Still practical difficulties to exercise the right to legal abortion in Poland

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P. and S. v Poland (Application No 57375/08)

Briefed on: 10 September 2018 and on 25 February 2019

Documents from the 2019 briefing:

Documents from the 2018 briefing:

The 2012 judgment in the case of P. and S. v. Poland (application no. 57375/08) is one of three important decisions of the European Court of Human Rights (ECtHR) concerning access to legal abortion in Poland. In all three cases, the ECtHR ruled that the rights of the applicants were violated because of the practical difficulties they experienced in exercising their right to legal abortion. To fully implement these judgments, the Court stated that the national authorities must take steps to guarantee not only theoretical but also practical access to abortion.

An update on the case was delivered in September 2018 by Ms Katarzyna Wisniewska, Coordinator of the Strategic Litigation Programme at the Helsinki Foundation for Human Rights (Poland), and in February 2019 by Katrine Thomasen, Senior Legal Adviser for Europe at the Centre for Reproductive Rights, and Kamila Ferenc, lawyer at the Federation for Women and Family Planning in Poland.

They underlined that the authorities’ communications dated January 2019 had not provided information on any measures towards establishing such a “viable system” for effective access to legal abortion care and thus comply with the Court’s judgment and the Committee of Ministers’ decision of September 2018 on the case. The authorities continued to claim that existing legal provisions and mechanisms are adequate. However, as Ms Thomasen highlighted, according to official statistics only between 0 and 3 legal abortions are performed each year in Poland on grounds of a pregnancy resulting from sexual assault. In addition, conscience-based refusals of abortion care remain widespread.

In light of this situation, Ms Thomasen and Ms Ferenc invited the Committee of Ministers to ask the Polish authorities to:

·        Guarantee timely referral in situations of conscience-based refusals of legal abortion care

·        Rigorously enforce legal provisions on abortion and refusals of care, including through sanctions and disciplinary measures

·        Adopt urgent procedural mechanism: decision within max. 3 days; the right of judicial appeal; enforceable orders mandating the care to be provided

·        Monitor and enforce National Health Fund contracts