More than a decade after Poland failed to stop creating barriers to abortion access—as required by three seminal European Court of Human Rights (ECHR) rulings—the Committee of Ministers of the Council of Europe recently issued a resolution ordering the Polish government to comply with the rulings by the end of 2021.
The resolution follows joint submissions by the Center for Reproductive Rights and the Federation for Women and Family Planning urging the Committee of Ministers to act on the matter.
Since the ECHR rulings, not only has Poland failed to implement the changes ordered, but the government has also introduced new restrictions on abortion. Following developments in 2020 and 2021, there is now a de facto near-total ban on abortion in Poland.
“Poland has repeatedly failed to take effective steps to enable women’s access to lawful abortion care, contravening its human rights obligations,” said Adriana Lamačková, the Center’s Senior Legal Adviser for Europe. “We welcome the Committee’s resolution calling on Poland to take urgent action to ensure effective and timely access to lawful abortion services across the country.”
Committee of Ministers Calls for Long-Overdue Measures on Abortion
The March 11 resolution issued by the Committee of Ministers calls on Poland to implement measures in order to comply with the Court’s judgments in three major cases: Tysiąc v. Poland (2007), R.R. v. Poland (2011), and P. and S. v. Poland (2013).
In each of these cases, the Court found Poland in violation of human rights, citing the government’s failure to ensure the accessibility in practice of legal abortion, as well as its failure to address medically unnecessary barriers and poor medical treatment faced by those seeking abortion care. The Committee of Ministers expressed serious concern that nearly 14 years after the first of these rulings, Poland has repeatedly failed to effectively address the judgments.
The joint communications issued by the Center and the Federation for Women and Family Planning in January and February 2021 to the Committee detailed Poland’s failure to implement the European Court of Human Rights’ judgments over many years and the chilling effect of recent regressive restrictions to further impede access to abortion care.
Access to Legal Abortion in Poland Should Exist as a Practical Right
The three cases, while different, address overlapping issues regarding authorities’ failure to ensure that legal abortion in Poland is accessible in practice—not just a legal entitlement that exists in theory.
As part of their communication to the Committee, the Center and the Federation for Women and Family Planning have urged Poland to adopt specific measures in order to comply with the Court’s judgments. These measures include the establishment of urgent procedures by which women can enforce their legal entitlements to abortion in a timely manner, guaranteed access to information about abortion for women and girls, the enhancement of patient data confidentiality, and strengthened enforcement procedures to hold health facilities and professionals accountable for failing to comply with legal obligations to provide reproductive health services and information.
The judgments also state that a woman’s access to prenatal testing cannot be undermined, a right that has been further impacted by the Constitutional Tribunal’s regressive ruling last year.
“Currently it is virtually impossible for women to secure access to legal abortion in Poland,” said Leah Hoctor, the Center’s Senior Regional Director for Europe “The narrow entitlements to abortion that exist under the current legal framework are wholly illusory in practice.”
The March resolution of the Committee of Ministers requires Polish authorities to provide an update on the specific measures taken to implement these judgments by December 2021.
A Wave of Attacks on Abortion Access in Poland
Poland has long had one of Europe’s most restrictive abortion laws, and systemic attacks on women’s rights have only increased in recent years and months.
Since 2015, the legitimacy of Poland’s Constitutional Tribunal—the top court overseeing the compliance with Poland’s constitution—has been undermined by the conservative ruling Law and Justice party. As a result, the Tribunal is no longer considered an impartial and independent court.
In October 2020, the Constitutional Tribunal considered that abortion on grounds of severe or fatal fetal impairment is unconstitutional.As a result, already highly restricted access to legal abortion care has been further curtailed. Today abortion in Poland is almost fully inaccessible in practice. A new draft bill now seeks to introduce further prohibitions on abortion and to criminalize abortion in all situations.
“Prior to these developments, Poland’s law on abortion was already one of only two remaining highly restrictive laws in the EU,” Hoctor said. “Now, Poland has the additional distinction of being the only EU member state in recent history to actually remove a ground for legal abortion. The actions of Polish lawmakers fly in the face of the overwhelming trend across the region in recent years, which has been to decrease restrictions on access to abortion and to adopt laws that protect women’s health and rights.”
Increasing Threats to Defenders of Women’s Human Rights and Civil Society Organizations
As attacks on reproductive rights and other women’s rights have intensified in Poland, so too have attacks against civil society organizations and women human rights defenders. In recent weeks, death threats and bomb threats have been received by a number of prominent activists and civil society organizations. It is vital that the Polish authorities provide protection and investigate the threats and ensure accountability of the perpetrators.
In addition, as widespread protests have occurred across Poland in response to the government’s attacks on reproductive rights, Polish authorities have sought to crack down on the right to freedom of assembly and protest.
The Center stands in solidarity with protestors and human rights defenders and urges the Polish Government to respect the rights of peaceful protestors.
- Joint submission to the Committee of Ministers regarding Poland’s implementation of three judgments of the European Court of Human Rights regarding access to legal abortion and associated reproductive health care and information.
- Joint submission of supplemental information
- Organizations Join Council of Europe’s Urgent Call for Poland to Ensure Access to Lawful Abortion Care and Services