Access to legal abortion in Poland – reforms and action needed

Introduction

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. [1] 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. However, after more than five years since the P. and S. v. Poland decision, full implementation of the judgement is still lacking. As a result, the case is still being supervised by the Committee of Ministers under its enhanced monitoring procedure. This indicates that access to legal abortion in Poland is still more a “law on the books” rather than a “law in action.”

Photo by Aiden Frazier on Unsplash

The legal framework

Access to legal abortion in Poland is framed narrowly. According to Article 4(a) of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), abortion is legal only when:

1)     pregnancy endangers the mother’s life or health;

2)     prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life-threatening ailment (as such, an abortion can be performed until the foetus is capable of surviving outside the mother’s body);

3)     there are strong grounds for believing that the pregnancy is the result of a criminal act (in such an event, an abortion may be performed only until the end of the 12th week of pregnancy).

It is worth noting that Parliament adopted an amendment in 1996 which liberalized access to abortion. According to the provision, abortion was deemed legal if a pregnant woman was in a difficult personal situation or was living in difficult conditions. However, the Constitutional Tribunal ruled in 1997 that the new provision violated the constitutional right to life.[2]

Women who try to exercise their right to legal abortion in Poland also face many practical obstacles. For instance, the case of Tysiąc v. Poland (application no. 5410/03) concerned a woman who tried to have an abortion because the pregnancy threatened her health. However, the respective doctors refused to issue the necessary certificate and the law at that time did not provide any legal remedies against their decision. After the ECtHR issued its judgment finding a violation of Article 8 of the European Convention of Human Rights, Parliament enacted a law which gave patients the possibility to submit an objection against a doctor’s refusal to perform an abortion. As described below, however, the practical functioning of this procedure is far from perfect.

Another practical obstacle in accessing legal abortion is the so-called “conscience clause.” Polish law entitles doctors to refuse to perform abortions if it contradicts their moral or religious values. Until 2015 a physician who invoked this clause had to indicate an alternative way of obtaining an abortion from another doctor or different medical facility. However, the Constitutional Tribunal ruled in 2015 that such a requirement disproportionately restricted the doctor’s freedom of conscience and so the law was repealed.[3] As a consequence, many women face serious difficulties in accessing information to obtain an abortion.

Summary of the case

The P. and S. v. Poland case concerned a 14-year old girl who was denied an abortion by consecutive doctors even though her pregnancy was the result of a rape. The girl and her mother were provided with incorrect information from three hospitals about the conditions for lawful termination of the pregnancy. Moreover, the respective doctors invoked the “conscience clause” and, contrary to the law then in force, did not indicate an alternative way to obtain the abortion.

In its judgment the ECtHR found violations of Articles 3, 5 and 8 of the Convention. It underlined that “States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”[4] According to the ECtHR, “effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent (...). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time”.[5]

The Government’s response

The Government submitted its Action Report to the Committee of Ministers in November 2013.[6] It argued that the existing law sufficiently ensured the practical access to legal abortion and as a result there was no need to adopt any new general measures. In particular, the Government reiterated that physicians “were legally obligated to inform the patient about his/her real options of obtaining abortion from another doctor or [other] medical facility and to record and provide grounds for this fact in medical documentation.”[7] Doctors who failed to fulfil this obligation could face disciplinary sanctions.

The Committee of Ministers’ decision

The Committee of Ministers adopted a decision in September 2017 regarding the execution of the judgment in the case of P. and S. v. Poland.[8] It underlined that the general measures adopted by the Government “do not appear to address adequately the sources of violations” and did not seem to protect women effectively from “the improper behaviour of the medical staff.”

The Committee recommended that the national authorities focus more on ensuring that women seeking lawful abortion would receive sufficient information as to how to obtain an abortion and what steps to take if they face any obstacles. Moreover, the Committee “invited the authorities to provide information on how, when a doctor invokes the conscience clause, they will ensure that women seeking lawful abortion receive full and credible information about accessing the health care services to which they are entitled.” In this regard, the Government was asked to provide more detailed information as to the practice of imposing contractual penalties on the hospitals which fail to comply. More broadly, the Government should also provide general information on lawful abortion in the Polish healthcare system.

Implementation of the judgment

As stated above, the Government’s position in the case of P. and S. v. Poland is that current laws are sufficient to allow for access to legal abortion and thus there is no need to adopt any new general measures. However, quite contrary, current Polish law does not guarantee that similar violations of the Convention will not happen in future. Moreover, recent developments in law and practice may result in impeding the access to legal abortion even further.

In its communication submitted to the Committee of Ministers on 1 September 2017, the Helsinki Foundation for Human Rights indicated that the law in force does not provide women with effective legal remedies which could be used to enforce the right to legal abortion. [9] While women may file an objection to the Medical Board against a physician’s opinion or certificate stating that the conditions for legal abortion have not been met, the procedure is too vague and imprecise. For instance, it is not clear whether an objection can be filed if the physician in question refuses to issue a written opinion or issues it only orally. Moreover, as the current procedure stands, there are no guarantees that the Medical Board will issue its decision before the expiration of the deadline for legal abortion.

