On 13 November 2025, the European Court of Human Rights (‘Court’) delivered its judgment in AR v Poland. An applicant alleged a violation of Article 8 of the ECHR, arguing that domestic law required her to carry a foetus to term even when medical examinations indicated a genetic disorder (trisomy 18) [15].

This resulted from a judgment of the Polish Constitutional Court of 22 October 2020 (ref. K 1/20), which had declared that one of the three exceptions allowing abortion is unconstitutional – namely, a situation where ‘prenatal tests or other medical premises indicate a high probability of a serious and irreversible impairment of the fetus or an incurable life-threatening illness of the fetus’. In light of the approach taken by medical personnel and the Polish Constitutional Court’s ruling, the applicant travelled to the Netherlands, where her pregnancy was terminated in a private clinic on 12 November 2020.

While in AR v Poland the Court rightly condemned the abuses of constitutional amendment power that shaped the applicant’s situation, it ultimately made no distinction between stages of foetal development, nor between genetic conditions and serious foetal anomalies, and did not examine their potential impact on life after birth and the mother’s life trajectory. This demonstrates that a substantial evolution of its case law cannot be expected, given that the Court did not consider foetal anomaly as an aggravating circumstance justifying a right to abortion.

The abuses of constitutional amendment power

In AR v Poland, the Court analyzed the specific grievance raised by the applicant, namely the uncertainty created by the publication of the operative part of the Constitutional Court’s judgment before her scheduled appointment for the termination of pregnancy, which prevented her from obtaining a termination of pregnancy due to fetal anomaly (Article 115). The applicant’s arguments were corroborated by an investigation conducted by the Helsinki Foundation for Human Rights, which confirmed that the Constitutional Court’s ruling of 2020 had already affected access to legal abortion in Poland even before its publication in the Official Gazette [101].

According to the Court, “it was expected that the judgment would be published at any time after it was delivered” [118]. This demonstrates the importance of national regulations and institutional practices. The Court acknowledged the practice of postponing publication. It also emphasized how the “unpublished” judgment affected the applicant and other patients in similar situations in Poland, effectively restricting their ability to obtain an abortion [119], thus setting aside the formal legal effect and focusing on the practical context.

However, the application of the ECHR, here, relies on an interpretation of reproductive rights through a narrow angle. Indeed, the Court focused on the potential effects on rights and emphasized the nature of the Constitutional Court’s ruling, which restricted certain pre-existing rights under domestic law. Indeed, the applicant “found herself in a situation of ambiguity regarding her right to a legal abortion due to foetal anomalies” [119].

Then the Court noted that, following the pronouncement of the judgment but before its publication, some hospitals had already refused to perform abortions in cases of foetal malformation [118]. This demonstrates the public perception of this judgment and its concrete infringement of individual rights. In other words, in the future, when the Court is faced with an unjustified delay in implementing a Constitutional Court judgment expanding rights, it could infer the actual impact on individual rights from the behaviour of public institutions and private actors after the judgment was pronounced but before its “official” publication or entry into force.

The absence of clear and precise legal frameworks in the reduction of abortion rights represents arbitrary state action, which undermines the rule of law and fails to protect those most vulnerable to the changes. The Court found that the ambiguity created by the adoption of an unpublished decision forced the applicant to travel abroad to obtain an abortion, which “undoubtedly caused her significant additional stress” [119]. The Court highlighted several non-pecuniary aspects of the applicant’s situation, which were necessary to assess the extent of the uncertainty created by the Polish Constitutional Court regarding her private life. This will allow for a distinction between situations that do not entail such a direct personal impact because they focus on other rights guaranteed by the ECHR, and those in which the violations of fundamental rights are more serious.

Finally, the examination of the modulation of the temporal effects of the Constitutional Court’s decision in the case of AR v Poland could serve as a reference for potential applicants facing situations where the constitutional courts of their State make decisions directly affecting their rights while manipulating the temporal effects of these decisions in such a way as to restrict the rights of individuals in an unpredictable or abusive manner.

The minimalist choice of procedural obligations under Article 8 ECHR

The reasoning employed by the Court illustrates a minimalism in the choice made between different grounds: to favour violations of procedural rights rather than those of substantive rights. It is regrettable that the Court focused solely on the lack of legal certainty regarding access to a medical procedure to confirm a violation of Article 8 of the ECHR [120 et seq.]. As a reminder, it has always granted States a significant margin of appreciation in this area and has consistently affirmed that the Convention does not imply a right to abortion.