Center and Partners File Third-Party Submissions to European Court of Human Rights in Cases Challenging Poland’s Abortion Restrictions

The Center for Reproductive Rights and its partners have filed third-party submissions to the European Court of Human Rights (ECHR) to intervene in four groups of cases filed by 19 women challenging Poland’s highly restrictive abortion law.

The third-party interventions—made in K.B. v. Poland and 3 other applications (App. no. 1819/21); K.C. v. Poland and 3 other applications (App. no. 3639/21); A.L.- B. v. Poland and 3 other applications (App. no. 3801/21) and in M.B. v. Poland and 4 other applications (App. no. 5014/21)—outline the implications and harms of highly restrictive abortion laws on persons who can become pregnant.

In the cases, the applicants complain that they are potential victims of a violation of their rights to be free from ill-treatment and to respect for private life, as guaranteed in the European Convention on Human Rights, following the October 2020 ruling by Poland’s discredited Constitutional Tribunal that invalidated as unconstitutional a previous legal ground for abortion under Polish law.

The applicants complain that Polish law obliges them to adapt their conduct and causes them grave harm since the Tribunal’s ruling has deprived them of the possibility to terminate a pregnancy that involves a severe fetal impairment or is non-viable. They also complain that this interference with their rights does not meet requirements that it be in accordance with the law, as it resulted from a ruling made by a tribunal that cannot be considered independent and impartial. 

The third-party interventions were submitted on 19 November 2021 and 22 June 2022 respectively by the Center and Amnesty International, Human Rights Watch, the International Commission of Jurists (ICJ), the International Federation for Human Rights (FIDH), the International Planned Parenthood Federation European Network (IPPF EN), Women Enabled International, Women’s Link Worldwide, and the World Organisation Against Torture (OMCT).

The interventions provide evidence and analysis drawing on international human rights law, comparative European law and guidelines from the World Health Organization.

They examine how prohibitions on abortion:

• (i) directly affect people who can become pregnant and can cause them grave harm;
• (ii) may lead to prohibited ill-treatment in violation of Article 3 of the European Convention on Human Rights; and
• (iii) may violate the right to respect for private life guaranteed by Article 8 of the Convention.

On 2 December 2022, the Center and the organisations listed above filed third party submissions in I.Z. v Poland and 4 other applications. In these cases, the applicants also complain that their Article 8 and Article 3 rights have been breached due to the fact that they could not obtain an abortion in Poland and that they had to travel to access abortion care.

Abortion is Now Almost Impossible to Access in Poland

Poland has one of Europe’s most restrictive abortion laws. Together with Malta, it is one of only two European Union member states that has not legalized abortion on request or broad social grounds. In Poland, abortion is only permitted in situations of risk to the life or health of a pregnant woman, or if a pregnancy results from rape. In practice, however, it is almost impossible for those eligible for a legal abortion to obtain one. Every year thousands of women leave Poland to access abortion care in other European countries, while others import medical abortion pills or seek abortion outside the scope of the law in Poland.

On 22 October 2020, Poland’s discredited Constitutional Tribunal ruled that provisions allowing abortion on grounds of severe or fatal fetal impairment were unconstitutional. The ruling, which went into force on 27 January 2021, followed a case filed by members of the Polish Parliament and formally supported by the Prosecutor General. Both the European Court of Human Rights and the European Commission have found that the Constitutional Tribunal does not meet fair trial requirements due to its lack of independence from the legislative and executive powers.

The ruling resulted in the elimination of one of the only remaining legal grounds for abortion under Poland’s highly restrictive law, leaving the country with effectively a near-total ban on abortion. Previously, over 90 percent of the approximately 1,000 legal abortions annually performed in Poland were on this ground.

The ruling—which came as the COVID-19 pandemic restrictions made travel for abortion care prohibitively difficult and costly—spurred the country’s largest public protests in decades, led by women human rights defenders. According to reports by activists and women’s rights organizations, the Tribunal’s ruling is having a significant chilling effect as medical professionals fear repercussions even in situations where abortion remains legal. Women human rights defenders and civil society organizations advocating to overturn the ruling and to reform Poland’s abortion law have faced threats of violence and several protestors have been prosecuted.

Repeated attempts in recent years to undermine sexual and reproductive rights in Poland continued in 2021. In September, a civic initiative “Stop Abortion” bill was introduced in the Polish Parliament. The bill, which the Parliament rejected in December, would have equated abortion to homicide and introduced criminal penalties for individuals who have abortions — as well as anyone who assists them —with punishment of up to 25 years in prison.

Read the submissions to the ECHR here.

Press release: Regression on Abortion Access Harms Women in Poland, 01.26.22