The ECHR was asked about the possible contradiction between the decision of the Polish Constitutional Court in 2021, restricting access to abortion, and the European Convention on Human Rights.
Under communism, abortion was practiced in Poland as in all countries subjected to the red dictatorship. After the fall of the Berlin Wall, a 1993 law restricted access to abortion, decriminalizing it in case of rape, danger to the health of the mother, or malformation of the fetus.
In 2020, the Polish Constitutional Court, responding to a request from Polish parliamentarians, ruled that the latter exception was not compatible with the Polish Constitution which guarantees the “legal protection of life.” Thus, since January 2021, it is no longer possible to have an abortion in the event of a fetal malformation if there is no danger for the mother.
A feminist association, the Federation for Women and Family Planning, has proposed online forms for women to petition the ECHR, under the pretext of violating Article 8 of the European Convention on Human Rights.
Of the eight applicants, only four were pregnant. Two of them had healthy children and the other two had diseases that could lead to a risk of fetal malformation. The other four reported postponing their desire to have a child for fear of not receiving medical assistance if the fetus had a birth defect.
The Court noted, on the one hand, that the two applicants, who claimed to be suffering from conditions believed to lead to an increased risk of fetal malformation, had not provided any medical evidence to support their claims in their applications.
In addition, the judges felt that the risk of a future infringement of rights can only very rarely be invoked to introduce a motion, “no convincing evidence has been produced, proving exposure to a real risk of being harmed by amendments to the law,” summarizes the ECHR.
Finally, in the opinion of the ECHR, the purpose of the applicants was to ask the Court to review, as a whole, the law and its application, in order to generate a political debate on the issues relating to procreation and termination of pregnancy in Poland. For these reasons, the Court declared unanimously the applications inadmissible.
In written observations sent to the Court, former European Commissioner for Health, Tonio Borg, and several former judges of the ECHR, recalled that the Court has never established a right to abortion, and that this right cannot be inferred from the European Convention on Human Rights. Moreover, at the time of the adoption of the Convention in 1950, none of the states that participated in its drafting had authorized abortion.
If abortion can be considered, in the light of European human rights law, as an exception to the principle of protection of human life, in no case does it constitute a right which could be imposed on states despite their national laws, argued the authors of these written submissions.
On June 8, 2023, the European Court of Human Rights (ECHR) rejected the complaint lodged by eight women against the Polish legislation prohibiting abortion in the event of fetal malformation.