Poland: A Victory of Firsts

For the first time in its history, the European Court of Human Rights specifically found that an abortion-related violation amounted to inhumane and degrading treatment. The Center and its partners filed the case R.R. v. Poland in 2004, and the Court handed down its landmark decision on May 26, 2011. It found Poland in violation of Article 3, the right to freedom from inhumane and degrading treatment, and Article 8(1), the right to private life, in the European Convention on Human Rights (the Convention).

This decision represents many “firsts” for the Court.  It is the first decision 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 was the first time the Court recognized that states have an obligation under the Convention to regulate the exercise of conscientious objection in order to guarantee patients access to lawful health care services.  

The Case

The Center for Reproductive Rights, the Polish Federation for Women in Family Planning, and the University of Warsaw Law Clinic, filed this case in December 2004 on behalf of R.R. who was repeatedly denied a genetic prenatal examination after her doctor discovered fetal irregularities during a sonogram. The exam would have informed R.R.’s decision on whether or not to terminate her pregnancy. Doctors, hospitals, and administrators repeatedly refused R.R. information and diagnostic tests until abortion was no longer an option. Poland has one of the most restrictive abortion laws in Europe, but the law does allow for abortion in cases of fetal abnormality and entitles women to receive genetic prenatal examinations in this context.

The Center argued that R.R.’s rights, defined within the Convention to be free from inhumane and degrading treatment, private and family life, access to justice, and nondiscrimination, were violated. The Court was asked to urge the Polish government to change its practice for prenatal examinations and access to abortion, as well as its policies on conscientious objection.  

The Decision

In a groundbreaking decision, the Court found, for the first time in an abortion-related case, that Poland violated the prohibition of inhumane and degrading treatment. The Court recognized the humiliation and suffering R.R. endured during her pregnancy and that she was lawfully entitled to receive available diagnostic services.

The Court also noted that R.R.’s access to genetic testing “was marred by procrastination, confusion and lack of proper counselling and information given to [her]” …and that ultimately she obtained admission to a hospital where the genetic tests were conducted “by means of subterfuge.”

The Court made clear that access to diagnostic services was decisive for the “possibility of exercising her right to take an informed decision as to whether to seek an abortion or not.” The Court noted the crucial importance of timely access to information on one’s health condition by stating 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.” It noted that effective implementation of abortion laws is important for ensuring a right to lawful abortion and found Poland’s failure to do so a violation of R.R.’s right to private life. 

Also for the first time in history, the Court addressed the obligation of states to regulate the practice of conscientious objection to ensure patients have access to health services they are entitled to receive. In R.R.’s case, it was her right to prenatal examinations and abortion. The Court noted that freedom of conscience does not protect “each and every act or form of behaviour motivated or inspired by a religion or a belief,” and made clear that states have an obligation “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.” [i]  

The Precedent

The decision in R.R. v. Poland is a critical victory for ensuring access to safe and timely abortion. Across Central and Eastern Europe, attempts to restrict access to abortion are becoming increasingly common, with a particular focus on restricting access on grounds of fetal impairment.  This judgment sends a strong message to all Council of Europe member states that ensuring access to information and prenatal diagnostic services is critical to ensuring a woman’s privacy and personal autonomy and central to her exercising her right to lawful abortion.

Due to the strong influence of the Catholic Church hierarchy, laws regulating abortion in Poland are some of the most restrictive in Europe. These laws limit legal abortion to cases where a woman’s life or health is in danger, severe fetal impairment, and when the pregnancy is the result of a crime. The laws allow physicians to refuse treatment based on their conscience with little or no oversight.  As a result, women are unable to access abortion even when it is lawful. The restrictive laws, and its’ even stricter implementation, have led to abortion tourism and to many illegal abortions, some of which are unsafe.  Human rights violations in this area are common, as recognized by the European Court of Human Rights in a case the Center worked very closely on, Tysaic v Poland, and by numerous UN human rights bodies over the years. The R.R. judgment adds to the ever-growing recognition of Poland’s human rights violations.

The Court awarded R.R. 45,000 Euros in damages for the human rights violations she suffered. The decision also obligates Poland to ensure that its laws on access to abortion and genetic prenatal examinations are fully implemented so that access to such healthcare services is a reality for women. The Court also reaffirmed its previous decision in Tysiac v. Poland that an effective and timely appeals mechanism exists to ensure women can appeal a health provider’s decision to refuse services.  In addition, Poland must now fulfill its obligation to ensure that its health system is organized in a way that the exercise of conscientious objection does not hinder women’s ability to receive prenatal examinations and abortion. 

The Center and its partners in Poland will be working towards ensuring the implementation of the Court’s decision.

The Center and the Polish Federation for Women in Family Planning have collaborated on two additional pending cases against Poland at the Court, Z. v. Poland and S &, T v. Poland.