Report on Mission to Poland, para. 24, U.N. Doc. A/HRC/14/20/Add.3 (2010).

[9]
Council of Europe, Commissioner for Human Rights,

Memorandum to the Polish Government: Assessment of the Progress Made in Implementing the 2002 of the Council of Europe Commissioner for Human
Rights

, para. 98, CommDH (2007) 13, June 20, 2007.

[10]
Tysiąc v. Poland, supra note 4, para. 116.

[11]
RR v. Poland, supra note 1.

[12]
Id.

[13]
Id.}

Context

History of Poland’s Abortion Law

Poland has one of the most restrictive abortion laws in Europe, comparable only to the laws of Ireland and Malta.^[1] Abortion is regulated by the 1993 Family Planning Act and is allowed in three circumstances: 1) when the life or health of the woman is in danger, abortion is permitted at any stage of the pregnancy; 2) when there is a high probability of a severe and irreversible fetal impairment, abortion is permitted until viability; and 3) when the pregnancy is the result of a crime, abortion is permitted during the first 12 weeks of pregnancy.^[2] Prior to the adoption of the 1993 law, abortion on request had been available in Poland since 1956. Yet, the Catholic Church hierarchy, which strongly influences Polish society and politicians, fiercely opposes abortion and pushed for stricter legislation. In 1996, the law was liberalized by permitting abortion for social reasons. However, the Constitutional Court ruled the new legislation unconstitutional and in 1997 the restrictive 1993 Family Planning Act was reinstated.^[3]

Factors that Make the Abortion Law More Restrictive in Practice than on Paper

While Poland’s abortion law is already restrictive on paper, the situation in practice is even worse. Many women are unable to obtain the abortions they are legally entitled to undergo. Official statistics report only about 200 legal abortions per year on a population including ten million women of reproductive age. The Polish Federation for Women and Family Planning, however, estimates that between 80,000 and 190,000 abortions are performed annually in the ‘abortion underground,’ where some doctors terminate pregnancies illegally for high fees.^[4] Factors contributing to creating this oppressive regulatory framework that violates women’s rights, endangers their health and lives, and forces them into illegality are:

Social Factors: The Catholic hierarchy plays an important role in Poland. They impose their anti-choice views on the public^[5] and perpetuate “deep-rooted prejudice[s]” against women.^[6] Motherhood is seen as women’s primary role. Women are expected to act in the interest of their pregnancy, even if that could negatively affect their health.

Criminal Code: A doctor, including anyone else assisting a woman with an abortion, faces up to three years imprisonment. The woman herself is not subject to punishment.^[7] The European Court of Human Rights has recognized that Poland’s harsh penalties have a “chilling effect”^[8] on doctors. Fear of repercussions makes some doctors unwilling to perform legal abortions, or even certify a woman needs an abortion unless it is 100 percent certain she will not survive birth.^[9] Some doctors believe they should prioritize fetal life.

Fetal Personhood: The chilling effect of the Criminal Code is exacerbated by the Family Planning Act. Contrary to international consensus, the Act gives a fetus the “right to life” without making clear that the woman’s life and health take priority over the fetus. ^[10]

Unregulated Practice of Conscientious Objection: The Profession of a Physician Act allows doctors to object to carrying out an abortion based on their conscience; they then have to refer the woman to another doctor who will perform the service.^[11] Enabled by the complete lack of oversight of conscientious objection, doctors often refuse to make referrals. There is strong pressure on doctors to object from the Catholic hierarchy and from hospitals. Doctors’ objection is therefore not always genuine, and they may offer illegal abortions to women in private at a high price. The state’s failure to regulate conscientious objection makes it extremely difficult for women to access legal abortion.

[1] Center for Reproductive Rights, The World’s Abortion Laws 2007 Map (Jul. 2007), available at http://reproductiverights.org/sites/crr.civicactions.net/files/documents/Abortion%20Map_FA.pdf; Center for Reproductive Rights, Factsheet: The World’s Abortion Laws, May 2008, available at http://reproductiverights.org/sites/crr.civicactions.net/files/pub_fac_abortionlaws2008.pdf.

[2] Poland, Law of Jan. 7, 1993 on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination amended as of Dec. 23, 1997, art. 4a.1 (1-3) [hereinafter Law of Jan. 7, 1993].

[3] Anna Tiktow, Poland, in From Abortion to Contraception: A Resource to Public Policies and Reproductive Behavior in Central and Eastern Europe from 1917 to Present 165, 166 (Henry P. David ed., 1999).

[4] Federation for Women and Family Planning (FWFP), Reproductive Rights in Poland: The Effects of the Anti-Abortion Law, p. 27 (Wanda Nowicka ed., 2008), available at http://www.federa.org.pl/publikacje/report%20Federa_eng_NET.PDF [hereinafter FWFP, The Effects of the Anti-Abortion Law].

[5] FWFP, Shadow Report on the implementation of the Convention on the Elimination of all Forms of Discrimination Against Women Submitted to the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) 20 (2006), available at http://www.federa.org.pl/?page=article&catid=845&lang=2.

[6] Committee on the Elimination of Discrimination against Women, Concluding Observation: Poland, para. 25, U.N. Doc. CEDAW/C/POL/CO/6 (2007).

[7] Criminal Code, arts. 152-154 (Pol.).

[8] Tysiąc v. Poland, No. 5410/03 Eur. Ct. H.R., para. 116 (2007); RR v. Poland, No. 27617/04 Eur. Ct. H.R. (2011).

[9] FWFP, The Effects of the Anti-Abortion Law, supra note 4, at 21.

[10] Law of Jan. 7, 1993, supra note 2, art. 1.

[11] The Profession of a Physician Act of Dec. 5, 1996, art. 39 (Pol.).

RR v. Poland: What Happened

RR v. Poland¹

During the 18^th week of RR’s pregnancy, an ultrasound performed by her gynecologist detected a cyst on the fetus’s neck. To determine whether this was indicative of a severe fetal malformation, further tests were needed. If done in a timely manner, these tests would have enabled RR to make an informed decision on whether to terminate her pregnancy. However, instead of being issued a referral for genetic screening, RR’s was told to see Dr. KSz. who lived 300 kilometers away. This was the beginning of an 8 week period during which RR saw 16 doctors, underwent 5 sonograms, and was hospitalized twice. Although she was legally entitled to prenatal genetic testing and doctors confirmed her need for it, she was consistently refused the testing and the necessary referral.

