How to Maneuver Around Acknowledging the Right to Access Abortion: Some Thoughts on the ECtHR’s judgment in M.L. v Poland

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On 14 December 2023, the European Court of Human Rights (ECtHR, Court) issued its much-awaited judgment in M.L. v Poland, i.e. in one of the approximately 1000 applications submitted before it regarding the Polish restrictive abortion policy. The application concerned the alleged violation of the applicant’s rights under the European Convention on Human Rights (ECHR), as she had to travel abroad to a private clinic to terminate her pregnancy despite carrying a foetus that was diagnosed with Trisomy 21. This barrier was a result of the legislative amendments that were introduced by the Polish Constitutional Court’s judgment of 22 October 2020, which effectively banned access to abortion even in cases of foetal abnormalities. This blog post seeks to highlight the shortcomings of the judgment against the background of other human rights bodies’ jurisprudence, and to criticise the Court’s manoeuvring around the explicit acknowledgement and stronger protection of abortion rights under the ECHR.

Overview of the Applicant’s Claims

In her application, M.L. alleged that she had suffered a breach of ECHR Article 3 (prohibition of torture and inhuman treatment), as the Constitutional Court’s judgment had deprived her of the opportunity to terminate her pregnancy on the ground of foetal defects and had, thus, caused her serious and real emotional suffering and unimaginable fear and anguish (M.L. v Poland, paras. 73, 80). Secondly, she claimed that she had suffered a breach of Article 8 (right to private life), as following the Constitutional Court’s judgment, she was obliged to maintain her pregnancy and give birth to a seriously ill child, with her only alternative being to travel abroad to a private clinic at considerable financial and psychological expense (para. 73). She further argued that the crux of the case was not the right to terminate a pregnancy as such, since this right already existed under the Polish law, according to which she had initially been allowed to schedule an appointment for the termination of her pregnancy, Instead, she noted that what was at issue was the impact of the Constitutional Court’s judgment, as a direct consequence of which, her appointment was cancelled and she could no longer access an abortion on the grounds of foetal abnormalities as no doctor could perform an abortion without risking criminal charges. (paras 80, 89-90). Finally, invoking Articles 6 and 8, the applicant specifically alleged that the restriction had not been ‘prescribed by law’ due to the incorrect and unconstitutional composition of the Constitutional Court and due to the partiality of one judge, who had previously been a member of parliament in favour of restricting abortion laws in Poland (para. 73).

The Court’s Findings

Referencing an earlier judgment’s passage on the jura novit curia principle (Radomilja and Others v. Croatia, para. 114), the Court decided that ‘the applicant’s complaints must be examined solely under Articles 3 and 8’, and, thus, not under Article 6 (M.L. v Poland, para. 74). Examining the State’s inadmissibility objection as to the complaint’s ratione materiae incompatibility with Article 3, the Court considered the decisions of the Human Rights Committee (HRC) which had found that criminalizing access to abortion in situations of fatal foetal abnormality constituted a breach of the right to be free from torture and cruel, inhuman or degrading treatment or punishment (Mellet v. IrelandWhelan v. Ireland), and accepted that in the case of M.L., travelling abroad for an abortion was psychologically arduous (M.L. v Poland, para. 83). However, it concluded that the emotional and mental pain suffered by the applicant did not reach the level of severity of Article 3 and did not, thus, fall within its material scope (paras. 84-85). Hence, the Court upheld the State’s first inadmissibility objection (para 85).

Conversely, it rejected the State’s inadmissibility objection regarding the complaint’s ratione materiae incompatibility with Article 8, noting that ‘the legislation regulating the termination of pregnancy touches upon the sphere of a woman’s private life’ and falls within the scope of the said article (paras. 93-95). Examining the alleged violation of Article 8, the Court stressed that it was unable to accept the State’s view that, as there was no right to abortion under the ECHR, the introduction of more restrictive domestic regulations could not be regarded as an interference with the applicant’s rights (para. 154). Instead, it held that the prohibition of abortion for reasons of health and well-being on the ground of foetal impairment amounts to an interference with the right to respect for private life under Article 8, which includes the right to personal autonomy and to physical and psychological integrity (ibid). It then examined whether this interference was ‘in accordance with the law’.

The Court noted that the Constitutional Court’s judgment was adopted in the process of a constitutional review of the domestic legislation on abortion, initiated by a group of members of parliament who contested its constitutionality, while a draft bill proposing the removal of the option to terminate pregnancies on the grounds of foetal impairment was being discussed in the Sejm (the Lower House of the Polish Parliament) (paras. 164-165). The Court further reiterated that the Convention is a constitutional instrument of European public order and that the States Parties are required to ensure a level of scrutiny of ECHR compliance which, at the very least, preserves the foundations of that public order (para. 166). It further stressed that the rule of law is inherent in all the Articles of the ECHR, which draws its inspiration from that principle (para. 167).  Hence, it is implied that any interference with Article 8 rights must emanate from a body which is itself ‘lawful’ (ibid).