The law also does not protect patients from any abuse of the “conscience clause.” As already mentioned, after the 2015 judgment of the Constitutional Tribunal, physicians who refuse to perform an abortion are no longer required to indicate another doctor or medical entity where such service may be obtained. At the same time, the law does clearly define as to who should provide such information to a patient. Lack of effective safeguards in this regard is even more worrisome taking into account the huge number of doctors who make use of the “conscience clause.” For example, media reported in 2016 that there were no hospitals which would perform legal abortion services in the province of Podkarpackie in south-eastern Poland.[10] As a result, the Patients’ Rights Ombudsman recommended that hospitals in which all doctors invoked the “conscience clause” should subcontract a medical entity to perform the service.[11] Unfortunately, such legislative changes have not to date been adopted or even drafted.

In theory, the unclear and insufficient legal framework could be supplemented by reasonable internal procedures adopted by hospitals. Such regulations could, for example, specify bodies obliged to inform patients about the conditions for access to legal abortion or define what steps should be taken in cases of refusal by physicians on the grounds of the “conscience clause.” Unfortunately, the majority of hospitals have to date not adopted such procedures. According to a report by the Federation for Women and Family Planning,[12] 66 per cent of the hospitals examined did not have any procedures regulating the access to abortion.[13] Moreover, many of those which had adopted such regulations also introduced therein limitations to the right to abortion not provided for in the law (for example, they added a requirement to obtain the opinion of two doctors or to obtain the opinion of a medical council).[14]

The above-mentioned legal flaws can be addressed only to a limited extent by the Patients’ Rights Ombudsman. This organ may inform patients about their rights and contribute to the identification and elimination of illegal practices by medical entities. However, it cannot replace the effective and speedy procedure of objection against a doctor’s refusal. The Ombudsman also cannot quash the negative decision nor force the hospital to perform an abortion.

Conclusion

There are currently no indications that the Government will undertake requisite reforms and action soon to fully implement the judgment in the case of P. and S. v. Poland. On the contrary, Parliament is now working on a draft civil law which aims to eliminate the possibility of obtaining an abortion on the grounds of serious damage to the foetus.[15] Moreover, in June 2017, a group of Members of Parliament submitted a motion to the Constitutional Tribunal with the aim of securing a ruling that this condition of legal abortion violates the Constitution.[16] It is therefore possible that the conditions for legal abortion could be narrowed down even further in the future. While the P. and S. v. Poland case does not concern the right to abortion per se, these actions could have a negative impact on access to legal abortion as well. The same could also be said as a result of public statements by the former as well as current Minister of Health, both of which have expressed their views against abortion.[17]

[1] See also Tysiąc v. Poland, 20 March 2007, app. no. 5410/03; and R.R. v. Poland, 26 May 2011, app. no. 27617/04.

[2] Judgment of the Constitutional Tribunal of 28 May 1997, ref. no. K 26/96.

[3] Judgment of the Constitutional Tribunal of 7 October 2015, ref. no. K 12/14.

[4] P. and S. v. Poland, § 106.

[5] Ibid., § 111.

[6] Action Report. Information about the measures to comply with the judgment in the case of P. and S. v. Poland, 29 November 2013, https://rm.coe.int/16804a9186.

[7] Ibid., p. 10.

[8] http://hudoc.exec.coe.int/eng?i=004-20614

[9] Communication from the Helsinki Foundation for Human Rights concerning execution of ECtHR judgment in cases: P. and S. v. Poland (application no. 57375/08), R. R. against Poland (application no. 2761/04), Tysiąc against Poland (application no. 5410/03), 1 September 2017, https://rm.coe.int/16807438d7.

[10] See e.g. A. Gorczyca, Legalna aborcja? Nie na Podkarpaciu, 11 May 2016, http://rzeszow.wyborcza.pl/rzeszow/1,34962,20050830,legalna-aborcja-nie-na-podkarpaciu.html

[11] Letter of the Patients’ Rights Ombudsman to the Human Rights Commissioner, 11 August 2016, https://www.rpo.gov.pl/sites/default/files/RPP%20o%20prawie%20do%20legalnej%20aborcji%20na%20Podkarpaciu%2C%20sierpie%C5%84%202016.pdf

[12] A. Chełstowska, M. Dziewanowska, K. Więckiewicz, „Dzień dobry, chcę przerwać ciążę…” O procedurach dostępu do legalnej aborcji w polskich szpitalach. Raport z Monitoringu, Federacja na rzecz Kobiet i Planowania Rodziny, Warszawa 2016, http://federa.org.pl/wp-content/uploads/2017/06/RAPORT-SZPITALE-FEDERACJA.pdf

[13] Ibid., p. 13.

[14] Ibid., pp. 18-20.

[15] Draft law available at: http://orka.sejm.gov.pl/Druki8ka.nsf/0/F18A213C98C5BDC0C125820B005793D9/%24File/2146.pdf

[16] Motion available at: http://ipo.trybunal.gov.pl/ipo/dok?dok=F1326803962%2FK_13_17_wns_2017_06_22_ADO.pdf

[17] See e.g. A.J. Dudek, Nowy minister zdrowia antykoncepcję i in vitro uważa za "pogwałcenie Dekalogu" i "odrzucenie samego Stwórcy”, 10 January 2018, http://www.wysokieobcasy.pl/wysokie-obcasy/7,115167,22878188,nowy-minister-zdrowia-antykoncepcje-i-in-vitro-uwaza-za-pogwalcenie.html?disableRedirects=true; A. Siek, Min. Radziwiłł o aborcji: Katastrofa cywilizacyjna. Obowiązujące przepisy budzą niepokój, 21 March 2016, http://www.tokfm.pl/Tokfm/1,103454,19798246,min-radziwill-o-aborcji-katastrofa-cywilizacyjna-obowiazujace.html