When RR was finally able to see Dr. KSz., he conducted an ultrasound and verified the diagnosis. A genetics specialist reviewed these results and concluded that the fetus could have Turner or Edward Syndrome. Without prenatal genetic testing it would be impossible to precisely diagnose the disease. However, Dr. KSz. informed RR that he could neither perform the tests himself nor provide her with a referral as she would have to obtain these services from a doctor practicing within her region in order to get insurance coverage.

RR sought a referral from her gynecologist who refused to issue one on the basis of his belief that Turner syndrome was not serious enough to qualify her for an abortion. During the following weeks, RR visited several more doctors, underwent additional ultrasounds and was hospitalized for non-conclusive diagnostic testing on multiple occasions. Yet, recognizing her need for genetic screening, the physicians that treated RR all refused a referral.

Unable to find a doctor willing to provide her with access to the tests she was legally entitled to receive, and approaching the cut off for legal abortion, RR returned to Dr. KSz. who advised her that if she could not get the necessary referral, she should go to a hospital and state that she was in need of emergency care. When further attempts to obtain a referral failed, RR followed Dr. KSz’s advice. At last, in her 23^rd week of pregnancy, she was able to undergo genetic testing. Although by law the testing fell under RR’s public health insurance plan, she had to cover the costs herself.

Obtaining results would take another two weeks, at which time RR would be 25 weeks pregnant. Increasingly concerned that the fetus would suffer from severe genetic abnormalities, RR submitted a written request for an abortion at a local hospital. Having received no response, she submitted another request 10 days later and was told that it was too late, as the fetus was now viable. On July 11, 2002 RR gave birth to a baby girl suffering from Turner Syndrome.

In November of 2003, RR’s gynecologist disclosed information regarding her health and private life in a press interview. He also made negative and hurtful comments about her conduct and personality.

^{1. RR v. Poland, App. No. 27617/04, Eur. Ct. H.R. (2004).}

RR v. Poland: Allegations

Two weeks after giving birth, RR sought to file a criminal case against the doctors who had treated her. The District Prosecutor discontinued the investigation, finding that no crimes had been committed. Despite appeals from RR, the court upheld the prosecutor’s decision, rejecting her claim that the doctors were acting as public agents who were obligated to protect her rights. RR then filed a civil case against the doctors and hospitals. The court awarded RR relief against her gynecologist, finding that he violated her rights by disclosing confidential information about her pregnancy to the media. Her remaining claims were dismissed. Although RR won an appeal filed in the Supreme Court, her victory was limited and the remedy inadequate, barring her from further appealing the decision.

Unable to obtain sufficient redress in the Polish legal system, RR, with the support of Polish counsel from the Federation for Women and Family Planning and the University of Warsaw Law Clinic and in cooperation with the Center for Reproductive Rights, filed a complaint before the European Court of Human Rights in 2004. RR argued that Poland violated the following rights under the Convention:

Right to be Free from Torture and Cruel, Inhuman or Degrading Treatment (CIDT): Article 3 of the European Convention on Human Rights (ECHR) states that no one shall be subjected to torture or CIDT. RR alleged that she was intentionally denied necessary medical treatment by her doctors causing her great mental and physical suffering in violation of Article 3. She also argued Poland violated her Article 3 rights by (i) failing to enact adequate legislation and regulations to ensure doctors provide timely prenatal examination and abortion as legally permitted, and (ii) by failing to undertake a thorough and fair investigation of the failure to provide adequate and timely medical care to RR.

Right to Respect for Private Life: Article 8(1) of the ECHR guarantees the right to respect for private life. RR alleged that her Article 8 rights were violated by the doctors who failed to provide her with full information about her health status and that of her fetus, effectively forcing RR to continue her pregnancy. She also alleged that her Article 8 rights were violated by state agents who denied her timely medical care, and who failed to provide adequate legislation.

Right to an Effective Remedy: Under Article 13 of the ECHR, everyone whose rights under the Convention are violated “shall have an effective remedy before a national authority...” Where Article 3 is involved, an “effective remedy” entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the punishment of those responsible.^[1] RR argued that the state failed to carry out such an investigation with regard to the inhuman and degrading treatment she received from doctors and their lack of care that forced her to carry her pregnancy to term. This failure constitutes a separate and independent violation of the applicant’s right to an effective remedy.

Right to be Free from Discrimination: Article 14 of the ECHR prohibits discrimination on protected grounds, including race, sex, and religion. RR alleged that she was subject to sex discrimination, evidenced by the substandard treatment she experienced due to her pregnancy. That differential treatment based on pregnancy status is a form of sex discrimination has already been recognized by the European Court of Justice^[2] and various UN Treaty Monitoring Bodies.^[3]

^{[1]

Assenov and Others v. Bulgaria, No. 24760/94 Eur. Ct. H.R., para. 102 (1994).

[2]
See, e.g.,
Dekker v. VJV-Centrum, Eur. Ct. of Justice, judgment of Nov. 8, 1990, paras. 12-13.

[3]
Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-discrimination in economic, social and cultural rights,
paras. 11, 20, U.N. Doc. E/C.12/GC/20 (Jun. 10, 2009); Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, Women and Health, paras. 11, 14, U.N. Doc. A/54/38/Rev.1, chap. I (1999).}

RR v Poland: Judgment

On May 26, 2011, the European Court of Human Rights (the Court) handed down its landmark decision RR v. Poland.^[1] The Court found Poland in violation of Article 3, the right to be free from inhuman and degrading treatment, and Article 8, the right to respect for private life, of the European Convention on Human Rights (ECHR).^[2] This decision represents many “firsts” for the Court. It is the first decision of the Court to find an Article 3 violation in an abortion-related case. It is the first time that any international human rights body has directly addressed the right to access prenatal examinations in connection with abortion. In addition, this is the first time the Court has recognized that states have an obligation under the Convention to regulate the exercise of conscientious objection in order to guarantee patients access to lawful reproductive health care services.

VIOLATION OF THE RIGHT TO BE FREE FROM INHUMAN AND DEGRADING TREATMENT (ARTICLE 3)

In its discussion of Article 3, the Court focused on the humiliation and suffering RR endured during her pregnancy when she was repeatedly denied a genetic prenatal examination. In prior cases the Court has found that abortion-related violations infringe on the right to respect for private life.^[3] This is the first time, however, that it has determined that the denial of services critical for making an informed decision as to whether to seek an abortion or not can also violate the right to be free from inhuman and degrading treatment under Article 3.

