In October, the European Court of Human Rights issued a groundbreaking decision in P. and S. v. Poland, a case concerning a teenager who became pregnant as a result of rape and was humiliated, harassed, manipulated, and even deprived of her liberty in her quest for a legal abortion. In its decision, the Court affirmed teenagers’ right to reproductive autonomy and directed the Polish government to regulate and monitor the widespread use of conscientious objection in the reproductive health care field.
The decision clearly illustrates how reproductive rights are human rights. More specifically, it recognizes how some reproductive rights violations involve tremendous physical and psychological pain rising to the level of inhuman and degrading treatment as defined and prohibited under international law. The Court’s decision is critical for the development of human rights jurisprudence on the right to dignity and autonomy, in particular in the field of women’s rights. Needless to say, those of us who for years worked hard on the case are overjoyed, and we congratulate P. and S. for their ceaseless and courageous fight for justice.
But now what? Human rights law has taken an important step forward, but what will happen in Poland? The Polish government will likely pay the court-ordered damages to the mother and daughter whose rights were breached. That is the easy part. But what about structural changes—political and policy reforms—to ensure that similar violations won’t happen again? More specifically, will the Polish government heed the Court’s order and establish a system that would make legal abortion available and accessible for women and adolescents, while guaranteeing that their dignity, privacy, and liberty will be respected and protected in the process?
This is the more tricky part. The track record of the Polish government on addressing systemic reproductive health violations is, unfortunately, not great. The European Court of Human Rights has previously issued two abortion-related cases against Poland: Tysiąc v. Poland in 2007 and R.R. v. Poland in 2011. In both, it criticized Poland’s failure to make legal reproductive health services—including abortion—available in practice for women, and in both cases it ruled that measures had to be taken to remedy the flaws.
In 2008, the Polish parliament passed a new law on patients’ rights, in part as a response to the Tysiąc decision. The law establishes a mechanism that is supposed to allow a woman to challenge a doctor’s decision when she has been denied an abortion. However, Polish women tell us that for many reasons they would not use this mechanism as in practice it is an inadequate and inappropriate tool to address the denial of legal abortion. The process has the potential for unacceptable delays, humiliating treatment, and the continued denial of care—while prospects for success for the woman claiming her rights are negligible.
In the R.R. decision, the Court ordered Poland for the first time to make sure that the use of conscientious objection in the reproductive health care field will not stand in the way of women’s access to legal medical services. Polish law provides for certain safeguards, such as mandatory referral when a doctor refuses to provide services, but doctors and state officials often completely disregard these provisions in practice. Earlier this year, the Ministry of Health sent a letter to all doctors explaining how the conscientious objection provisions should be applied. However, there have been no monitoring activities, nor any other follow up, so the situation of widespread and unregulated use of conscientious objection remains the same.
Outside of these two insufficient actions, the Polish government has done nothing more to implement the structural aspects of the Court’s earlier judgments.
The current political climate in Poland is simply not encouraging. At the time the P. and S. decision was issued there were intense debates regarding abortion in the country. Two draft laws on this topic had recently been introduced in the Parliament: one pro-choice bill aimed at enhancing sexual and reproductive health rights, including abortion, broadly, and another bill that sought to ban abortion in the case of fetal impairment. The former was rejected in the first reading, and the latter was referred for further parliamentary work in committees. The parliamentary debates were aggressive, focused on fetal rights, and completely disregarded any consideration of women’s rights. The notion that reproductive rights are human rights was nowhere to be found. In the end, the restrictive bill was also rejected, but the fact that it was considered, whereas the rights-promoting bill was outright dismissed, illustrates the difficult political climate in which Polish pro-choice advocates operate.
Public opinion is divided in Poland, but surveys show that society by and large supports the right to terminate pregnancies under the circumstances defined in the current law (when the woman’s health or life is under threat, in cases of serious fetal anomalies, or when the pregnancy is the result of an illegal act). The public has not reacted well to recurring violations to access abortion on these grounds. At the same time, reactionary forces continue to manipulate facts and attempt to smear women who speak out about their experiences. For example, in the aftermath of P. and S., conservative politicians and media questioned whether the teen indeed had had a legal right to abortion, and undermined the severity of suffering she had been subjected to. Anti-choice groups, while not in majority in Poland, are louder and more aggressive than the pro-choice movement and therefore their message comes across disproportionately stronger than ours. This imbalance is a significant obstacle to substantive change.
Can the Polish courts be an agent for change? Will judges take the precedents that come out of the European Court of Human Rights seriously and ensure their decisions respect human rights law? Knowledge about the Court’s case law, or international law in general, is sparse among judges in Poland. Many also lack the courage to apply what generally is seen as “foreign” legal standards, as Polish courts tend to stress the independence of domestic law. As a result, the judiciary is usually not a driving force behind major policy changes. And in relation to issues on reproductive health we have every reason to expect judges to be more cautious than ever, given that these issues are tremendously controversial in the society at large.
This gloomy picture does not mean that we should stop our human rights litigation. Not domestically, not before the European Court, nor anywhere else. Rather the opposite. The European Court of Human Rights is a powerful body. So too is the Council of Europe’s Committee of Ministers that monitors the implementation of judgments. Changes may not happen instantly, but they will happen. Poland is a member of both the Council of Europe and the European Union, and wants to be perceived as a respectable international player. It cannot ignore international pressure and solid human rights arguments forever. Every human rights judgment that points to the deep flaws of Polish reproductive rights policies is an embarrassment to the Polish government. And every judgment is used relentlessly by local advocates, international human rights groups, Members of the European Parliament, United Nations human rights bodies, and many others, to cast light on these flaws.
Change is happening at the national level, too. In 2011, the pro-choice Palikot Movement entered the Polish Sejm. One of its parliamentarians is Wanda Nowicka, one of the most well-known and outspoken proponents for women’s reproductive rights in Poland. We now have advocates within the parliament pushing for reform. We work relentlessly together with them and others to remind the government of its embarrassing track record in the field of reproductive rights and its international obligations to remedy the situation.
There are also encouraging examples of decisions from the European Court having had real and tangible impact in Poland in other fields. The Court, for example, has repeatedly found that prisoners in Poland are treated abysmally. After a string of cases, when the court concluded that these violations appear to be of a systemic nature, the Polish government finally acknowledged the problem and started reforming the prison system. This is only one example, but one that is a powerful reminder of what we can achieve if we are resilient and strategic.
We know from first-hand experience that the violations in the reproductive health care field are widespread and systemic in Poland. If we keep pushing for implementation of the cases already won while we also bring new cases to the Court’s attention, the government will finally have no choice but to see what we see. And then real change will finally happen.