ECHR Rules on Therapeutic Abortions
The European Court of Human Rights rendered an important decision this week on the European Convention’s guarantees regarding “therapeutic abortions”, i.e., abortions necessary for the life or health of the mother. The case summary of Tysiąc v. Poland is here and the full text of the judgment is here.
Polish law (the “1993 Act”) authorizes the termination of pregnancies if the health or life of the mother is at risk. In Tysiąc, a mother of two became pregnant in February 2000. She suffered from severe myopia and sought medical advice as to whether delivery would adversely impact her eye illness. The medical opinions were mixed as to whether delivery was a risk to her eyesight, such that medical authorization for therapeutic termination of the pregnancy was denied. The applicant delivered the baby in November 2000. After delivery, her eyesight deteriorated, and she now is unable to see from more than a distance of 1.5 meters (five feet). Before the pregnancy she could see from a distance of six meters (twenty feet). Medical opinions were mixed as to whether this deterioration was a result of the delivery.
Tysiąc lodged a criminal complaint against the doctor who denied the medical authorization for therapeutic termination. The case against the doctor was dismissed by the Polish prosecutor. She then brought an action before the ECHR for violations of the European Convention.
Article 8 of the European Convention provides that “(1) Everyone has a right to respect for his private … life …. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The key issue in the case was whether the procedural safeguards for therapeutic abortions in Poland were adequate to satisfy the requirements of Article 8. The ECHR ruled that they were not.
Following this decision, my understanding of the state of abortion law in Europe is as follows: (1) The European Convention’s protection of the right to privacy has not been interpreted to guarantee a right to abortion; (2) the margin of appreciation doctrine grants states wide discretion in regulating abortion; (3) most states allow abortion on demand while others are quite restrictive (e.g., Ireland prohibits abortion unless there is substantial risk to the life of the mother) (see details from the BBC here); (4) following Tysiąc, if a state authorizes therapeutic abortions, the state must implement procedural safeguards to make the choice a meaningful one.
For those who are more knowledgable about European law and practice in this area, please provide insights and clarifications. Here is an excerpt of the majority and dissenting opinions in Tysiąc:
104. In this context, the Court observes that the applicable Polish law, the 1993 Act, while it prohibits abortion, provides for certain exceptions. In particular, under section 4 (a) 1 (1) of that Act, abortion is lawful where pregnancy poses a threat to the woman’s life or health, certified by two medical certificates, irrespective of the stage reached in pregnancy. Hence, it is not the Court’s task in the present case to examine whether the Convention guarantees a right to have an abortion….
114. When examining the circumstances of the present case, the Court must have regard to its general context. It notes that the 1993 Act prohibits abortion in Poland, providing only for certain exceptions. A doctor who terminates a pregnancy in breach of the conditions specified in that Act is guilty of a criminal offence punishable by up to three years’ imprisonment…. According to the Polish Federation for Women and Family Planning, the fact that abortion was essentially a criminal offence deterred physicians from authorising an abortion, in particular in the absence of transparent and clearly defined procedures determining whether the legal conditions for a therapeutic abortion were met in an individual case.
115. The Court also notes that in its fifth periodical report to the ICCPR Committee the Polish Government acknowledged, inter alia, that there had been deficiencies in the manner in which the 1993 Act had been applied in practice…. This further highlights, in the Court’s view, the importance of procedural safeguards regarding access to a therapeutic abortion as guaranteed by the 1993 Act.
116. A need for such safeguards becomes all the more relevant in a situation where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, either between the pregnant woman and her doctors, or between the doctors themselves. In the Court’s view, in such situations the applicable legal provisions must, first and foremost, ensure clarity of the pregnant woman’s legal position. The Court further notes that the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility … , can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. The provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect. Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.
117. In this connection, the Court reiterates that the concepts of lawfulness and the rule of law in a democratic society command that measures affecting fundamental human rights be, in certain cases, subject to some form of procedure before an independent body competent to review the reasons for the measures and the relevant evidence …. In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures…. In circumstances such as those in issue in the instant case such a procedure should guarantee to a pregnant woman at least a possibility to be heard in person and to have her views considered. The competent body should also issue written grounds for its decision.
118. In this connection the Court observes that the very nature of the issues involved in decisions to terminate a pregnancy is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are timely so as to limit or prevent damage to a woman’s health which might be occasioned by a late abortion. Procedures in which decisions concerning the availability of lawful abortion are reviewed post factum cannot fulfil such a function. In the Court’s view, the absence of such preventive procedures in the domestic law can be said to amount to the failure of the State to comply with its positive obligations under Article 8 of the Convention.
