Poland Gets Ready to Test the International Law Limits of Abortion Bans

by Julian Ku

Or so it would seem, based on this analysis from the European Center for Law and Justice, a right-leaning public interest law firm.  A proposed new law in Poland appears to ban abortion under any circumstance, thus replacing the current law, which allows exemptions for the mother’s health and for cases of rape and incest. If, as the ECLJ argues, there is no international law right to an abortion, than I suppose the clean ban would seem more acceptable. But although I have not studied this question, I am not sure that a complete ban would ultimately survive review under the European Convention of Human Rights. But that’s just a gut feeling. Any actual experts out there should feel free to chime in.

http://opiniojuris.org/2011/07/19/poland-gets-ready-to-test-the-international-law-limits-of-abortion-bans/

4 Responses

  1. Julian, I think we can operate on more than a “gut feeling” level here. The ECtHR judgments on abortion including those addressed to Poland and Ireland (probably the two most restrictive regimes) make it clear that, so far at least, the Court considers that whether or not and, if so, to what degree, to allow abortion is within the margin of appreciation of member states. This is notwithstanding the finding in A, B & C v Ireland that there is a European consensus in favour of at least some abortion-permissibility. The situation seems to be that the state can decide for itself whether there is to be any abortion in their state but–and this has been the crucial point of breach in cases against Poland and Ireland–if there is allowance for some abortion that must be practically accessible for those who want it. In other words, undue obstacles (either through law or through the absence of law and guidelines) placed in the way of the exercise of a right to access abortion ESTABLISHED IN DOMESTIC LAW (and NOT required by the ECHR) will constitute a breach. My reading of the existing Strasbourg jurisprudence is that there is no prohibition on creating an absolute ban on abortion in domestic law. However, in large the Court has dealt with cases where there was some allowance that was being made illusory by legal or logistical obstacles. The Court may change its view if it were presented with an absolute ban, and of course the evolutive interpretation to which the Court is committed allows of that, but if I were advising a government I would have to say (with some regret, I must admit) that the legal situation as it stands appears to allow the introduction of an absolute ban in domestic law.

  2. That sounds like a correct write-up of A, B, and C. v. Ireland, although I do wonder whether it will matter that going abroad from Poland isn’t necessarily as easy as going to England from Ireland.

    The best place to look for a detailed analysis of ECHR cases is Strasbourg Observers. This is their post about the Irish case:

    http://strasbourgobservers.com/2010/12/17/a-b-and-c-v-ireland-abortion-and-the-margin-of-appreciation/

  3. Also, the applicants might be able to rely on the even newer, though not Grand Chamber, ruling of R.R. v. Poland:

    http://strasbourgobservers.com/2011/05/31/r-r-v-poland-of-reproductive-health-abortion-and-degrading-treatment/

  4. Response…”no international law right to an abortion”

    Or, if there is no health exception, a right to protect one’s health.  The law would appear to go back to “conception,” so various means of “birth control” like IUDs and certain pills (putting aside RU-486) would apparently be banned.

    Focusing on “abortion” here is questionable. It is not really a matter of a “right” to a specific health choice, but to health needs as a whole. If the chance that an IUD or birth control pill might affect a fertilized egg is going to mean women can’t use them even if a pregnancy would seriously harm them is going to be the law, women’s health is second class.

    If this is the law, let’s use language that truly says what is at stake.
     
     
     
     
     
     
     

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