Under the Court’s long-standing case law, in order to find a violation under Article 3 the suffering must reach a minimum level of severity. The assessment of this minimum level is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects, and the sex, age and state of health of the victim.^[4] In this case, the Court concluded that the threshold of severity was met. The Court referred to several aspects of RR’s suffering, including:

Denial of available services : The Court recognized that RR suffered both before she received the diagnostic services and after the results of the tests became known. Her suffering, the Court noted, could be said to have been aggravated “by the fact that the diagnostic services which she had requested early on were at all times available and that she was entitled as a matter of domestic law to avail herself of them.”^[5] On no occasion was RR told that it was impossible to carry out the tests for any kind of technical or material reasons.^[6] Doctors thus denied her timely information and health services that should have been considered a normal part of basic health services and that were clearly available, lawful and appropriate in the circumstances of her case. This denial of information and services was a source of great suffering for RR.

Vulnerability : The Court took into account the vulnerable position of RR and that of pregnant women in general, noting that “[l]ike any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation.”^[7] RR had to endure weeks of painful uncertainty concerning the health of the fetus and her own and her family’s future because health professionals failed to properly acknowledge and address her concerns. Doctors repeatedly refused RR information and diagnostic tests until legal abortion was no longer an option, which left her in a situation of great vulnerability.^[8]

Humiliation : The Court explicitly stated that it agreed with the Polish Supreme Court’s view “that the applicant had been humiliated”^[9] and went on to condemn the conduct of the health professionals involved, noting that RR was “shabbily treated by the doctors dealing with her case.”^[10] The Court specifically stated that her access to genetic testing “was marred by procrastination, confusion and lack of proper counselling and information,” and that ultimately she received this service by “means of subterfuge.”^[11]

VIOLATION OF THE RIGHT TO RESPECT FOR PRIVATE LIFE (ARTICLE 8)

The Court also found that the State failed to comply with its positive obligations under Article 8 to secure effective respect for RR’s private life.^[12] It reiterated its finding in Tysiąc v. Poland ^[13] that the state has a positive obligation to adopt a clear legal and procedural framework effectively implementing lawful access to abortion, in order to ensure that the right to lawful abortion is operational.^[14] The Court reiterated that once the State decides to permit abortion, “it must not structure its legal framework in a way which would limit real possibilities to obtain it.”^[15]

In this case, the breach of this positive obligation included the failure to:

Ensure timely access to services : The Court made clear that timely access to diagnostic services was particularly relevant for a decision concerning the continuation of RR’s pregnancy, since Polish law allows for termination of pregnancy up until fetal viability when there is a high risk for fetal impairment. Specifically, the Court acknowledged that “the nature of the issues involved in a woman’s decision to terminate a pregnancy is such that the time factor is of critical importance.”^[16] In this case, the Court noted that six weeks had elapsed from the date when the first concerns arose regarding the fetus’ health until their confirmation by way of genetic tests, at which point abortion was no longer a lawful option. Thus, the State violated its obligation to ensure that procedures were in place to enable RR to make a decision in “good time” regarding her pregnancy and, consequently, to be able to access a legal abortion if she decided so.^[17]

Reform criminal liability for doctors performing abortions : The Court reiterated that the combination of legal restrictions on abortion in Poland and the risk of a doctor incurring criminal liability produce a “chilling effect” on doctors when they are deciding whether the requirements of legal abortion are met in a particular case. Thus, Poland must ensure that “provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this chilling effect.”^[18]

Ensure effective access to relevant and full information on the fetus’ health : The Court noted that the right of a pregnant woman to obtain available information about her health falls within the notion of private life protected under Article 8. This right applies both in general during pregnancy and in the context of abortion. ^[19] At the same time, the Court reiterated that “during pregnancy the foetus’ condition and health constitute an element of the pregnant woman’s health.”^[20] The Court went on to state that, “in the context of pregnancy, the effective access to relevant information on the mother’s and foetus’ health, where legislation allows for abortion in certain situations, is directly relevant for the exercise of personal autonomy.”^[21] Thus, where domestic law allows for abortion for fetal malformation, the State has a positive obligation to set in place “an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women.”^[22] By repeatedly denying RR a genetic prenatal examination, the State failed to ensure that she had access to full and reliable information about the fetus’ health, that was “a necessary prerequisite” ^[23] for the possibility of having a legal abortion. Consequently, the State failed to ensure that she could exercise her personal autonomy, which is protected under the right to respect for private life.

Adequately regulate conscientious objection : For the first time, the Court addressed States’ obligation to adequately regulate the practice of conscientious objection in the reproductive health sphere. Under the ECHR, States are obliged to “organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”^[24] Thus, the possibility for individual doctors to refuse services on grounds of conscience did not absolve the Polish State from its positive obligation to provide RR with the services to which she was legally entitled.

REMEDIES

Individual measures: The Court awarded €45,000 in non-pecuniary damages to RR. She was awarded an additional €15,000 for legal fees.

General measures: The Court held that, in order to comply with its obligations under the Convention, Poland must ensure that pregnant women have access to diagnostic services relevant for establishing the conditions for a lawful abortion, as guaranteed in relevant Polish legislation. Specifically, Poland must:

(1) provide pregnant women the practical means to establish their right of access to a lawful abortion by putting in place effective and accessible procedures to implement the Polish 1993 Family Planning Act;

(2) ensure an adequate legal and procedural framework to guarantee pregnant women access to diagnostic services and relevant, full, and reliable information on their pregnancy;

(3) organize its health system in a way so that conscientious objection of health professionals does not impede access to legal health services; and

(4) formulate provisions regulating the availability of lawful abortion in a way as to alleviate the chilling effect on doctors that current legal restrictions may have.^[25]

IMPACT

The decision in RR v. Poland is a critical victory for ensuring access to safe and timely lawful abortion. With this case, and by referring to the considerable European consensus towards allowing abortion,^[26] the Court reinforces its stance that states have real and tangible obligations to ensure that lawful abortion is also accessible in practice. In particular, the Court sends a strong message to all Council of Europe member states that timely access to full and reliable information and prenatal diagnostic services is critical to ensuring a woman’s rights guaranteed under the Convention and central to her ability to obtain a lawful abortion. The decision also states that abuse and humiliation of women within the reproductive health sector can amount to inhuman and degrading treatment, in violation of the ECHR. The case further highlights the need to adequately regulate the exercise of conscientious objection in the reproductive health field to avoid its abuse—an issue which is of highest relevance in Poland and globally.

