As discussed in Part 1 of this blog, the European Court of Human Rights did not find a violation of Article 3 of the ECHR (prohibition against torture) in the ML v Poland case. There has since been a debate concerning the Court’s reluctance to interfere with the existing margin of appreciation afforded to States by recognising a breach of Article 3. The contentious area should be looked at in light of potential implications of a decision to the contrary, especially bearing in mind the absolute character of Article 3 as well as customary international law related to it. It was argued by Judge Jelić and two other judges, that the case ‘is illustrative of shortcomings in Polish legislation and practice regarding abortion which raise serious issues of personal insecurity and legal uncertainty for vulnerable women and concerns as to the protection of their dignity when claiming the right to abortion under Polish law’ (Concurring Opinion [1]). Interestingly, drawing one’s attention to the concept of vulnerability, the judges prompt members of the civic polity and relevant pressure groups to once again reflect on the unique need to ensure special and additional protections afforded to selected groups in order to ensure effective human rights’ protections.

In line with the proposed arguments concerning the inadequate test of the severity threshold applied to women’s lived experiences and the failure to adopt a more holistic view of the mental effect, the judges made several key observations which could be linked to one’s reflection of what is a truly ‘just’ and conscionable approach to the experiences of women subject to oppressive reproductive rights’ regimes in European States. In States such as Poland, the restrictive law is only a small part of a bigger problem of practical obstacles and the reality of stigmatisation, inaccessibility, and victimisation of abortion seekers as well as its providers. It is argued that exercising reproductive rights means women feeling safe within a system that concerns itself with their physical and mental health – putting it above the ‘moral’, religious, and culturally relative policy arguments still defining abortion laws in countries such as Poland. Unsurprisingly, there is a continuously growing number of scholars providing a critical commentary on the use of the margin and cultural relativism by selected States.

Furthermore, the lack of effective procedural safeguards at the national level was also noted as worrying even within the existing reproductive rights framework with limited circumstances where the procedure is legally permissible. Judge Jelić and others have pointed to the UNCRC case of Mellet v Ireland (that she took part in deciding) where the importance ‘for a pregnant woman seeking an abortion, of terminating her pregnancy “in the familiar environment of her own country and under the care of the health professionals whom she knew and trusted” (s. 7.4)’ was highlighted [6].

Triggering the questions of whether we should now turn our focus to reproductive equality and health rather than merely culturally contingent women’s rights, it seems that Article 3 remains relevant to the ECtHR only in the most extreme cases, as it remains cautious about the States’ discretionary powers, Linking to this, it is important to note a curious absence of Article 14 ECHR utilisation in reproductive rights cases which could arguably be used jointly with Article 8 or other substantive rights to highlight the ‘indirect discrimination’ that women are often subject to due to their unique position, as equality does not always mean equity. Therefore, it is argued that closer attention should be paid to the much-needed differentiation between applying the Article 3 ‘severity threshold’ test in cases involving reproductive rights with the uniquely vulnerable position of women, and other matters.

It is high time one questioned the utter disregard for the issue of women being deprived of their agency, having their bodies governed by laws entrenched in hundreds of years of inequality, subordination and legal irrelevance within the predominantly male-created structures of the contemporary legal systems. The systemic vulnerability of women seems to only become a somewhat relevant consideration for those like Judge Jelić or otherwise, only in most horrific case law before the Court. How does one demonstrate and evidence suffering that is ‘enough’ to meet the severity requirement? Moreover, can the test of this lived experience of many women ever be truly fairly set by those who could never experience such suffering and dilemmas themselves? Womanhood is a unique identity which while intersecting with others, defines one’s specific experiences of discrimination, gender violence, health issues, and suffering that only a woman can understand. When looking at the ML case, in reflection of the general ECtHR jurisprudence on Article 3, one cannot help but wonder: are these abortion cases and women’s suffering really not ‘severe’ enough? And, in any event, who should be the one to decide on such…

Author’s Note: It has to be noted that at the time of publication, there are pending system changes and expected improvements upon proposals from the newly elected executive in Poland.