On 14 December 2023, in ML v Poland, the European Court of Human Rights (ECtHR) confirmed that Poland’s 2020 Constitutional Court’s decision, resulting in a near-total abortion ban, violated the right to private and family life under Article 8 of the European Convention on Human Rights (ECHR) [168-176]. During the proceedings, the European Network of National Human Rights Institutions (ENNHRI) submitted a third-party intervention, arguing a troublesome shift towards a regime (with its ‘total ban’ proposal failure) where doctors refuse, or are simply scared, to perform abortion. The use of conscientious objection, combined with the lack of obligation to direct women to alternative clinics and practitioners, has resulted in an assault on women’s fundamental rights as autonomous persons, with them being forced to carry pregnancies threatening their health, mental wellbeing, and even their lives, with victims of the repressive laws dying each year.

The applicant argued that even the wide margin of discretion awarded to States concerning reproductive rights is not unlimited. Furthermore, as tribunals ‘had to meet minimum standards linked to the right to a fair trial’, such as the principle of independence, the Constitutional Court was not ‘established by law’ and it lacked the required impartiality due to its questionable composition [149] – as was argued with reference to Poland’s ‘rule of law’ issues. Article 6 itself, however, was not considered by the Court and was only mentioned regarding the classification of the Constitutional Court as a ‘tribunal’ [163]-[172] for the purposes of assessing the lawfulness of the limitation, and in the dissenting opinion.

The complainant was forced to carry the pregnancy, even though she was legally eligible for abortion due to foetal abnormalities. Article 8 (private and family rights) and Article 3 (prohibition of torture) were argued to have had been violated, with the claimant maintaining that the situation had caused her considerable suffering, distress and humiliation, among others. The Court acknowledged the Human Rights Committee’s jurisprudence and that criminalising access to abortion in situations of fatal foetal abnormality constituted a breach of Article 7 of the International Covenant on Civil and Political Rights (General Comment No. 36) [48]-[51]. Nevertheless, a violation of Article 3 was not found, with the Court arguing that the required severity threshold had not been met [85].

Arguably, finding of a breach of Article 3 seemed reasonable considering the mental distress caused to women forced to carry unwanted pregnancies either threatening their life, as a consequence of rape, or with serious foetal abnormalities. The deprivation of bodily autonomy and inherent human dignity is much more evident in relation to women from deprived backgrounds, when their own legal system fails them in the most crucial of moments and they lack the resources to seek help elsewhere. One must, therefore, consider vulnerable groups and the effect of the current regime beyond mere black letter law, but with practical obstacles and systemically oppressive behaviours towards those seeking abortion as well as performing it. As exemplified by suicide cases in Ireland or El Salvador among rape victims denied abortion, the court’s finding that the mental effect on women to be not severe enough to meet the Article 3 threshold seems questionable.

Perhaps, if future cases emerge with ‘vulnerable group’ applicants, the Court will elaborate on existing norms and protection standards concerning reproductive rights. It is submitted, however, that women have been treated and classified as a particularly vulnerable group in need of special protection, which has arguably not been sufficiently accounted for by the Court. This is in addition to the lack of recognition of the gravity of mental effect on women in such cases, by dismissing the claim under Article 3 and not providing any obiter commentary on its potential relevance to other, perhaps ‘more severe’ cases of unlawful denial of one’s reproductive rights.

Even though the applicant submitted that the limitation was not ‘necessary in a democratic society’, the Court focused on whether it was ‘prescribed by law’ [132],[175], rather than producing a much-desired judgment on proportionality, considering the margin of appreciation, cultural relativism, and subsidiarity, in face of restrictive abortion laws. By stating that Article 8 cannot be interpreted as granting a universal right to access to abortion [87],[94], the ECtHR, once again, abstained from setting a European norm. While the applicant submitted that the restrictions imposed by the Constitutional Court were not ‘necessary in a democratic society’, the ECtHR stated that ‘a decision on abortion was of a very sensitive, intimate and private nature, and each time such a decision was made it was made for different, complicated, personal and particular reasons, and could not be subject to a uniform official judgment delivered by the courts’ [133].

The Court’s statement that Article 8 cannot be interpreted as granting a universal abortion right is a line of reasoning which is frequently used by right-wing groups to mobilise the legal system against reproductive rights. Thus, while overall a welcome development, the case does not seem to be a ‘landmark’ in shifting the existing reproductive rights’ standards recognised under the ECHR regime, nor does it introduce any new and promising regional norms in that regard.

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