Landmark Ruling Issued by the European Court of Human Rights Regarding Abortion Access and Rule of Law in Poland

18-12-2023

Sofía Medina Sánchez 

International Justice and Human Rights Researcher 

Global Human Rights Defence 

On the 14th of December, the Chamber judgment in the case of M.L. v. Poland (application no. 40119/21) relating to restrictions on abortion rights, found a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The case concerned the nearly complete prohibition on abortion in Poland caused by a ruling by the Polish Constitutional Court in October 2020. The applicant, a Polish woman eligible for an abortion due to foetal abnormalities, found herself unable to proceed with the procedure in Poland following the Constitutional Court's decision. Consequently, she was compelled to carry the pregnancy to term and sought an abortion abroad, obtaining the procedure in a private clinic.

The applicant contended that Poland had breached her right to private and family life (as per Article 8 of the Convention) and the prohibition of torture and inhuman or degrading treatment (Article 3 of the Convention). This assertion was grounded in the claim that the circumstances resulted in her enduring suffering, humiliation, and unforeseeable consequences to her mental and physical well-being. Additionally, the applicant claimed a violation of the right to a fair trial (Article 6 of the Convention) since the imposed restriction was not "prescribed by law" owing to the Constitutional Court’s perceived lack of impartiality and incorrect composition.

With respect to Article 3, the Court found that the harm and suffering did not meet the threshold required to constitute inhuman or degrading treatment. Therefore, it found no violation of Article 3 ECHR due to insufficient severity. 

Regarding the complaint under Article 8, the court ruled that the Polish Constitutional Court’s decision constituted an unlawful interference into the applicant’s right to private and family life. Primarily, the Court based this finding on irregularities in the appointment process of judges to the Polish Constitutional Court's bench, undermining its legitimacy and compliance with the rule of law. Hence, the Court determined that the violation of the applicant's rights was not lawful under Article 8 of the Convention, as it had not been mandated by a body adhering to the rule of law standards. Moreover, the Constitutional Court’s decision disrupted the ongoing process for which the applicant had met the qualifications, leaving her without adequate safeguards against arbitrariness. In summary, the infringement upon the applicant's rights was not "in accordance with the law," violating Article 8.

The ECtHR verdict carries wider significance for the ongoing discourse on women’s reproductive rights. The restrictive changes to Polish abortion law during the tenure of the right-wing Law and Justice Party sparked extensive protests. In contrast, the current liberal government in Poland has pledged to safeguard women's rights and introduce legislation permitting abortion up to 12 weeks.

This case underscores the intricate legal and ethical considerations linked to abortion rights and healthcare access. It emphasises the necessity for inclusive and empathetic reproductive healthcare policies that honour and safeguard women’s rights. There is an increasing demand for governments globally to guarantee that women possess the autonomy to make choices about their bodies without intervention or unwarranted obstacles. 

Sources and further reading: 

Case of M.L. v. Poland (Application no. 40119/21), Judgement, First Section, 14 December 2023 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-229424%22]}.

Press Release issued by the Registrar to the Court, ECHR 354 (2023), 14 December 2023

: https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%2240119/21%22]}.

ENNHRI, “European Court of Human Rights issues landmark judgment on access to abortion and rule of law in Poland”, 15 December 2023: https://ennhri.org/news-and-blog/european-court-of-human-rights-issues-landmark-judgment-on-access-to-abortion-and-rule-of-law-in-poland/#:~:text=case%20is%20about%3F-,The%20case%20of%20M.L.,the%20basis%20of%20foetal%20abnormalities.

Zara Nwosu, Medriva, “European Court of Human Rights Rules on Polish Abortion Case: A Landmark Verdict for Women’s Reproductive Rights”, 15 December 2023: https://medriva.com/health/womens-health/european-court-of-human-rights-rules-on-polish-abortion-case-a-landmark-verdict-for-womens-reproductive-rights/.