Strasbourg Observers: P and S v. Poland – Adolescence, vulnerability, and reproductive autonomy

This week, the European Court of Human Rights issued its decision in P and S v. Poland, a case of a Polish teenager who became pregnant as a result of rape and was humiliated, harassed, and manipulated in her quest for a legal abortion. Building on the landmark cases against Poland’s restrictive abortion practice, Tysiąc v. Poland (2007) and R.R. v. Poland (2011) (see blog posts here and here), this judgment further clarifies the Court’s stance that reproductive health services that are legal must also be accessible. It also develops important reasoning on the vulnerability of young rape victims as well as their right to personal autonomy in matters of reproductive choice. The Court establishes that P and S had been subjected to several violations of their rights under Article 8, Article 5, and Article 3. This is a groundbreaking case, particularly in regard to the sexual and reproductive rights of adolescents. It opens the door to legal challenges to regimes that restrict young people’s reproductive self-determination, such as parental consent laws and strict procedural requirements to prove rape as a requirement for access to legal abortion.

Facts

The facts of the case are worth briefly revisiting. Abortion in Poland is legal only on limited grounds: when the pregnancy threatens the life or health of the pregnant woman, when there is a high risk for severe fetal impairment, and when there are strong grounds to believe that the pregnancy is the result of a criminal act. P was 14 years old in 2008 when she was raped by a classmate and became pregnant as a result. She obtained a certificate from the prosecutor certifying that her pregnancy resulted from unlawful sexual intercourse, and had thereby a right to legal abortion under Polish law. However, her access to abortion was severely obstructed. Supported by her mother, she visited three different hospitals, receiving deliberately distorted information about the requirements for obtaining an abortion. The hospital disclosed P’s personal and medical data to the press and general public. She and her mother were manipulated and harassed by doctors, anti-abortion groups and representatives of the Catholic Church. Doctors invoked conscientious objection without referring P to another provider or hospital. Hospital staff, a priest and the police attempted to manipulate the relationship between P and her mother, asserting that the mother tried to coerce P into having an abortion—a process which resulted in state authorities removing P from S’s custody and detaining her in a juvenile center. When P finally received a legal abortion following an intervention from the Ministry of Health, it happened in a clandestine manner. P was not registered as a patient and received no post-abortion care.

The reasoning of the Court is rich and strongly worded. I will only elaborate on some of the most striking and innovative aspects of the judgment.

Reasoning under Article 8

Under Article 8, the Court first discusses the determination of access to legal abortion and how the process by which the applicants attempted to access this medical service breached the State’s positive obligations to respect their right to privacy. The Court builds on its reasoning in Tysiąc and R.R., reaffirming that once a State has adopted statutory regulations that allow abortion is some situations, it must also make access available in practice. Given the strong precedents and due to the fact that the applicant had an uncontested right to legal abortion under Polish law, it was not surprising that the Court found Article 8 violations in this regard. However, the Court also elaborates on these established principles in important ways, with due regard to the specific facts at hand.

Conscientious objection

First, the Court addresses the practice of conscientious objection, which played a key part in the humiliating treatment of the applicants in this case.[1] The Court reaffirms its statement from R.R., that states are obliged to organize their health systems in a way that reconciles the freedom of conscience of health professionals with patients’ rights to lawful services, and then goes on to specify how the Polish practice is flawed. Although health providers in Poland have a legal obligation to make their refusals to provide abortion services in writing and to refer patients to non-objecting providers, these procedural requirements were not complied with. Effectively, the Court concludes, the medical staff involved did not consider themselves obliged to carry out the medical services in question. Even though the Court does not go as far as to say that the requirements provided for in the Polish law—mandatory referral and written refusal—should always accompany regulations on conscientious objection, I would suggest that since the Court went out of its way to mention these criteria it may also consider them minimum safeguards to ensure patients’ access to legal services. This, in combination with the Court’s reaffirmation of limitations to freedom of religion—“that the word ‘practice’ in Article 9 § 1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief”—makes a strong case for State obligations to improve regulation in law and practice of conscientious objection of health providers in order to respect and protect patients’ rights under Article 8.

Role of the mother in this case

Second, the Court discusses the mother’s interest in her daughter’s access to an abortion. The mother fully supported her daughter throughout the process, which led anti-abortion hospital staff and Church officials to assert that she tried to pressure the teenager into having an abortion against her will. That claim—clearly false as illustrated by the facts of the case—taken aside, there was no conflict between the mother and the daughter. Nevertheless, the Court takes this opportunity to make a strong case for sexual and reproductive self-determination of adolescents, stating that “legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere.” This is an extraordinary statement, and one that reasonably can be expected to be attacked by conservative groups concerned about weakened parental authority over children. With regard to the sexual and reproductive rights of adolescents, and the protection of these rights under the European Convention of Human Rights, the importance of this statement cannot be overstated. It can, for example, be used to challenge laws that require parental consent for access to abortion or contraception for adolescents.