^{[1]
RR v. Poland, No. 27617/04 Eur. Ct. H.R. (2011). The judgment became final on November 28, 2011.

[2]
The petition also claimed a violation of Article 13 (right to effective remedy) and Article 14 (right to be free from discrimination) of the ECHR.
With respect to Article 13 the Court concluded that the issue overlapped with Article 8 claim and therefore held that no separate issue arose under
Article 13. With respect to Article 14 claim the Court did not raise the issue at any point.

[3]
Tysiąc v. Poland, No. 5410/03 Eur. Ct. H.R. (2007); A, B and C v. Ireland , App. No. 25579/05 Eur. Ct. H.R. (2010).

[4]
See
, inter alia, Price v. United Kingdom, App. No. 33394/96 Eur. Ct. H.R. para. 24 (2001); Jalloh v. Germany, App. No. 54810/00, Eur. Ct.
H.R. para. 67 (2006).

[5]
RR v. Poland, supra note 1, para. 160. The Court’s finding that the willful denial of medical care aggravated the inhuman and degrading
treatment the applicant suffered reinforces the standard developed in K.L. v. Peru, where such a denial is described at para. 6.3 as
having the effect of “add(ing) further pain and distress.” K.L. v. Peru, Human Rights Committee, Communication No. 1153/2003, para. 6.3, U.N. Doc.
CCPR/C/85/D/1153/2003 (2005).

[6]
RR v. Poland, supra note 1, para. 155.

[7]
Id.
para. 159.

[8]
Id
.

[9]
Id.
paras. 102, 160.

[10]
Id.
paras. 54, 160.

[11]
Id.
para. 153.

[12]
The Court has interpreted Article 8 as including a negative as well as a positive obligation. Under the negative obligation the state is required
to refrain from an arbitrary interference into the person’s private life, whereas the positive obligation requires the state to adopt measures that
ensure effective respect for the person’s private life.

[13]
Tysiąc v. Poland, supra note 3.

[14]
RR v. Poland, supra note 1, para. 200.

[15]
Id
.

[16]
Id.
para. 203.

[17]
Id.
paras. 203-204.

[18]
Id.
para. 193.

[19]
Id.
para. 197.

[20]
Id
.

[21]
Id
.

[22]
Id.
para. 200.

[23]
Id.
para. 199.

[24]
Id.
para. 206.

[25]
Id.
paras. 193, 200, 206, 210, 213.

[26]
Id.
para. 186.}

P & S v. Poland: What Happened

P & S v. Poland¹

In April 2008, P, then 14 years old, was raped by a classmate. P and her mother, S, reported the rape to the police the next day. P was referred to a health clinic for an examination. Despite her youth and the fact that she was raped, she was not offered emergency contraception, which could have prevented pregnancy. Several weeks later, when P found out she was pregnant, she decided to terminate the pregnancy after careful consideration and with the support of her mother. Although P was legally entitled to an abortion under Polish law because her pregnancy had resulted from rape, she was continuously harassed and denied timely and professional medical attention.

P, after interrogation by the Family District Court, obtained a certificate stating that her pregnancy was the result of a crime, which she needed in order to undergo an abortion. However, neither the prosecutor nor police provided P with information on how to proceed. Her mother then visited a number of hospitals in Lublin, their hometown, to seek assistance. She was told that a medical referral for an abortion was necessary and that only a few specialists could provide such a referral, however, these specialists all refused to do so.

At one hospital, the Chief of Obstetrics and Gynecology told P and her mother that P needed a priest, not an abortion, and facilitated an unrequested meeting between P and a Catholic priest. P discovered that confidential information regarding her pregnancy had been disclosed to the priest without her consent. Desperate, P and her mother traveled to Warsaw, where representatives of the Federation for Women and Family Planning supported her in finding a doctor who could provide the referral.

Although P did receive a referral, the doctor who was to perform the abortion expressed reservations when the priest and others contacted the hospital in Warsaw where he worked, falsely claiming that P was being coerced by her mother and did not want an abortion. Hospital staff proceeded to manipulate the relationship between P and S, in order to force P not to have the abortion.

After leaving the hospital, P and her mother were harassed by anti-abortion activists and sought police protection. The Warsaw police responded by interrogating them for over six hours. They further violated Family Court orders by inappropriately removing P from her mother’s custody; she was placed in a juvenile center and remained under the custody of the state for a week. At the juvenile center, P’s mobile phone was taken away, she was locked in a room, and was not provided with timely medical treatment when she complained of severe pains and bleeding. Eight hours after she first complained, she was finally taken to the hospital for treatment, where she again faced harassment by journalists and anti-abortion activists.

Weeks after the rape occurred, and only a few days before the 12 week cut off for abortions in cases of rape, the Ministry of Health intervened and P was able to get an abortion in a hospital 500 kilometers away from her home. Although the abortion was legal, the hospital refused to register P as a patient and the abortion was conducted in a clandestine manner. P was given anesthesia without warning and was not given information about the procedure or post-abortion care. P was also told to leave the hospital immediately after the procedure.

^{1. P and S v. Poland, App. No. 57375/08 Eur. Ct. H.R. (2008). Communicated to the state on September 20, 2011.}

P & S v. Poland: Allegations

In July 2008, the Family Court filed suit against P for engaging in statutory rape because she had had sexual intercourse with a minor below the age 15, even though she was the one who had been raped. The Family Court also filed suit against her parents for coercing her to undergo an abortion. The Prosecutor ultimately discontinued these lawsuits.

S, as P’s representative, filed a criminal case against the doctors and the priest who had disclosed P’s confidential information. The case was discontinued despite an appeal. A case against various doctors and others for coercing P to continue her pregnancy was discontinued as well. A case arguing that P’s right to liberty was violated when she was taken into custody at the juvenile shelter, and one alleging a violation of S and P’s physical integrity, was also discontinued.

Unable to gain recognition of wrongdoing and receive an effective remedy in the Polish legal system, P and S, with the support of Polish counsel from the Reproductive Rights Legal Network of the Federation for Women and Family Planning and in cooperation with the Center for Reproductive Rights, filed an individual complaint before the European Court of Human Rights in May 2009. P and S argue that Poland violated the following rights under the Convention:

Right to be Free from Torture and Cruel, Inhuman or Degrading Treatment (CIDT): Article 3 of the European Convention on Human Rights (ECHR) guarantees the right to be free from torture and CIDT. P was denied access to emergency contraception and hindered in obtaining a legal abortion. The biased information she received and the disclosure of her confidential medical information subjected her to mental suffering and harassment. P was also unlawfully detained and was provided with no information on the abortion procedure. P alleges these are violations of her right to be free from CIDT.