However, as the Court concluded in Xero Flor w Polsce sp. z o.o. v. Poland (paras. 289-290), the fundamental rule applicable to the election of Constitutional Court judges had been breached by the eighth-term Sejm and the President of the Republic, as the eighth‑term Sejm had elected three Constitutional Court judges, even though the respective seats had already been filled by three judges elected by the previous Sejm (para. 171). Consequently, given that the irregularities in the election procedure of the judges compromised the legitimacy of the Constitutional Court’s bench, its ruling fell short of what the rule of law required (para. 174). Thus, the interference with the applicant’s rights was found not to be ‘in accordance with the law’ and the Court did not see a need to examine in detail the remaining shortcomings alleged by the applicant (paras. 174-176).

The Opportunities Missed

The Court observed that the applicant’s grievances essentially concerned the argument that the prohibition in Poland of abortion on the grounds of foetal defects for health and/or well‑being reasons had disproportionately restricted her right to respect for her private life (para. 152). Nonetheless, it effectively maneuvered around assessing this argument by focusing solely on the rule of law crisis in Poland and the fact that the restrictions introduced via the Supreme Court’s judgment were not ‘in accordance with the law’. In this sense, the ECtHR missed the opportunity to acknowledge the incompatibility of the prohibition of access to abortion in cases of foetal impairment for health and/or well‑being reasons, even though many interpretative tools could have enabled it to do so. Instead, the Court chose to avoid taking a clear stance on this politically and/or morally sensitive issue, adopting an evasive attitude and a ‘delineator mode’, as it has done before in similar cases (Yildiz, 86).

Second, the Court took note of the HRC’s decisions whereby the criminalization of access to abortion in situations of foetal impairment was acknowledged as a breach of the right to be free from torture and cruel, inhuman or degrading treatment. However, it did not meaningfully engage with these decisions nor did it substantively consider whether the prohibition of ECHR Article 3 could also be interpreted as meaning that the criminalization of access to abortion in situations of foetal impairment amounts to inhuman or degrading treatment. Instead, the Court persisted on comparing the case of M.L. to the one of the applicants in Tysiąc v. Poland and A, B and C v. Ireland (paras. 84-85).  In both judgements, the applicants had unsuccessfully argued that the State subjected them to treatment that breached Article 3 by failing to make legal abortion accessible when the continuation of the pregnancy would leave the applicant nearly blind (Tysiąc v. Poland, paras 65-66) and by causing them increased feelings of anxiety through their discriminatory and stigmatizing restrictive abortion laws (A, B and C v. Ireland paras 162-164).

However, the method employed by the Court in its earlier assessments of ECHR Article 3-based claims in abortion jurisprudence has been criticized, as it links the fulfilment of ECHR Article 3’s threshold requirement to abortion-seekers’ vulnerability, which it identifies behind factors beyond their control (e.g. the pregnant person’s age or the criminal act which caused the pregnancy), and not from the imposition on them of their unwanted pregnancies through the criminalization of abortions (Jaggar, 354). Indeed, the only two ECtHR judgments on access to abortion, in which a violation of ECHR Article 3 has been acknowledged concerned an adolescent rape survivor, who was humiliated by the authorities while trying to access abortion (P. and S. v Poland, paras 161-169) and an abortion-seeker who was averted by health professionals from finding out about the foetus’ impairment, which would have allowed her to access abortion under the domestic law (R.R. v Poland, paras 153-162). This approach victimises vulnerable abortion-seekers, who have to be presented as blameless, weak and worthy of an abortion, for a violation of the prohibition of inhuman or degrading treatment to be acknowledged (Ryan, 249). Additionally, it constitutes a step back in the progressively objective and non-victimizing jurisprudential assessment of similar claims in abortion-related decisions of other human rights fora, where emphasis is placed on whether the inaccessibility of abortions per se constitutes inhuman or degrading treatment (see: Mellet v. Ireland, para 7.4; Whelan v. Ireland, paras 7.4-7.5; Camila v Peru, para 8.11).

Most of all, in M.L. v Poland the Court reiterated that ‘whenever a woman is pregnant, her private life becomes closely connected with the developing foetus’ and that ‘[a] woman’s right to respect for her private life should be weighed against other competing rights and freedoms invoked, including those of the unborn child’ (para 93). Doing so, the Court persisted on a balancing exercise that is annihilating the selfhood of pregnant persons, whose rights lessen once they become pregnant, as other actors’ interests come into the opposite side of balancing test’s scale (Avolio, 11). This way, the feministisation of the ECtHR’s abortion-related jurisprudence was further delayed, while the reference to the freedoms of the ‘unborn child’ (instead of ‘foetus’) that ‘should be’ taken into account during the balancing exercise (para. 93) echoes the vocabulary used in anti-choice rhetoric (see similar criticism here).

Concluding Remarks

All in all, the judgment did not live up to its expectations, neither the expectations of those who characterised it as ‘dangerous’ due to the ‘possible – and even probable – advance[ment of] a pro-abortion mindset’ by the Court therein, nor of those who expected the Court to take a clear stance on the compatibility of the criminalisation of abortion in cases of foetal impairment with the ECHR. At any rate, the ECtHR’s judgment in M.L. v Poland clarified that the restriction of access to abortion in Poland following the legislative amendments introduced by the Constitutional Court’s judgment is incompatible with the ECHR. It remains to be seen what will push the Court out of its delineator mode and make it confront the core question of when the criminalization of abortion constitutes a violation of the ECHR.

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