The Court then goes on to state that nevertheless, mothers tend to be concerned about the wellbeing of their adolescent daughters, and it is “natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter.” Again, the emphasis is on the choices made by the adolescent herself—but the State must ensure that parents can fully support their teenagers when these have to face difficult reproductive dilemmas. In the case at hand, the Court concludes, there was no system in place that took into account the concerns of the mother and, thus, her right to respect for her private life under Article 8 was also violated.

Reasoning under Article 3

Under Article 3, the Court highlights the special vulnerability of the teenager in this case. In its assessment of whether the ill-treatment that she faced reached the minimum level of severity to fall under the scope of Article 3, the Court states that it is of “cardinal importance” that she at the time was only fourteen years old. It also reiterates that it was uncontested that she had been subjected to sexual abuse. In spite of this obvious state of great vulnerability, she was subjected to pressure, coercion and manipulation as soon as she arrived to the hospital, and she also had to witness how her mother was verbally attacked and humiliated by the doctor.

The Court highlights that instead of offering the applicant protection after she was harassed, state authorities further compounded the situation. For example, when she and her mother sought police protection from anti-abortion activists, the police instead arrested her and sent her to the juvenile center. The Court is also “particularly struck” by the fact that a criminal investigation was initiated against the teenager for having engaged in unlawful intercourse, when it was clear from the submitted documents that she in fact was the victim of sexual abuse. Even though the investigation against her ultimately was discontinued, the Court finds that the mere fact that it was initiated shows a “profound lack of understanding of her predicament.” In short, the combination of the applicant’s vulnerability and the failure to protect her against third parties, the approach by the authorities that was “marred by procrastination, confusion and lack of proper and objective counselling and information,” and her forced separation from her mother, led the Court to conclude that the applicant’s suffering reached the minimum threshold of severity under Article 3. This conclusion builds on the finding in R.R., where the Court for the first time found that an abortion-related violation could amount to inhuman and degrading treatment under Article 3, and borrows some of its language. However, in this case the vulnerability aspect is elaborated further: anybody reading the Court’s reasoning in this part will be struck by the sense of outrage it reflects. The Court’s understanding of the State authorities’ obligation to protect a vulnerable teenager is particularly important, since “protection” was precisely what the Polish authorities claimed to be exercising: they attempted to “save” her from the malicious pressure supposedly subjected by her mother, for example, by locking her up in a juvenile center far from her home. The Court does not accept that this was the kind of protection that the adolescent needed but, instead, emphasizes her vulnerability in combination with, again, her right to self-determination: “no proper regard was had to [her] vulnerability and her own views and feelings” (emphasis added). Those views and feelings included, clearly, not only her wish to have an abortion but also her strong need for support from her mother in an extremely difficult life situation.

There are many other interesting aspects of this case, such as the discussion around the deliberate disclosure of the applicant’s personal and medical data and how this grossly violated her right to private life, as well as the (short and somewhat unsatisfactory) reasoning on why her detention in the juvenile center breached her right to liberty under Article 5 § 1. However, space does not allow me to elaborate on these aspects here—I can only encourage the interested reader to enjoy the judgment in its entirety.

Claims that were rejected by the Court

I will, however, add a few words on the claims that were rejected by the Court. In addition to the Article 8 and Article 3 violations that were confirmed by the Court, the applicants also argued that the failure to provide P with emergency contraception when she reported the rape to the police constituted a violation of her Article 8 and Article 3 rights. The Court decided not to comment on this claim, which is unfortunate—as pointed out by the WHO and by the Inter-American Commission recently, access to emergency contraception for rape victims is an indispensable part of emergency care following sexual assault and, thus, can reasonably be argued to constitute part or the State’s positive obligations under the Convention. Similarly, the applicants asserted that Poland had breached their rights under Article 9, arguing that religious views had been imposed on them and therefore their non-belief had not been respected. It is perhaps not surprising that the Court decided not to rule in their favor in this respect, even though it would have been a truly important statement had the Court declared that there is a right to non-belief under the Convention. Finally, the applicants elaborated on the discriminatory aspects of their treatment: they had hoped that the Court would recognize, in line with statements from the CEDAW Committee, that denial or delay of reproductive health services is discrimination against women and therefore in violation of Article 14 taken together with other relevant articles. However, just like in the other cases on reproductive health services the Court declined to comment on or address this claim. While the Court is increasingly open to acknowledging reproductive rights as human rights under the Convention—at least as regards practical access to legal services and protection against humiliation and harassment in the reproductive health field—reproductive rights advocates still have ways to go to convince the Court that these violations also are an expression of gender discrimination. Here more cases that illustrate, analyze and explain these links will be paramount. We also have to engage in continued legal advocacy that will bring the Court up to speed with other international human rights bodies that have developed a more sophisticated understanding of the multi-faceted expressions of gender discrimination in the reproductive health sphere.

The Center for Reproductive Rights represented the applicants in P and S v. Poland before the ECtHR, see the Center’s press release here

This article is also available on the Strasbourg Observers website >,