Still practical difficulties to exercise the right to legal abortion in Poland
/P. and S. v Poland (Application No 57375/08)
Briefed on: 26 February 2021, 21 February 2020, on 25 February 2019 and 10 September 2018
Photo by Aiden Frazier on Unsplash
The briefing held in February 2021 and February 2020 also dealt with the Tysiac v Poland (Application Nr 5410/03) and R.R. v Poland (Application Nr 27617/04) cases, which concern challenges linked to access lawful abortion in Poland
Documents from the 2021 briefing:
Power point by Jarosław Jagura, Helsinki Foundation for Human Rights
Rule 9.2 submission by the Helsinki Foundation for Human Rights (February 2021)
Documents from the 2020 briefing:
Power point presentation by Adriana Lamačková, Senior Legal Consultant for Europe, Centre for Reproductive Rights, and Kamila Ferenc from the Federation for Women and Family Planning
Main recommendations from these organisations on the cases
Rule 9.2 submission by the Centre for Reproductive Rights and the Federation for Women and Family Planning, January 2020
Documents from the 2019 briefing:
Memo by Katrine Thomassen, Senior Legal Adviser for Europe at the Centre for Reproductive Rights, and Kamila Ferenc, lawyer at the Federation for Women and Family Planning in Poland.
Power point presentation by Ms Thomassen and Ms Ferenc
Most recent communication from the Polish authorities on the case
rule 9.2. submission (February 2019) by the Centre for Reproductive Rights and Federation for Women and Family Planning in Poland
Documents from the 2018 briefing:
Memo by Ms Katarzyna Wisniewska, Coordinator of the Strategic Litigation Programme at the Helsinki Foundation for Human Rights (Poland)
Latest Rule 9.2. communication by the Helsinki Foundation for Human Rights on August 2018
Latest communication by the authorities (June 2018) on this case
Final judgment of the European Court of Human Rights (30/1/2013)
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. 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.
An update on the case was delivered in September 2018 by Ms Katarzyna Wisniewska, Coordinator of the Strategic Litigation Programme at the Helsinki Foundation for Human Rights (Poland), and in February 2019 by Katrine Thomasen, Senior Legal Adviser for Europe at the Centre for Reproductive Rights, and Kamila Ferenc, lawyer at the Federation for Women and Family Planning in Poland.
In February 2020, Ms Adriana Lamačková, Senior Legal Consultant for Europe, Centre for Reproductive Rights, and Kamila Ferenc from the Federation for Women and Family Planning, briefed about the P. and S. v Poland case, but also about 2 cases which concern access to legal abortion in Poland: Tysiac v Poland (Application Nr 5410/03) and R.R. v Poland (Application Nr 27617/04).
The three judgments became final in 2007, 2011, and 2013 respectively, and more than 12 years have now passed since the first of these landmark judgments. Yet effective measures to give effect to these judgments have still not been adopted by the Polish authorities.
The three judgments each address distinct but overlapping issues regarding the ongoing and serious failures of the Polish authorities to ensure that access to legal abortion in Poland becomes a practical reality for women and adolescent girls and is not merely a theoretical entitlement. Although each of these three judgements mandate some of the same implementation measures, they also each involve distinct and separate issues which can only be addressed by specific implementation measures.
In light of this situation, Ms Lamačková and Ms Ferenc invited the Committee of Ministers to ask the Polish authorities to:
Establish effective and timely procedure for women to challenge and resolve disagreements with and between doctors regarding their entitlement to legal abortion care and to exercise their rights in this regard. This mechanism must ensure: a decision within no more than 3 days; the right of judicial appeal; the issuance of enforceable orders mandating a particular health care facility or medical provider to provide the care sought.
Adopt effective measures to ensure that conscience-based refusals by medical professionals do not undermine or delay women’s access to legal abortion services or prenatal testing.
Strengthen enforcement procedures and measures, including by ensuring appropriate sanctions and disciplinary actions against health facilities and professionals for any failures to comply with obligations to provide legal reproductive health services and information
Effectively monitor compliance by all health care facilities with their contractual obligations to the National Health Fund and actively enforce these contracts, including by sanctioning breaches by health care institutions and medical providers.
Adopt effective measures to guarantee women access to reliable information on the conditions and effective procedures for their access to legal abortion care, such as guidelines to all medical facilities and professionals providing reproductive health care.
Adopt effective measures to ensure that full and reliable information is provided to women and adolescent girls enabling them to take informed decisions about their pregnancy.
Adopt effective measures to enhance protection of patient data confidentiality.
Introduce targeted measures to ensure that the needs of adolescents who are seeking legal abortion services are met and that they are treated with respect and due consideration for their vulnerability.