Poland: Ban on Abortion Complies with International/European Law
In Poland, a nation-wide grassroots effort has lead to the proposal of bold, new legislation aimed at removing all exceptions to the country’s abortion laws thus protecting children from the moment of conception. The proposed bill is the product of an effort led by Warsaw’s PRO Foundation. Under Poland’s political system, organizers needed to collect 100,000 signatures within three months to place the bill before Parliament. They succeeded, however, in obtaining 600,000 signatures in just two weeks.[1] On Friday, July 1, 2011, the lower house of Poland’s parliament voted 254-151 to support the bill. It now requires two more votes in the lower chamber before it moves to the Senate.[2]
The European Centre for Law and Justice (ECLJ) is of the opinion that though Poland’s ban on abortion contradicts the dominant opinion in the Western world, it would not constitute a breach of International and European law.
Current Polish law provides three exceptions for abortions: abortion is legal until the twelfth week of pregnancy where the pregnancy endangers the mother’s life or health (medical abortion); when prenatal tests or other medical findings indicate a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease (eugenic abortion); or there are strong grounds for believing that the pregnancy resulted from rape or incest.[3] These exceptions are known for being routinely abused, not only in a restrictive way – creating extra difficulties of access to legal abortion – as reported in several cases before the ECHR, but also (and more often) in a broad way, such as aborting children for a non life-threatening disease.
Indeed, Poland has been recently convicted twice before the ECHR for not having a “coherent legal framework” on abortion. In the most recent judgment, R R v Poland (n°. 27617/04), the Court reiterated its finding made previously in Tysi?c v. Poland (n° 5410/03) and in A, B and C v. Ireland that if a State decides to permit abortion, the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” (A, B and C v. Ireland [GC], § 249).
Being condemned for having an incoherent legal framework on abortion, Poland has the duty, under the diplomatic mechanism of follow up of the ECHR rulings, to take positive measures to make its legal framework coherent. The same obligation applies to Ireland following A, B and C v. Ireland. Most observers believed that such measures would lead to a broader liberalisation of abortion; in fact, the current popular initiative may clarify the Polish regulation on abortion in a utmost clear way: striking down all three exceptions, implementing a complete ban on abortion.
The European Centre for Law and Justice is of the opinion that though Poland’s ban on abortion contradicts the dominant opinion in the Western world, it would not constitute a breach of International and European law. Indeed, Poland’s proposed bill, which would protect human life from the moment of conception, is fully compatible with international law, obligations within the European Union (“EU”), and obligations pursuant to the European Convention on Human Rights. Simply put, there is no “right to abortion” or any other right which would include a “right to abortion” in any international or European binding instrument. As a result, Poland has the authority to eventually enact this legislation.
Poland’s proposed law, if voted, would not violate the European Convention of Human Rights (“Convention”). The Convention, as interpreted by the European Court of Human Rights (“ECHR” or “Court”) through its case law, does not guarantee a right to abortion. At the contrary, it guarantees a right to life. In fact, the Grand Chamber of the Court recently affirmed in A., B. and C. v. Ireland that, “Article 8 cannot … be interpreted as conferring a right to abortion.”[4] The Convention does guarantee, however, that member States are obliged to protect life, the right to private life, and the right to conscientious objection. Poland’s attempt to ban abortion does not conflict with any of these rights. In fact, Poland is acting within the recognized authority of member States.
As Article 2 of the Convention makes clear, member States are obligated to protect life. As guarantors of the rights enshrined in the Convention, member States must not only refrain from the intentional and unlawful taking of life, they must take appropriate steps to safeguard the lives of those within their jurisdictions.[5] Though required to ensure these rights, the States must only afford them a minimum standard of protection. If they wish to do so, member States are free to adopt higher standards of respect for these rights. For example, if Poland chooses to afford greater protection to the right to life than other member States—by protecting life from the moment of conception—it is free to do so.[6] Likewise, according to the Court, member States may choose to afford minimum protection to the right to life—as some States have chosen to do by allowing abortions. In this area, a State’s decision holds a wide margin of appreciation.[7]
The Court recognizes, through the margin of appreciation given to the States, that national authorities are better positioned to understand and address the needs of their respective societies. Even if there is a broad consensus among the member States in favor of abortion,[8] it doesn’t restrict the margin of appreciation because there is no consensus on when life begins, and then when the right to life begins. In addition, States margin of appreciation is wider when dealing with ethical and moral issues.