Right to Respect for Private Life: Article 8(1) of the Convention guarantees the right to respect for private life. The petition alleges that this right was violated by denying P access to legal abortion services and emergency contraception, failing to provide timely medical care, and by the unlawful disclosure of her confidential medical information. P also alleges she was given false and manipulative information, which infringed her right to respect for her private life.

Right to an Effective Remedy: Under Article 13 of the ECHR, everyone whose Convention rights are violated “shall have an effective remedy before a national authority...” P and S allege that the administrative and civil remedies available to them under Polish law do not provide sufficient redress for the violations that occurred. Concerning Article 8, the Court has held that “civil law remed[ies] [are] solely of a retroactive and compensatory character” and are not an effective remedy.^[1] While P did ultimately have an abortion, this was due to the discretion of the Ministry of Health.

Right to be Free from Discrimination: Article 14 of the Convention outlaws discrimination based on sex, among other things. P alleges a violation of Article 14 because she was repeatedly denied adequate medical treatment due to her pregnancy. That differential treatment based on pregnancy status is a form of sex discrimination has already been recognized by the European Court of Justice^[2] and various U.N. Treaty Monitoring Bodies.^[3]

^{[1]
Tysiąc v. Poland, No. 5410/03 Eur. Ct. H.R., para. 125 (2007).

[2]
See, e.g.,
Dekker v. VJV-Centrum, Eur. Ct. of Justice, judgment of Nov. 8, 1990, paras. 12-13.

[3]
Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-discrimination in economic, social and cultural rights,
paras. 11, 20, U.N. Doc. E/C.12/GC/20 (Jun. 10, 2009); Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, Women and Health, paras. 11, 14, U.N. Doc. A/54/38/Rev.1, chap. I (1999).}

Z v. Poland: What Happened

Z v. Poland¹

Z’s daughter, a Polish woman in her twenties, was repeatedly denied diagnostic care and necessary treatment for her ulcerative colitis (UC) while she was pregnant. UC is a disease that causes inflammation and sores in the rectum and colon; it is not a disease caused by pregnancy. Ignoring human rights and medical standards, doctors refused to give Z’s daughter the care she needed because they were afraid doing so might harm her fetus. Ultimately, after eight hospital admissions over a five month period during which doctors focused on Z’s daughter’s pregnancy and not on her disease, this led to a miscarriage and to her preventable death.

In May of 2004, about five months before she died, Z’s daughter was informed she was four to five weeks pregnant. It was a wanted pregnancy, and Z’s daughter was engaged to be married in July of 2004. Due to her illness and death, the wedding would never take place.

Around the time Z’s daughter became pregnant, she also began experiencing symptoms of UC such as nausea, abdominal pains, vomiting and diarrhea with blood. She first told a doctor about these symptoms a week after her pregnancy was confirmed, and was told they were pregnancy-related. Yet, her symptoms rapidly worsened and became so severe that she was admitted to a hospital from mid. May to early June. During her stay, basic tests were performed and UC was diagnosed. She received minimal treatment with steroids and was sent home.

A few days later, the condition of Z’s daughter again worsened, requiring another hospitalization. Her treating doctors failed to carry out further diagnostic tests, such as a full endoscopy, to determine the extent and location of her UC, and to decide on the proper course of treatment. Instead, she was transferred from hospital to hospital to be sent home again several weeks later, without steps having been taken to properly diagnose and provide care for her disease.

Z’s daughter’s condition only deteriorated and four stays, totaling six weeks in four different hospitals followed in the months of July and August. While she developed abscesses that had to be surgically removed, more extensive testing and aggressive treatment were denied. One doctor told Z that her daughter was “too interested in her own ass instead of being interested in something else,” the ‘something else’ being her pregnancy. Although abortion is not a consideration in giving proper treatment in this situation, other doctors told Z’s daughter they could not treat her because their “conscience did not allow” them. None of Z’s daughter’s doctors registered their conscientious objection. They also failed to refer her to a doctor that would give her the treatment she needed. The refusal to be treated effectively while she was in great pain and her life was at risk was humiliating and debasing.

In early September 2004, Z’s daughter was again hospitalized, this time with sepsis (blood poisoning) and symptoms of organ dysfunction. Doctors also diagnosed that her fetus was dead. Despite many surgeries removing pus, the sepsis became more severe and her kidneys failed. After months of extreme pain and humiliation received at the hands of her doctors, Z’s daughter died in late September of a condition that could have been controlled with proper and timely treatment.

^{1. Z v. Poland, App. No. 46123/08, Eur. Ct. H.R. (2008).}

Z v. Poland: Allegations

Two months after her daughter died, Z filed a criminal complaint against the hospitals and doctors responsible for her lack of treatment. After a protracted, ineffective investigation by the public prosecutor that focused not on determining liability for her daughter’s death, but on whether an abortion had been necessary to treat her, the case was dismissed in September of 2008, despite an appeal to the court. To date, Z has also not received effective redress in a civil suit she filed.

Unable to gain recognition of wrongdoing in Poland, Z, with the support of Polish counsel from the University of Warsaw Law Clinic and the Reproductive Rights Legal Network of the Federation for Women and Family Planning, and in cooperation with the Center for Reproductive Rights, filed a complaint before the European Court of Human Rights in September 2008. Z argues that Poland violated the following rights under the Convention:

Right to Life: Under Article 2 of the European Convention on Human Rights (ECHR) Poland has the duty to protect life; to refrain from intentionally taking life; and to have an effective judicial system in place to address Article 2 violations. Z alleges Poland violated these obligations by not clarifying that the rights of the pregnant woman trump fetal protection and by conducting an ineffective investigation into Z’s daughter’s death. Z also alleges Poland is accountable because the doctors for whom it carries responsibility intentionally withheld information and care from her daughter leading to her death.

Right to be Free from Torture and Cruel, Inhuman or Degrading Treatment (CIDT): Article 3 of the ECHR states that no one shall be subjected to torture or CIDT. The complaint argues that Poland subjected her daughter to CIDT through the humiliating treatment her daughter received from her doctors and the months of pain and suffering she had to endure because of their lack of care.

