Access to Legal Abortion: P. and S. v. Poland

Background  
A 14-year-old girl was raped, which resulted in her becoming pregnant. Her quest for a lawful abortion, which is legal under Polish law, led to a cumbersome process for the victim. Despite an authorisation by the prosecutor, she was refused abortion at one hospital which did not hesitate to leak her story to the press and turn her into a target of anti-abortion activists. Beside not being provided with health-care-related guidance, she, together with her mother, was subjected to a considerable amount of pressure due to her decision about ending the pregnancy. In addition, she was taken to a juvenile shelter by court order and kept there for 10 days. To be able to end the pregnancy, she was only admitted to a hospital situated 500 kilometres away from her home. 

Strasbourg Court’s Judgment 
The Court found that, even though abortion was legal under Polish law, the victim’s access to abortion was hampered because the authorities did not comply with their obligations to enforce it in practical terms. The treatment of the 14-year-old girl had been degrading and inhuman taking into consideration that she was subjected to a manipulative discourse by the medical staff and was forced to meet with a priest with an object of dissuading her from terminating the pregnancy. In addition, it was understood that she was kept in detention by mere reason of preventing abortion and separating her from family. Moreover, the hospital, by issuing a press release about her pregnancy, violated the victim’s right to privacy of medical data. Finally, the Court found that Poland failed to provide the victim with a convenient procedure to be able to decide about her pregnancy along with her mother in a comfortable environment. 

Status of Implementation
It has been 7 years since the judgment was made final and practical, as well as legal, deficits remain outstanding as made clear by NGOs closely following the status of implementation. During a briefing held by EIN, Europe Center for Reproductive Rights, the Federation for Women and Family Planning pointed out that the on-going non-compliance by the Polish authorities remains a barrier to women and adolescents seeking an abortion. Thanks to submissions by NGOs and Polish Commissioner for Human Rights, the Committee of Ministers of the Council of Europe has been made aware that the availability of access to lawful abortion faces considerable regional disparities and there is an alarming tendency of refusals to provide lawful abortion on grounds of conscience. The authorities have failed to present up-to-date statistical data on such issues. Moreover, the Polish government has still not taken concrete action to ensure that there a monitoring mechanism for failures to refer women to an alternative health-care facility for abortion-related services, as well as sanctions in case of failure.  Despite a CM decision dating back to September 2018 that calls on the authorities to adopt a viable system for effective access to legal abortion, authorities are yet to put in place tangible measures to address systemic barriers and the lack of remedial and enforcement mechanisms in case of a lack of access to legal reproductive health services. 

Useful links to P. and S. v. Poland (Application No 57375/08) 
Judgment of the European Court of Human Rights

Case summary on Hudoc-EXEC