The Court has released an important judgment in the area of reproductive health, R.R. v. Poland. It is also a very interesting judgment, as it raises a complex set of issues connected to different fields of law. Our team had a lively debate about this case yesterday. It became clear that there are various ways of looking at the Court’s reasoning: gender, health rights and freedom of religion are all perspectives that can be brought to bear on this case. With this post I would like to put my first thoughts on paper. The focus will be on the Court’s reasoning under Article 3 (prohibition of inhuman or degrading treatment).
The facts of R.R. v. Poland make for sad reading. The case concerns a woman who was deliberately refused genetic tests during her pregnancy by doctors who were opposed to abortion. The woman and the doctors suspected a severe genetic abnormality in the fetus, but the doctors withheld the tests until the legal time-limit for abortion had expired. R.R. tried desperately to obtain the relevant genetic tests, that she may have had the opportunity to make an informed decision about whether or not to terminate her pregnancy. She saw numerous doctors and went to several hospitals and clinics, she even travelled to doctors in other regions than her own – at one point she was even hospitalized for a few days, during which time the doctors only carried out irrelevant tests – but all to no avail. Only when it was too late for an abortion, was her suspicion that the baby she was carrying had a genetic abnormality confirmed. The child was subsequently born with Turner syndrome.
The ECtHR treats the case under articles 3 and 8 of the Convention and found a violation of both of these provisions.
The Court’s reasoning under Article 3
Though the Court has a lot of interesting things to say under Article 8, a big part of the novelty of this case lies in the Court’s reasoning under Article 3 (prohibition of inhuman or degrading treatment). As far as I can see, this is the first time that the Court finds a violation of Article 3 in a reproductive freedom case. When ruling on this article, the standard criterion is that the facts complained of should fall under a “minimum threshold of severity”. The Court comes to the conclusion that the applicant’s suffering reached that threshold and that Article 3 has been breached. The relevant reasoning is worth quoting at some length, to show the empathy that the Court has for the applicant’s situation:
“The Court notes that the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her family’s future and the prospect of raising a child suffering from an incurable ailment. She suffered acute anguish through having to think about how she and her family would be able to ensure the child’s welfare, happiness and appropriate long-term medical care. Her concerns were not properly acknowledged and addressed by the health professionals dealing with her case.” (par. 159)
This sort of reasoning I can only applaud. Not surprisingly, the judgment is hailed with great enthusiasm by those working in the area of reproductive rights.
Battling systemic failure: positive or negative obligations?
So far my first impressions. A deeper question that this case raises is how the Court could best deal with structural/systemic failures. I would describe what R.R. went through as a systemic failure on the part of the Polish authorities to provide her with the health care she is entitled to. What I am suggesting is that the problem in this case does not stem so much from the individual health care professionals that R.R. happened to come across, in other words, it is not one concrete act of interference that is at issue here; rather, the problem lies in a general negative and disapproving attitude on the part of the authorities when abortion is concerned. It is the system in its entirety that made a legally available abortion (assuming for the moment that the genetic disposition of the fetus was such that an abortion would be allowed), unavailable in practice.
If I read the judgment correctly, the Court deals with this issue under the header of ‘positive obligations’. The Court notes: “there was an array of unequivocal legal provisions in force at the relevant time specifying the State’s positive obligations towards pregnant women regarding their access to information about their health and that of the foetus.” (par. 157). The State violated these positive obligations in such a way as to amount to a violation of Article 3.
I am indebted to my colleague Laurens Lavrysen for pointing out that one could argue that the case of R.R. v. Poland falls under the State’s negative obligations under Article 3. Interesting in this context is how the “obligation to respect” (which is part of a State’s negative obligations) has been formulated by the UN Committee on Economic, Social, and Cultural Rights (CESCR). In General Comment No 12, the CESCR notes: “The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access”. (par. 15) Analogously, R.R. v. Poland is about preventing access to health care and therefore centers on the obligation to respect.
Of course, one can say that the most important thing is that the Court finds a violation. But does it matter whether this is decided under the regime of positive obligations rather than ‘negative’ obligations? I think it matters on at least one count. Under negative obligations, there is a different kind of recognition of harm than under positive obligations. To put it strongly, under positive obligations the harm gets formulated as “you promised to do something (i.e. provide health care and abortion on certain grounds) and you did not do it”; whereas under negative obligations the harm is “you treated this woman in an inhumane way”. The second statement is much stronger than the first.
R.R. v. Poland is a well-reasoned judgment and a step forwards in the effective recognition of women’s reproductive rights. From a gender perspective, it would have been even better if the Court had also addressed the article 14 (the prohibition of discrimination) issues that this case raises. But let’s look at the glass as half full. This case has established that when serious system-blockage occurs – the type of problem that cannot be reduced to one concrete act of interference by the State – under certain circumstances, this can lead to a violation of the States’ positive obligations under Article 3. With this judgment, both vulnerable women and men who are victim of systemic failure win.
 Section 4(a) of the Polish 1993 Family Planning Act provides:
“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 ailment;
3) there are strong grounds for believing that the pregnancy is a result of a criminal act.”
Under any circumstances, it is only possible to obtain an abortion before the 23rd week of pregnancy (when the baby would be able to survive outside the mother’s body).