Right to Respect for Private Life: Under Article 8(1) of the ECHR everyone has the right to respect for their private life. Z argues Poland violated this right because it is responsible for the failing of Z’s daughter’s doctors to provide her with adequate information about her health and to regulate the practice of conscientious objection.

Right to an Effective Remedy: Under Article 13 of the ECHR, everyone whose Convention rights are violated “shall have an effective remedy before a national authority....” The complaint argues that Poland violated this right because it failed to carry out a thorough investigation into Z’s daughter death and medical treatment as they were required to do under Articles 2 and 3. Although Z may have access to administrative or civil remedies, for the violations at issue “effective deterrence is indispensable…and it can be achieved only by criminal-law....”^[1]

Right to be Free from Discrimination: Article 14 of the ECHR guarantees that Convention rights shall be secured without any discrimination, including on the ground of sex. The complaint argues that Z’s daughter’s doctors did not provide her with the standard of care that would have been given to a non-pregnant woman or man with UC, amounting to differential treatment based on pregnancy status. That this is a form of sex discrimination has already been recognized by the European Court of Justice^[2] and various U.N. Treaty Monitoring Bodies.^[3]

^{[1]
X and Y v. the Netherlands, App. No. 8978/80 Eur. Ct. H.R., para. 24 (1985).

[2]
See, e.g.,
Dekker v. VJV-Centrum, Eur. Ct. of Justice, judgment of Nov. 8, 1990, paras. 12-13.

[3]
Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-discrimination in economic, social and cultural rights,
paras. 11, 20, U.N. Doc. E/C.12/GC/20 (Jun. 10, 2009); Committee on the Elimination of Discrimination against Women, General Recommendation No. 24, Women and Health, paras. 11, 14, U.N. Doc. A/54/38/Rev.1, chap. I (1999).}

Select Polish Laws and Court Decisions Related to Abortion

The main law regulating abortion in Poland is the 1993 Family Planning Act. However, access to abortion is also influenced by the conscience clause, the Profession of Physician Act, the European Court of Human Rights (ECtHR), and judgments of the Polish courts. This section will highlight the major laws and decisions affecting women’s right to abortion in Poland.

Abortion Regulation: The 1993 Family Planning Act

Poland has one of the most restrictive abortion laws in Europe. Abortion is regulated by the 1993 Family Planning Act and is only allowed in three circumstances: 1) when the life or health of a woman is in danger, abortion is permitted at any stage of the pregnancy; 2) when there is a high probability of a severe and irreversible fetal impairment, abortion is permitted until viability; and 3) when the pregnancy is the result of a crime, abortion is permitted during the first 12 weeks. When the pregnancy results from a criminal act, the woman needs a certificate from the public prosecutor to be able to undergo an abortion.^[1] This means that women who are victims of sexual violence have to go to the police to report and relive what happened to them, which can be extremely traumatizing. Moreover, the proceeding to obtain the certificate can take so long that the 12 week term limit is often exceeded.^[2]

Penalizing Abortion: The Criminal Code

Although under Poland’s Criminal Code a woman is not subject to punishment for aborting her pregnancy outside the scope of the law, a doctor or anyone else who assists a woman with the unlawful termination of her pregnancy, including providing transport, advice or information faces up to three years imprisonment.^[3] The ECtHR has recognized that these harsh penalties have a “chilling effect” on medical professionals.^[4] Fear of repercussions makes some doctors unwilling to perform legal abortions, or even certify a woman needs an abortion unless it is 100 percent certain she will not survive birth.^[5]

Conscience Clause: The Profession of a Physician Act

Another law that has a great impact on access to abortion in Poland is the Profession of a Physician Act, which allows doctors to object to performing abortions based on their conscience. Facing pressure from the Catholic Church hierarchy and hospitals to not be associated with abortion services, and fearing criminal sanctions for terminating pregnancies, doctors frequently invoke the conscience clause. The Act requires practitioners who do so to refer their patient to another doctor or facility where they can undergo an abortion.^[6] Yet, enabled by the lack of oversight of the practice of conscientious objection, doctors often refuse to make referrals. In addition, it is not uncommon for hospitals as a whole to invoke the conscience clause, even though such a provision is only meant to apply to medical professionals and not to institutions.^[7] This makes it extremely difficult for women to access abortion, even when legal.^[8]

Failing to Implement Tysiąc: The Patient Rights Ombudsman Law

In its 2007 Tysiąc v. Poland decision the ECtHR recognized that access to abortion in Poland is obstructed by the country’s failure to have a framework in place that guarantees women’s right to terminate their pregnancy in the limited circumstances permitted by law. The Court held that in order to comply with the European Convention on Human Rights (ECHR), Poland should establish an appeals mechanism to review cases when there is a disagreement between a woman and her doctor about whether the legal conditions for abortion have been met. It also made clear that such a mechanism must consist of (1) an independent body (2) that takes the views of the woman into consideration and (3) issues decisions in writing (4) within a reasonable period of time.^[9] In an attempt to appease the Court, Poland adopted the Law on the Protection of Patient Rights and the Patient Rights Ombudsman, which entered into force in 2009. Under the new law, any patient who disagrees with her doctor’s decision on provision of healthcare, including on abortion, may lodge an appeal with a Commission of Physicians, which then has to issue an opinion within 30 days. Commenting on the problems with the new law, the U.N. Special Rapporteur on the Highest Attainable Standard of Health noted that “a panel composed exclusively of medical professionals has an inbuilt structural bias, affecting its impartiality.”^[10] Moreover, because of the strict time limits for abortion in cases of fetal impairment and when the pregnancy resulted from a crime, a 30 day period to issue an opinion is excessive and undermines women’s legal right to access abortion.^[11] It is also unclear whether a woman has the opportunity to be heard in person and whether the Commission has to issue written grounds for its opinions. For these reasons, the Committee of Ministers overseeing the implementation of judgments of the ECtHR is, to date, not satisfied the new law complies with the Court’s decision.^[12]

Polish Case Law: Decisions Protecting Women’s Right to Abortion

While Poland thus remains in violation of its obligation under the ECHR, and women’s access to abortion is severely restricted, national courts have in limited circumstances recognized women’s right to lawful abortion and have issued some positive decisions. In 2005, the Polish Supreme Court awarded damages in the case of B. Wojnarowska, who was refused prenatal testing by her doctors when she became pregnant with her second child, despite her firstborn child having a genetic disorder. The Supreme Court agreed with the lower court’s opinion, which, referencing Article 47 of the Polish Constitution, held that Wojnarowska’s “right...to decide about her personal life as well as the right to family planning, not excluding the right to terminate pregnancy” were violated by denying her tests on the basis of which she could have decided on the legal possibility of abortion. Two years earlier the Supreme Court decided the case of M.A., who was denied an abortion after she was raped because the age of her fetus was wrongly calculated as 14 weeks. The Court held that the constitutionally protected freedom to decide over one’s private life was violated by forcing a woman to carry a pregnancy to term that resulted from rape.^[13]

^{[1]
Poland, Law of Jan. 7, 1993 on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination amended as of Dec.
23, 1997, art. 4a.1 (1-3).

