‘Dangerous’ Abortion Cases and the Dangers of Misportraying ECtHR’s Inadmissibility Decisions

On the 8th of June, 2023, the European Court of Human Rights (‘ECtHR’, ‘the Court’) published its inadmissibility decision in the case of A.M. and Others v. Poland. The latter concerned the alleged violation of Article 8 of European Convention of Human Rights (‘ECHR’) following the legislative amendments, which were introduced by the Polish Constitutional Court’s judgment of 22 October 2020 that effectively banned access to legal abortion in the case of foetal abnormalities. This blog post seeks to highlight the purposed misportrayal of this inadmissibility decision by anti-abortion actors, and to explore what lessons can be drawn from this recent decision for the approximately 1000 applications concerning the Polish restrictive abortion policy, which are pending before the Court.

The Grounds for Inadmissibility

In its assessment of the application in A.M. and Others v. Poland, the Court highlighted that ‘[w]hile a woman of child-bearing age in Poland, being exposed to the risk of pregnancy with foetal abnormalities, may be affected by the impugned restrictions on access to therapeutic abortion, in order for an applicant to be able to claim to be a victim in such a situation, she must produce reasonable and convincing evidence of the likelihood that a violation affecting her personally will occur’ (para. 78). However, the Court further observed that the two applicants, who claimed to have medical conditions which allegedly caused a higher risk of foetal malformation did not provide any medical evidence on the matter (para. 80).

Similarly, the two applicants who were pregnant at the time of lodging their applications did not allege that their foetuses had been diagnosed with any abnormalities or that there was such a risk (para. 81). Moreover, regarding the remaining applicants, who claimed that while planning their pregnancy they feared that they would not receive adequate medical care from the State, the Court found that they did not provide further details and/or any documents in support of their claims (paras. 82-83).

Finally, the Court underlined that while most applicants had referenced their age in their applications, they did not argue that they were at a higher risk of having a child with chromosomal abnormalities due to their age (para. 84). Hence, the applicants were found to have failed to advance any convincing evidence that they were at real risk of being directly affected by the amendments, and their applications were rejected as inadmissible since they did not manage to substantiate their victim status under ECHR Article 34 (paras. 86-87).

From Inadmissible Applications to Rejected Claims

Soon after the decision was issued, its misportrayal by anti-abortion media began. Precisely, the said inadmissibility decision was described as ‘a defeat for the abortion lobbyists’, since ‘the pro-abortion groups did not succeed in convincing the Court’, which ‘agrees with the arguments’ that the anti-abortion third-party interveners offered in their written observations. However, as was noted above, the Court did not engage in an assessment of the applicants’, the State’s or the interveners’ arguments, nor did indicate its stance towards the substance of the complaints received, but sufficed itself at indicating the reasons why it found that the consequences of the legislative amendments for the applicants of the specific case were too remote and abstract (paras. 86-87). In this sense, the above description portrays the decision in a manner which could be read by persons unfamiliar with the ECtHR’s jurisprudence as meaning that the applicants’ claims were rejected, even though they were not even addressed by the Court.

New Inadmissibility Decision, Same Old Tricks

This misinterpretation of the Court’s inadmissibility decisions is no news. Long before A.M. and Others v. Poland, it was the Court’s inadmissibility decisions in Grimmark v. Sweden and Steen v. Sweden that were distorted by anti-abortion groups. In these decisions, the ECtHR had rejected the applicants’ complaints as manifestly ill-founded, holding that the Swedish authorities’ decision to not employ midwives who refused to participate in abortion procedures had struck a fair balance between on the one hand the applicants’ rights under ECHR Article 9, and on the other the protection of abortion-seeking persons’ health (Grimmark v. Sweden, para. 27; Steen v. Sweden; para. 22).

Anti-abortion groups asserted that the ECtHR ‘refused to take up’ the midwives’ conscientious objection cases (see here and here), thus implying that the putative ‘right’ of healthcare professionals to refuse to participate in/provide abortions had not been considered and is still open for the Court’s future consideration. As Barke underlined, however, this was inaccurate; the Court’s finding of the applicant’s complaints as manifestly ill-founded actually meant that it rejected the application as inadmissible because it considered that there was a clear or apparent absence of an ECHR violation that would otherwise require the Court to ‘take up’ the case (Grimmark v. Sweden, paras. 22-28; Steen v. Sweden; paras. 17-23).