As a result, if a State decides to permit abortion, the margin of appreciation hold by a Stat regarding the circumstances in which an abortion may be permitted is very broad.[9] The Court explicitly recognized this principle in the case R.R. v. Poland holding that “a broad margin of appreciation is accorded to the State as regards the circumstances in which an abortion will be permitted in a State.”[10]
However, if a State—acting within its margin of appreciation—decides to allow for abortions, the Court has held that certain obligations apply. In this regard, in R.R. v. Poland, the Court reaffirmed its previous holding in Tysi?c v. Poland that “once the State, acting within the limits of the margin of appreciation, (…) adopts statutory regulations allowing abortions in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it.”[11] The Court further observed that once a State has permitted abortions, it is “under a positive obligation to create a procedural framework enabling a pregnant woman to exercise her right of access to lawful abortion.”[12] It is important to note that this obligation requiring a procedural framework for access to abortion does not somehow create a separate right to abortion, or a duty for the State to allow abortions. It only attaches if a member State first chooses to allow abortion.
Acknowledging that allowing abortion in exceptional cases can be problematic, Poland’s proposed law attempts to avoid these problems by giving greater protection to the right to life rather than liberalizing abortion. In Poland’s view, this law would better protect both the life of the mother and of the child.
Like the ECHR, the EU law, as well as International law and customary international law, do not create any duty for the State to legalize abortion. Poland’s proposed law does not violate EU law, because EU law does not recognize a right to abortion. Moreover, the EU utterly lacks competence over the area of abortion, that is, member states of the EU have exclusive competence over whether or not abortion is illegal or legal within their territory. The Council of the European Union explicitly recognized the EU’s lack of competence concerning abortion stating that “The European Union treaties have not bestowed on the Community or the Union the competence whereby the Union could regulate on abortion. The Member States thus have the competence to regulate on this and ensure compliance in their territory with the laws that they pass.”[13] As well, a “right to abortion” is not explicitly or implicitly mentioned in any binding U.N. human rights treaty.[14] As the former executive director of the U.N. Population Fund observed, “We, UNFPA, are mandated to consider abortion within the context of public health, but never as a right, as some NGOs do. Abortion is a national issue to be decided by national laws and legislations.”[15]
The European Centre for Law and Justice concludes that Poland’s proposed bill does not violate European and international law, while it clarifies Polish legal framework on abortion.
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[1] Patrick B. Craine, Head of Polish bishops: ‘We must ban abortion totally!,’ Lifesitenews.com (June 29, 2011), http://www.lifesitenews.com/news/head-of-polish-bishops-we-must-ban-abortion-totally?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+LifesitenewscomLatestHeadlines+%28LifeSiteNews.com+Latest+Headlines%29.
[2] Kathleen Gilbert, Historic Polish bill to ban all abortion clears first vote 254-151, Lifesitenews.com (July 1, 2011), http://www.lifesitenews.com/news/poland-bill-to-ban-all-abortion-clears-first-major-vote/.
[3] Section 4(a) of the 1993 Act reads in its relevant part:
“1. An abortion can be carried out only by a physician where
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 suffering from an incurable life-threatening disease;
3) there are strong grounds for believing that the pregnancy is a result of a criminal act.
2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; in cases listed under 3) above, until the end of the twelfth week of pregnancy.
3. In the cases listed under 1) and 2) above the abortion shall be carried out by a physician working in a hospital. …
5. Circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life.”
[4] A., B. and C. v. Ireland, [GC] no. 25579/05 § 214.
[5] See H v. Norway, no. 17004/90, Comm dec. of 19 May 1992; L.C.B. v. UK, judgment of 9th of June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36; Pretty v. UK, no. 2346/02, judgment of 29 April 2002, § 38.
[6] See A., B. and C. v. Ireland, [GC] no. 25579/05 § 249 and R.R. V Poland, no. 27617/04 § 187 (“Once that decision is taken, the legal framework devised for this purpose should be shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention.”).
[7] See R.R. v. Poland, no. 27617/04 §187.
[8] A., B. and C. v. Ireland, [GC] no. 25579/05 § 237 (“Even if most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination notwithstanding an evolutive interpretation of the Convention.”).
[9] See Vo v. France, no. 53924/00 §82 (“The issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere.”); See also A., B. and C. v. Ireland, [GC] no. 25579/05 § 241 (finding that Ireland did not exceed its margin of appreciation by prohibiting abortions for health and well-being reasons);.
[10] R.R. v. Poland, no. 27617/04 § 187.
[11] R.R. v. Poland, no. 27617/04 § 200.
[12] R.R. v. Poland, no. 27617/04 § 200.
[13] Paula Lehtomaki, President-in-Office of the Council, 13 December 2006, replying to an Oral Question (H-0983/06) by Bastiaan Belder, MEP, available at, http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&refererence=20061213&secondRef=ITEM-021&language=EN#3-429.
[14] Neither the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the International Covenant on Economic, Social, and Cultural Rights, nor the Convention on the Elimination of All Forms of Discrimination against Women explicitly or implicitly provides for a so-called “right to abortion.”
[15] Katherine Marshall, Navigating the Turbulent Waters of Religion and Women’s Rights: An Interview with Thoraya Obaid, Huffington Post (January 15, 2011), http://www.huffingtonpost.com/katherine-marshall/courageous-in-navigating-_b_806313.html