[2]
Federation for Women and Family Planning (FWFP), Reproductive Rights in Poland: The Effects of the Anti-Abortion Law, p. 23 (Wanda Nowicka ed.,
2008), available at http://www.federa.org.pl/publikacje/report%20Federa_eng_NET.PDF [hereinafter FWFP, The Effects of the Anti-Abortion
Law].

[3]
Criminal Code, arts. 18, 152-154 (Pol.).

[4]
Tysiąc v. Poland, No. 5410/03, Eur. Ct. H.R., para. 116 (2007).

[5]
FWFP, The Effects of the Anti-Abortion Law, supra note 2, at 21.

[6]
The Profession of a Physician Act of Dec. 5, 1996, art. 39 (Pol.).

[7]
FWFP, Report to CESCR 8-9 (2009), available at http://www.federa.org.pl/?page=article&catid=879&lang=2; see Council of
Europe, Commissioner for Human Rights,

Memorandum to the Polish Government: Assessment of the Progress Made in Implementing the 2002 of the Council of Europe Commissioner for Human
Rights

, para. 95, CommDH (2007) 13, June 20, 2007; Kontakt-information-Therapie and Hagen v Austria, ECHR, admissibility decision, 11921/86.

[8]
See, e.g.
, Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, para. 28, UN Doc. E/C.12/POL/CO/5 (2009).

[9]
Tysiąc v. Poland, supra note 4, paras. 117-118.

[10]

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

, Report on Mission to Poland, para. 45, U.N. Doc. A/HRC/14/20/Add.3 (2010).

[11]
See e.g.
Human Rights Committee, Concluding Observations: Poland, para. 12 ,CCPR/CPOL/CO/6 (2010).

[12]
Council of Europe, Current State of Execution, http://www.coe.int/t/DGHL/MONITORING/EXECUTION/Reports/Default_EN.asp?dv=1&StateCode=POL (last
visited Dec. 22, 2010).

[13]
FWFP, The Effects of the Anti-Abortion Law, supra note 2, at 46-47.}

Human Rights Framework

Each of these cases against Poland before the European Court of Human Rights (the Court) alleges violations of key human rights principles enshrined in the European Convention on Human Rights (ECHR or Convention). This section will highlight the provisions of the Convention on which the cases are based. Each case alleges violations of the right to life, the right to freedom from torture and inhuman or degrading treatment, the right to privacy and the right to non-discrimination. Additionally, some of the cases also allege violations of the right to liberty, the right to freedom of conscience, freedom of religion and freedom of expression, among others. Although the principles involved are universal and grounded in several international treaties, this section will be limited to the ECHR because the Court only has the authority to decide cases on the basis of that Convention.

European Convention on Human Rights

Article 2 – Ensures that “[n]o one shall be deprived of his life intentionally…” States parties are required to refrain from intentionally taking life and to have an effective judicial system in place to address Article 2 violations.

Article 3 – Protects all persons from being “subjected to torture or to inhuman or degrading treatment or punishment.” Such treatment (i) involves actual bodily injury or intense physical or mental suffering that (ii) humiliates or debases an individual.^[1] The main purpose of Article 3 is the protection of a person’s dignity and physical integrity.^[2] The Court has noted that the state party need not have the intent to subject the victim to cruel or degrading treatment.^[3] Article 3 imposes positive obligations on the state to both prevent ill treatment and to provide redress.^[4]

Article 8 – Guarantees an individual’s “right to respect for his private and family life, his home and his correspondence.” The article further prohibits “interference by a public authority with the exercise of this right except such as is in accordance with the law …” The protections of this article encompasses the right to information about oneself, for example, access to medical files.^[5] The Court has held that Article 8 may impose positive obligations on contracting parties and may require affirmative action to protect and ensure respect for the rights in question.^[6]

Article 13 – Guarantees the right to “an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 – Prohibits discrimination in the enjoyment of the rights guaranteed by the convention on any grounds, including “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The ECtHR has found that different treatment based on sex amounts to a “suspect category” which must be justified by “very weighty reasons.”^[7] Difference of treatment is discriminatory if it has no legitimate objective and reasonable justification. There must be proportionality between the means employed and the aim sought to be realized.^[8]

^{[1]
Pretty v. the United Kingdom, App. No. 2346/02 Eur. Ct. H.R., para. 52 (2002).

[2]
Tyrer v. the United Kingdom, No. 26 Eur. Ct. H.R. (ser. A), para. 33 (1978).

[3]
Melnik v. Ukraine, No. 72286/01 Eur. Ct. H.R., para. 110 (2006).

[4]
M.C. v. Bulgaria, No. 39272/98 Eur. Ct. H.R., para. 150 (2003).

[5]
K.H. and Others v. Slovakia, No. 32881/04 Eur. Ct. H.R., paras. 44-47 (2009).

[6]
Roche v. the United Kingdom [GC], No. 32555/96 Eur. Ct. H.R., para. 157 (2005).

[7]
Schuler-Zgrageen v. Switzerland, No. 263, Eur. Ct. H.R. (ser. A) para. 67 (1993).

[8]
Opuz v. Turkey, App. No. 33401/02 Eur. Ct. H.R., para. 183 (2009).}

Recommendations to Poland by UN and Regional Human Rights Mechanisms

International and regional accountability bodies have increasingly been highlighting the issue of abortion as well as other sexual and reproductive rights issues in Poland. A common theme that emerges from the concerns and recommendations voiced by these bodies is the problems posed by clandestine abortions and the unregulated exercise of conscientious objection.