The Court’s inadmissibility decision in Boso v. Italy has also attracted misportrayal attempts. There, the ECtHR had declared as manifestly ill-founded the complaints of a foetus’ ‘father’, who had challenged the Italian abortion policy as incompatible with ECHR Article 2, in that it authorised abortion and, thus, allowed a foetus to be deprived ‘of its life’, and ECHR Articles 8 and 12 in that it had been impossible for him to have any influence on his wife’s decision to have an abortion, and to found a family. Nonetheless, the mere prima facie consideration of the application by the Court, was argued to suggest that the foetuses’ ‘fathers’ could submit interim measures requests to the Court, asking it to halt an abortion and thereby the realization of a serious and imminent risk of their and the foetus’ ‘rights’.  In this sense, the inadmissibility decision was projected as if it had left the issue open for further assessment by the Court, which ‘stayed on the edge, refusing to throw the unborn child out of the scope of the Convention, and refusing to let him “naked”’ (it is a he in case you were wondering).

However, the Court’s dictum in Boso v. Italy, that ‘any interpretation of a potential father’s rights under Article 8 of the Convention when the mother intends to have an abortion should above all take into account her rights, as she is the person primarily concerned by the pregnancy and its continuation or termination’ seems to be pointing to a different direction, as does the Court’s recollection of the Commission’s view, issued in 1980, that the potential father’s right to respect for his private and family life cannot be interpreted so widely as to embrace the right to be consulted or to apply to a court about an abortion which his wife intends to have performed on her ( X v. the United Kingdom, p. 254).  

Some Inadmissibility Decisions Indicate the Court’s View of the Claims, but Which Ones?

The ECtHR’s inadmissibility decisions in Grimmark v. Sweden, Steen v. Sweden, and Boso v. Italy all share the same characteristic: they were all explicitly found to be manifestly ill-founded pursuant to Article 35(3)-(4) of the Convention. Thus, in these cases, the Court proceeded with a prima facie assessment of the claims, which was sufficient for it to conclude that an in-depth assessment was unneeded. Other healthcare professionals, unwilling to perform abortions, or other ‘relatives’ of other foetuses could bring similar complaints to the Court, but the latter would most likely reject them in line with ECHR Article 35 (2)(b).

Conversely, the Court did not declare the applications in A.M. and Others v. Poland inadmissible after rejecting the applicants’ claims’ as manifestly ill-founded. The applications were rejected because the applicants could not prove that they were themselves directly affected by the impugned legislation. In this sense, the compatibility of the Polish abortion policy with the ECHR is still open to assessment by the Court, provided that other applicants prove that they were directly affected by this legislation. This seems to be the reason why in anti-abortion circles, pending applications that are likely to be found admissible by the Court (such as M.L. v. Poland, where the applicant had to travel to the Netherlands to receive an abortion as the foetus she carried was diagnosed with Trisomy 21) are characterised as ‘dangerous’.

Concluding Remarks

Regardless of whether the misportrayal of the above ECtHR’s inadmissibility decisions is purposed or a result of a misunderstanding of how the Convention system works, it has already been reproduced in other media, thus signalling the effect that these misportrayals may have in the depiction of the pro-abortion applicants’ claims in the public perception. Against this background, it seems imperative to highlight that the compatibility of the prohibition of access to abortion in cases of foetal impairment with the ECHR is yet to be dealt with by the Court, as the substance of the applicants’ relevant claims has not been found ‘unconvincing’. In fact, the ECHR Member States’ subsequent practice, the Court’s recent criticism of paternalistic domestic laws, as well as the relevant jurisprudence of human rights fora seem to be pointing in the opposite direction. Whether that is more ‘dangerous’ than misportaying the Court’s jurisprudence, is open to interpretation.

Photo: ‘Protest against Poland’s new abortion laws held in Gdansk on 24.10.2020’ (LukaszKatlewa, 2020).