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


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

Briefed on: 10 September 2018

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. On 21 September 2017, the Committee of Ministers issued a decision asking the Polish government to present information on the guarantees of effective access to legal procedures for pregnancy termination.

In June 2018, the Polish Government sent a report indicating that, in its opinion, the current regulations ensured effective access both to abortion and to information on the possibility of underdoing such a procedure.

Referring to this Report, Ms Katarzyna Wisniewska, Coordinator of the Strategic Litigation Programme at the Helsinki Foundation for Human Rights (Poland), highlighted that the Polish government did not fully and thoroughly address the matters invoked by the Committee of Ministers in its September 2017 decision. First of all, the procedure of imposing financial penalties on medical facilities for non-performance of the contract with the National Health Fund is not an effective measure to protect women applying for abortion, commented Ms Wisniewska. Second, the date on the complaints filed with the Commissioner for Patients' Rights and the National Health Fund concerning refusals to perform an abortion was not included in the Government’s report.  

In terms of recommendations to support implementation of the judgment, Ms Wisniewska therefore noted the need for detailed data on such complaints and the way they were tackled. She also called for detailed information on disciplinary measures against doctors related to the refusal to perform abortion and how they were conducted. Moreover, she expressed her concern that analytical works would be ongoing at the Ministry of Health to amend the provisions concerning the objection to an opinion or decision of the doctor, and insisted on the need to introduce mechanisms to ensure that the right to abortion is not nullified by doctors’ invocation of the conscience clause.