119. Against this general background the Court observes that it is not in dispute that the applicant suffered from severe myopia from 1977. Even before her pregnancy she had been officially certified as suffering from a disability of medium severity…. Having regard to her condition, during her third pregnancy the applicant sought medical advice. The Court observes that a disagreement arose between her doctors as to how the pregnancy and delivery might affect her already fragile vision. The advice given by the two ophthalmologists was inconclusive as to the possible impact of the pregnancy on the applicant’s condition. The Court also notes that the GP issued a certificate that her pregnancy constituted a threat to her health, while a gynaecologist was of a contrary view….
124. The Court concludes that it has not been demonstrated that Polish law as applied to the applicant’s case contained any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in her case. It created for the applicant a situation of prolonged uncertainty. As a result, the applicant suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health….
128. Having regard to the circumstances of the case as a whole, it cannot therefore be said that, by putting in place legal remedies which make it possible to establish liability on the part of medical staff, the Polish State complied with the positive obligations to safeguard the applicant’s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.
129. The Court therefore dismisses the Government’s preliminary objection and concludes that the authorities failed to comply with their positive obligations to secure to the applicant the effective respect for her private life.
130. The Court concludes that there has been a breach of Article 8 the Convention.
In dissent, Judge Borrego Borrego (Spain) concluded that there was no violation of Article 8:
2. The facts are very simple: a woman who suffered from severe myopia became pregnant for the third time and, as she was “… worried about the possible impact of the delivery on her health, she decided to consult her doctors” (see paragraph 9 of the judgment). Polish law allows abortion under the condition that there is “a threat to the woman’s life or health attested by a consultant specialising in the field of medicine relevant to the woman’s condition” (see paragraph 39). Not only one, but three ophthalmologists examined the applicant and all of them concluded that, owing to pathological changes in her retina, it might become detached as a result of pregnancy, but that this was not certain (see paragraph 9). The applicant obtained medical advice in favour of abortion from a general practitioner. However, a general practitioner is not a specialist and the gynaecologist refused to perform the abortion because only a specialist in ophthalmology could decide whether an abortion was medically advisable (see paragraph 69). Some months after the delivery, the applicant’s eyesight suffered deterioration and she lodged a criminal complaint against the gynaecologist. After consideration of the statements of the three ophthalmologists who had examined the applicant during her pregnancy and a report by a panel of three medical experts, it was concluded that “there was no causal link between [the gynaecologist's] actions and the deterioration of the applicant’s vision”.
3. It is true that the applicant’s eyesight has deteriorated. And it is also true that Poland is not an island country in Europe. But the Court is neither a charity institution nor the substitute for a national parliament. I consider that this judgment runs counter to the Court’s case-law, in its approach and in its conclusions. I also think it goes too far….
10. The majority have based their decision that there has been a violation of Article 8 on the fact that the Contracting Party has not fulfilled its positive obligation to respect the applicant’s private life. I disagree: before the delivery, five experts (three ophthalmologists, one gynaecologist and one endocrinologist) did not think that the woman’s health might be threatened by the pregnancy and the delivery. After the delivery, the three ophthalmologists and a panel of three medical experts (ophthalmologist, gynaecologist and forensic pathologist) concluded that “the applicant’s pregnancies and deliveries had not affected the deterioration of her eyesight” (see paragraph 21). That being said, the Court “observes that a disagreement arose between her doctors” (see paragraph 119). Good. On the one hand, eight specialists unanimously declared that they had not found any threat or any link between the pregnancy and delivery and the deterioration of the applicant’s eyesight. On the other hand, a general practitioner issued a certificate as if she were an expert in three medical specialities: gynaecology, ophthalmology and psychiatry, and in a totum revolutum (muddled opinion), advised abortion (see paragraph 10)….
12. Abortion is legal under Polish law, but the circumstances in this case do not correspond to those in which Polish law allows an abortion. The reasoning behind the Court’s conclusion that there has been a violation of the Convention is as follows. Firstly, the Court attaches great relevance to the applicant’s fears, although these fears were not verified and, what is more, they turned out to be unfounded. Secondly, the Court tries to compare the unanimous opinion of eight specialists to the isolated and muddled opinion of a general practitioner. Thirdly, it discredits the Polish medical specialists. And finally, the judgment goes too far as it contains indications to the Polish authorities concerning “the implementation of legislation specifying the conditions governing access to a lawful abortion” (see paragraph 123).
13. The Court appears to be proposing that the High Contracting Party, Poland, join those States that have adopted a more permissive approach with regard to abortion. It must be stressed that “certain State Parties” referred to in paragraph 123 allow “abortion on demand” until eighteen weeks of pregnancy. Is this the law that the Court is laying down to Poland? I consider that the Court contradicts itself in the last sentence of paragraph 104: “It is not the Court’s task in the present case to examine whether the Convention guarantees a right to have an abortion.”…
15. All human beings are born free and equal in dignity and rights. Today the Court has decided that a human being was born as a result of a violation of the European Convention on Human Rights. According to this reasoning, there is a Polish child, currently six years old, whose right to be born contradicts the Convention. I would never have thought that the Convention would go so far, and I find it frightening.