ECHR Rules on Therapeutic Abortions

by Roger Alford

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:

7 Responses

  1. Your summary of ECHR ‘abortion law’ sounds about right to me. The only additional comments I can think of are that Article 2 (right to life) hasn’t been interpreted as guaranteeing a right to life of the unborn, and the margin of appreciation does not extend to travel or information bans re: abortion.

  2. Bleck… what an awful opinion.

    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.

    Say WHAT?! Perhaps I’m reading that wrong…

    That’s not even to mention her medical excuse was of the flimsiest nature possible. The dissent was pretty well reasoned, by comparison.

    The main purpose of the ECHR seems to be convincing the citizens of assorted countries that the European Union really wasn’t such a great idea after all.

  3. Mr Gross,

    With respect, I think you are ‘reading that wrong’, and that the same can be said about Judge Borrego Borrego.

    The Court did not decide that the applicant should have been allowed to have an abortion, or go so far as to even decide that the state of the applicant’s health was of one kind or another.

    The case concerned the procedural safeguards required by Article 8 ECHR in the context of the – limited – right to have an abortion under Polish law. The most relevant aspect of such safeguards in this case seems to have been the length of time taken for the various medical assessments.

    In other words, Article 8 does not speak as to the lawfulness of allowing or disallowing the abortion, but only imposes certain minimum standards on the procedure employed for making this decision.

    Certainly, it is unusual for a substantive right such as Article 8 to have procedural implications, but such are the requirements of the effective protection of Article 8 rights. It would seem to be enough for this procedural implication to apply that the facts of the case (in this case, the abortion), come within the scope of application of the article; it is, then, not necessary that either one of the possible decisions would involve a violation of the substantive guarantee of Article 8.

    Considering that it was therefore not the omission of the abortion that was unlawful, but certain aspects of the decision-making process, Judge Borrego Borrego’s point that ‘a human being was born as a result of a violation of the European Convention on Human Rights’ seems utterly mistaken. The learned Judge imputes to the majority a holding on the right to have an abortion, a holding the Court has (again) taken great care to avoid.

    Finally, a short remark on the final passage of your comment:

    As is well known, the ECHR has nothing to do with the European Union, except in that all members of the latter are parties to the former, and the Convention inspires the ECJ’s jurisprudence on fundamental rights in the EU legal order.

    The ECHR was adopted within the Council of Europe, a body that – like the ECHR – not only predates the EEC (and hence the EC, and the EU), but also has a much broader membership of today 46 or 47 (not sure) States, including Russia and Georgia.

    Yours is a common error, but an error nonetheless.

  4. Somehow, the link above to the Council of Europe was wrong.

    Not to mention my grammatical etc. errors.

  5. The main purpose of the ECHR seems to be convincing the citizens of assorted countries that the European Union really wasn’t such a great idea after all.

    Hmmm… it was a more general snark, but I suppose my comment did seem to imply the ECHR was a direct part of the EU. My mistake.

    My concern is primarily based around point 12, in the dissent:

    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).

    Basically, the majority is damning Poland for being thorough. It appears the majority of the delay was due to the woman’s (unfounded) fears.

    Point 15 in the dissent is added for rhetorical flourish, and the judge should have resisted the temptation to include it.

  6. I also think that Judge Borrego Borrego is completely missing the point. The violation found by the majority is because of the lack of any independent and timely procedure to decide a disagreement between the doctor and the pregnant woman and indeed also between two doctors as to whether the legal conditions for abortion in Polish law had been satisfied. The dissenting judge does not question this finding yet issues a dissenting opinion. This is a bit puzzling.

    Actually, I think that from the point of view of right to/prohibition of abortion the case is not very interesting or important. As Tobias has said the Court again refused to give any answer to any questions surrounding this issue. The last Strasbourg body to have given a clear answer was the former Commission back in 1980 in case of X v UK to my knowledge (see my paper here )

    Yet, the judgment seems to be quite groundbreaking in finding the implicit positive obligation to have an effective remedy in situations of threatening unlawful interference into some of the rights (so not only art. 8). So this introduces a potentially powerful procedural right for people that bring an arguable claim that their rights are just to be violated.

    I am curious if anyone knows if this is indeed the first case to find such a positive obligation or there have been some before. And also if others read the judgment in the same way as me.

  7. sorry. the link to the paper is here

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