The Erosion of Women’s Rights and the ECtHR’s Judgment in A.R. v. Poland

Reproductive rights have become an increasingly central dimension of the contemporary human rights landscape, shaping the evolution of both general human rights doctrine and the specific trajectory of women’s rights. They function not only as indicators of progressive legal development but also as sensitive barometers of broader political shifts. Across the world, resurgent right-wing movements have sought to curb women’s autonomy as part of a wider backlash against liberal democratic norms—placing reproductive rights among the earliest and most vulnerable targets. The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization epitomizes this trend, demonstrating how swiftly long-standing protections can be dismantled.

Within this global landscape, regional human rights courts have assumed a crucial role. They are repeatedly called upon to interpret broadly phrased human rights through a gender-sensitive lens and to assess whether state restrictions on reproductive rights comply with human rights standards. Last year, for instance, the Inter-American Court of Human Rights addressed the issue of abortion in Beatriz et al. v. El Salvador. Now, the European Court of Human Rights (ECtHR) has revisited the question in its recent judgment in A.R. v. Poland, a case arising from Poland’s increasingly restrictive abortion regime and the legal uncertainty surrounding its implementation.

This blog post examines the judgment as part of this wider transnational struggle over reproductive autonomy. While the Court rightly condemned the rule-of-law deficiencies that shaped the applicant’s situation, it ultimately stopped short of engaging with the substantive contours of abortion rights under the Convention. In doing so, the ECtHR missed an important opportunity to articulate stronger protection for reproductive autonomy at a moment when women’s rights in Europe and worldwide are facing unprecedented pressure.

Facts and Background

The case concerned a woman who became pregnant unintentionally and learned during the third month of pregnancy that the fetus had Trisomy 18, a severe chromosomal anomaly associated with extremely low life expectancy. Around the same time, Poland’s Constitutional Tribunal issued a judgment (ref. K 1/20, cf. Ewa Łętowska) declaring unconstitutional the statutory provision that had allowed abortion in cases of fetal abnormality. Compounding the situation, the Tribunal’s bench included judges appointed in a manner that had already raised serious concerns about the body’s legitimacy.

Under Polish law, decisions of the Constitutional Tribunal become binding only once they are officially published. In this case, however, publication—and thus the entry into force of the ruling—was delayed for nearly four months. During this period, profound legal uncertainty prevailed as to whether abortions on grounds of fetal abnormalities were still permissible. The COVID-19 pandemic further complicated matters by casting doubt on travel possibilities and border closures. Fearing that the ruling might enter into force at any moment and make a legal abortion impossible, the applicant travelled alone to the Netherlands, where she obtained the procedure at her own expense.

Central Legal Issues

The ECtHR examined whether Poland had violated Article 3 ECHR (prohibition of torture or inhuman or degrading treatment) and/or Article 8 ECHR (right to respect for private life). 

Several admissibility questions had to be addressed at the outset. The government first argued that Article 8 was not applicable, as the Convention contains no explicit right to abortion (para. 39). The Court, referring to its established case law, reaffirmed that Article 8 has a broad scope and can indeed apply to state regulation of abortion (paras. 43–44). Poland also contended that the application amounted to an impermissible actio popularis, as the applicant could theoretically still have obtained an abortion in Poland before the ruling’s publication and was therefore not a “victim” of any rights violation (para. 46). The Court rejected this argument, emphasizing that the prolonged delay between the Tribunal’s decision and its publication created significant and objectively verifiable uncertainty. Because this forced the applicant to incur the emotional and financial burden of obtaining an abortion abroad, she was directly and personally affected (paras. 49–51).

On the merits, the Court dismissed the Article 3 claim in brief terms, finding that the applicant had not sufficiently substantiated the severity of suffering required to meet the threshold of Article 3, even though it acknowledged the emotional difficulty of travelling abroad for a termination (para. 36).

It then turned to the question of justification under Article 8(2), setting out the familiar two-step structure: whether the interference was “in accordance with the law” and whether it pursued a legitimate aim and was “necessary in a democratic society.” In practice, however, the Court confined its analysis almost exclusively to the first limb. It highlighted systemic deficiencies previously identified in M.L. v. Poland, noting that the Constitutional Tribunal’s composition was incompatible with the requirement of a “tribunal established by law” (paras. 114–115). It further underscored that the delayed publication of the Tribunal’s ruling generated a profound lack of foreseeability and legal certainty as to the availability of abortion services. Because the interference was neither lawful nor foreseeable, it failed the initial requirement of Article 8(2) (paras. 115–119). Consequently, the Court found a violation of Article 8 (para. 120).

Assessment of the Judgment

The Court’s finding of a violation of Article 8 is undoubtedly welcome. It acknowledges the real and measurable impact of legal uncertainty on the applicant’s autonomy and holds the state accountable for the consequences of its own institutional dysfunction. The judgment also sharply criticizes the erosion of judicial independence in Poland and its tangible effects on women’s rights. Moreover, the Court reaffirms its earlier jurisprudence recognizing the applicability of Article 8 to abortion regulation.

Yet the judgment also leaves substantial feminist concerns unaddressed.

First, the Court declined to engage meaningfully with Article 3. International human rights bodies have increasingly recognized that denying or severely restricting access to abortion can amount to inhuman or degrading treatment (cf. HRC, Mellet v. Ireland, paras. 7.3–7.7). Given that Trisomy 18 is associated with extremely limited life expectancy—only around 13% of affected children survive their first year—this case arguably fell squarely within this trend. Instead of exploring this dimension, the Court disposed of the Article 3 claim based on insufficient substantiation.

Second, the Court avoided examining the necessity of the interference under Article 8(2). Rather than addressing whether restricting abortion in cases of severe fetal abnormalities serves any legitimate aim in a democratic society, the Court confined itself to procedural unlawfulness: the Tribunal’s improper composition and the delayed publication. This allowed the Court to resolve the case without addressing the increasingly prominent international consensus that access to abortion in cases of non-viable pregnancies, threats to the pregnant person’s life or health, or pregnancies resulting from rape or incest is a minimum requirement of reproductive rights (cf. HRC, General Comment No. 36, Article 6: Right to Life, para. 8)

Both omissions are understandable from an institutional standpoint—the Court is not obliged to answer questions that are not properly argued by the applicant, and its structured proportionality analysis does require first determining whether the interference is “in accordance with the law”. Still, these choices have the effect of sidestepping deeper substantive questions about reproductive autonomy. In doing so, the Court passed up an opportunity to articulate a more robust vision of women’s rights within the Convention system.

Outlook and Conclusion

The ECtHR’s approach to abortion regulation thus remains cautious. In an era of intensifying attacks on reproductive rights, human rights courts have both the authority and the responsibility to provide principled guidance and to shield fundamental rights from political backlash. Yet they also face the real risk that assertive judgments might trigger withdrawal threats or exits, as evidenced by the letter of nine states to the Council of Europe.

Against this backdrop, A.R. v. Poland represents both progress and limitation: a meaningful condemnation of the rule-of-law crisis in Poland and a recognition of the applicant’s rights, but also a missed opportunity to advance a more substantive feminist conception of reproductive autonomy. Once again, reproductive rights prove to be a barometer of broader societal transformation. They challenge human rights courts—ECtHR included—to strike a delicate balance: resisting regressive trends without provoking the kind of political backlash that could further erode women’s rights. How the Court and other human rights bodies navigate this tension in the years to come will be crucial in determining the resilience of the hard-won gains of the past decades.