In 2009, the Committee on Economic, Social and Cultural Rights, which monitors state compliance with the U.N. Convention on Economic Social and Cultural Rights, expressed concern that women in Poland in “alarming numbers” “resort to clandestine, and often unsafe, abortion because of refusal of physicians and clinics to perform the legal operations on the basis of conscientious objection.” It called on the state “to take all effective measures to ensure that women enjoy their right to sexual and reproductive health, including by enforcing the legislation on abortion and implementing a mechanism of timely and systematic referral…”^[1]

In 2007, the Committee on the Elimination of Discrimination against Women, which monitors state compliance with the Convention on the Elimination of All Forms of Discrimination Against Women urged Poland to “take concrete measures to enhance women’s access to health care, in particular to sexual and reproductive health services.” . . . It also urged the country “to ensure...women seeking legal abortion have access to it, and that their access is not limited by...conscientious objection....”^[2]

In 2004, the Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights, voiced its concern about “the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions.”^[3]

In 2009, the U.N. Special Rapporteur on the right to the highest attainable standard of health visited Poland to inquire into status of sexual and reproductive health rights in the country. In the report on his mission the Rapporteur “note[d] with regret that women in Poland face numerous obstacles in accessing abortion...even when they are legally entitled to [it].” He also expressed concern that “non-State actors, such as priests, interfere with access to legal and safe abortions.” The Special Rapporteur further reiterated that medical professionals’ conscientious objection to provide certain health services “should not entail interference with sexual and reproductive health rights, which are fundamental.” He emphasized that Poland must eliminate the legal, social, cultural and religious obstacles to women’s access to abortion when legal.^[4]

In 2007, the Council of Europe Commissioner for Human Rights, in a report on the status of human rights in Poland, remarked that “[t]he very low number of legal abortions is a warning signal to the...authorities that illegal abortions are taking place in high numbers,” and that such abortions “increase the risks for the woman undergoing the intervention and carry with them the stigma of breaching the law.” He noted that “access to legal abortion for women...is frequently hindered,” and urged the “government to ensure that women falling within the categories foreseen by the law are allowed, in practice, to terminate their pregnancy without additional hindrance or reproach.”^[5]

^{[1]
Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, para. 28, U.N. Doc. E/C.12/POL/CO/5 (2009).

[2]
Committee on the Elimination of Discrimination against Women, Concluding Observation: Poland, para. 25, U.N. Doc. CEDAW/C/POL/CO/6 (2007).

[3]
Human Rights Committee, Concluding Observations: Poland, para. 8, U.N. Doc. CCPR/CO/82/POL (2004).

[4]

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

, Report on Mission to Poland, paras. 38, 48, 50, U.N. Doc. A/HRC/14/20/Add.3 (2010).

[5]
Council of Europe, Commissioner for Human Rights,

Memorandum to the Polish Government: Assessment of the Progress Made in Implementing the 2002 of the Council of Europe Commissioner for Human
Rights

, para. 95, CommDH (2007) 13, June 20, 2007.}

Call For Action

Polish Government and Decision-Makers:

Provide adequate redress to complainants.
Undertake the necessary legal and regulatory changes that would enable similarly situated women to avoid these harms and exercise the rights to access legal abortion and other reproductive health services.
Liberalize the current abortion law to ensure women access to abortion on request.
Impartially evaluate the effects of existing abortion legislation on women’s human rights, including their right to life, health and equality and its effectiveness in limiting the number of abortions.
Introduce laws and policies that reduce the need for abortion, including access to the full range of affordable and acceptable contraceptives and mandatory, comprehensive, non-discriminatory evidence-based sexuality education in schools.

International and National Human Rights Mechanisms:

Provide adequate redress to complainants.
Monitor the lack of access to abortion and other reproductive health services in Poland and urge the Polish government to guarantee access to those services women are legally entitled to receive.
Call on Poland to liberalize its current abortion law.
Ensure the effective implementation of the Tysiąc v. Poland judgment, ensuring that the new law on patients’ rights adequately addresses the problems pregnant women face in accessing lawful abortions.
Ensure the effective implementation of the RR v. Poland judgment, ensuring that women have full access to diagnostic services and reliable information on their pregnancies.
Adequately regulate and monitor the use of conscientious objection in the reproductive health service field.

Glimpses of National and International Media Coverage on Cases Against Poland

Z v. Poland
‘She and her fiancé come from Pila. She finished law and he economic studies. They met at work and were planning their wedding. When she got pregnant, they bought a larger apartment. And then the problems started. Her stomach began to hurt. She was diagnosed by doctors with ulcerative colitis, a chronic infection of the intestine of unknown causes. … “Doctors only always talked about the chances of maintaining the pregnancy. But I could not find out about my daughter’s health status.”, says her mother. The pain was unbearable, the girl screamed, begged for a painkiller. Barely getting Paracetamol due to the child's welfare. …A few days later her status deteriorated. She had a high fever and was on the operating table. The child was already dead. An abscess was removed, but the infection has already spread throughout her whole body, she was diagnosed with sepsis. The woman underwent a series of operations and was in intensive care for three weeks. To no avail – she died on 29 September 2004.’

[Tomasz Michałowicz, Concern for the fetus at the expense of the mother’s life (Troska o płód kosztem życia matki), Gazeta Wiadomości, May 2, 2005]

S & T v. Poland
‘This is a case of legal abortion in Poland, as the pregnancy is the result of intercourse with a person under 15 years of age: a criminal offense. The Prosecutor's Office in Lublin issued a certificate for her to undergo an abortion. Thus, the only remaining condition to undergo an abortion was the decision of Agata [T] and her mother [S]. Both Agata and her mother decided that Agata would undergo an abortion. However, during the time Agata was in hospitals in Lublin and Warsaw, no abortion was performed. She was under pressure from a pro-life activist and a priest who tried to convince her to give birth.’

[Małgorzata Szlachetka, Agnieszka Pochrzęst, Agata and her mother want abortion. Hospital refuses (Agata z matką chcą aborcji. Szpital odmawia), Gazeta Wyborcza, June 12, 2008]

Tysiąc v. Poland
‘The European Court of Human Rights ruled that Poland has no effective legal framework for pregnant women to assert their right to abortion on medical grounds. …The court concluded that Polish law "did not contain any effective mechanism capable of determining whether the conditions for obtaining a lawful abortion had been met." The ruling means Poland will have to introduce clearer guidelines on abortion law on medical grounds.’

[Polish woman who was denied abortion wins in EU court, The New York Times, March 20, 2007]