Woman forced to travel abroad to have an abortion following legislative amendments in Poland breached the ECHR (ECtHR)

In Chamber's judgment (14.12.2023) in the case of M.L. v. Poland (application no. 40119/21) concerning restrictions on abortion rights the European Court of Human Rights held, by five votes to two, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The applicant alleged in particular that she had been banned from having access to a legal abortion in the case of foetal abnormalities, following a 2020 Constitutional Court judgment. She had become pregnant and the foetus was diagnosed with trisomy 21. A scheduled hospital abortion had been cancelled when the legislative amendments resulting from the Constitutional Court ruling had come into force. Unable to have an abortion in Poland, she had ultimately had to travel to a private clinic abroad for the procedure. 

The Court found that the legislative amendments in question, which had forced her to travel abroad for an abortion at considerable expense and away from her family support network, had to have had a significant psychological impact on her. Such interference with her rights, and in particular with a medical procedure for which she had qualified and which had already been put in motion, had created a situation which had deprived her of proper safeguards against arbitrariness. 

Moreover, the composition of the Constitutional Court that had issued the ruling impacting the applicant’s rights had included judges who had been appointed in a procedure tainted by serious irregularities (see the Court’s previous judgment of 2021 Xero Flor v. Poland). 

In parallel, the Court has unanimously declared inadmissible a case involving 927 women of child-bearing age who alleged that they were potential victims of a violation of their rights as the amendments to the law now forced them to carry pregnancies to term even in the case of foetal abnormality. 

As in the leading case A.M. and Others v. Poland, the Court found that these applicants had failed to provide any evidence proving that they had been at real risk of being directly affected by the legislative amendments. They could not therefore arguably claim to be “victims” within the meaning of the European Convention. This decision, M.B. v. Poland (no. 3030/21) and 926 other applications, is final. (source: echr.coe.int /photo: freepik.com)

Judgements are available here and here

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George Kazoleas, Lawyer

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