April 19, 2024
By Noa Vreven
On 14 December 2023, the European Court of Human Rights ruled in the case of M.L. v. Poland (no. 40119/21). The case concerned the prohibition of abortion on the legal grounds of foetal abnormality, following a much-discussed ruling by the Polish Constitutional Court of 2020. This legal development forced the applicant to seek abortion services abroad. This blog post offers an overview of the European Court’s long-awaited judgment against Poland, identifies gaps in the Court’s reasoning, and considers its potential implications.
The case of M.L. v. Poland must be understood in the light of the decision of the Polish Constitutional Court (‘CC’) of 22 October 2020. This decision concerned the Polish Act of 1993 on family planning, protection of the human foetus and conditions permitting the termination of pregnancy. The Act provided for legal abortion on three grounds: (i) where the pregnancy endangers the mother’s life or health; (ii) where prenatal tests or other medical findings indicate a high risk of serious and irreversible damage to the foetus or an incurable life-threatening disease; or (ii) where the pregnancy is the result of rape or incest (M.L. v. Poland, §§26-28). On 22 October 2020, the Polish CC declared the second legal ground, which allows for abortion due to foetal abnormalities, incompatible with the Constitution, thereby significantly limiting existing abortion legislation (§31). The judgment took effect on 27 January 2021, giving rise to mass protests and demonstrations across Poland (§17), and prompting multiple applications before the European Court of Human Rights (‘the Court’).
The specific case of M.L. v. Poland was brought by a woman who became pregnant in 2020. At about 14 weeks of pregnancy, the foetus was diagnosed with trisomy 21, a genetic disorder which is also known as Down’s syndrome. As the applicant qualified for a legal abortion at the time, she was given a hospital appointment for 28 January 2021 (§§18-21). However, her appointment was cancelled following the publication of the CC’s judgment on 27 January 2021. Consequently, the applicant could no longer obtain a legal abortion in Poland and was therefore forced to travel abroad to terminate her pregnancy (§§22-24).
The applicant alleged that this distressing situation violated her rights under the European Convention on Human Rights (‘the Convention’), relying on Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (right to respect for private and family life). She also invoked Article 6 (right to a fair trial), claiming that the abortion restriction resulted from an unlawfully composed bench of the CC (§73). The Court decided to examine her application only under Articles 3 and 8.
Regarding Article 3 of the Convention, the applicant submitted that the cancellation of her hospital appointment and the need to travel for an abortion had caused her serious and real emotional suffering. She referred in particular to a decision of the United Nations Human Rights Committee in which inhuman and degrading treatment had been found in situations similar to hers (see Mellet v. Ireland, §§7.4-7.8; Whelan v. Ireland, §§7.3-7.5)(§§80-81).
In its reasoning, the Court took note of the psychological burden placed on pregnant women who are compelled to seek abortion services abroad. It also acknowledged the mental pain suffered by the applicant in this respect. However, the Court reiterated that any ill-treatment must meet a minimum level of severity in order to fall within the scope of Article 3. Upon evaluating the applicant’s circumstances, it did not consider them to be sufficiently severe to apply Article 3 (§§82-85).
The Court proceeded to examine the case within the context of Article 8 of the Convention. Drawing on previous case law (see A, B and C v. Ireland, §214), it agreed with the applicant’s argument that the Polish abortion ban in the case of foetal abnormality, where abortion was sought for reasons of health and well-being, fell within the scope of the right to private life. Thus, it declared Article 8 of the Convention applicable in the present case. However, the Court also repeated its well-established case law (see Tysiąc v. Poland, §106; A, B and C v. Ireland, §§213-214), underscoring that although abortion legislation intersects with women’s private life and autonomy, their rights must be balanced against competing rights and interests, including those of unborn life. Once again, the Court emphasised that Article 8 does not entail a right to abortion as such (§§93-94).
In assessing the merits, the Court held that the applicant’s inability to obtain an abortion in Poland interfered with her private life. To determine whether such interference violated the Convention, the Court examined whether it could be justified within the meaning of Article 8. The main question at hand was whether the interference was “in accordance with the law” (§§154-155). This means that the national measure, in this case the abortion ban, must be based on domestic law and be compatible with the rule of law. Additionally, the ban must be foreseeable to those affected by it (§§156-157).
Emphasising that the entire Convention is based on the rule of law principle, the Court stressed that any infringement upon Article 8 must originate from a “lawful” entity in order to ensure the legitimacy needed in a democratic society (§167). In this regard, the Court referred to an earlier Polish case from 2021, where it found that the composition of the Polish CC violated the Convention due to the improper election of three constitutional judges (see Xero Flor w Polsce sp. z o.o. v. Poland, §§189-190). In 2015, the Polish President had refused to swear in three judges who had been duly elected by the Sejm (the lower house of Parliament in Poland) of the previous term, which led the new Sejm to irregularly elect three replacements. As this seriously undermined the legitimacy of the CC’s bench, the Court did not consider the decision of 22 October 2020 to have been taken by a body meeting the rule of law requirement (§174). Furthermore, the applicant in M.L. v. Poland was deprived of adequate safeguards against arbitrariness, since the CC’s ruling interrupted the abortion procedure which she was eligible for and had already been initiated. The Court concluded that the interference with the applicant’s rights under Article 8 was not “in accordance with the law”, resulting in a violation of her right to private life (§§175-176).
In analysing the case of M.L. v. Poland, it can be argued that it did not reach its full potential in certain aspects. First of all, it is unfortunate that the Court appears to be quick to dismiss the application of Article 3 of the Convention in this case. The nature of the right under which the issue of abortion is classified is important, as it directly affects the extent to which States can interfere with it (Sjöholm 2018). The prohibition of inhuman and degrading treatment under Article 3 is absolute, which means that Contracting Parties to the Convention cannot restrict or derogate from it. Framing restrictions on abortion rights as an Article 3 issue would allow the Court to demand greater accountability from national authorities, for instance, for their involvement in subjecting women to ill-treatment in this regard (Zureick 2015).
In the case of M.L. v. Poland, it is apparent that the Court failed to examine the applicant’s particular vulnerability. In their concurring opinion, Judges Jelić, Felici and Wennerström argue that this shortcoming significantly undermines the overall assessment of the severity of the treatment suffered by the applicant. One can agree with the concurring judges’ argument that the applicant’s situation was indeed vulnerable and delicate and could therefore have triggered the application of Article 3. This is evidenced by the last-minute denial of her abortion after seventeen weeks of pregnancy, following the distressing and psychologically challenging decision of initiating the procedure after discovering the malformation of her unborn child. Consequently, the applicant was subject to serious uncertainty, fear and humiliation, ultimately compelling her to travel to another country overnight without any financial of psychological support and to undergo an abortion in an unfamiliar setting and language (Separate Opinion judges Jelić, Felici and Wennerström to M.L. v. Poland, §§3-6). There were therefore sufficient grounds to evaluate the applicant’s ill-treatment under Article 3. Moreover, the Court appears to ignore the applicant’s argument that her situation is similar to that of the applicants in Mellet and Whelan v. Ireland, where the UN Human Rights Committee had recognised inhuman and degrading treatment.
However, the rejection of claims under Article 3 of the Convention in M.L. v. Poland is not entirely surprising. The Court has developed its abortion jurisprudence primarily in the context of the right to private life under Article 8, providing States with a considerable margin of appreciation to regulate and even restrict abortion (Zureick 2015). There have been very few cases in which it has viewed restrictions on abortion access through the lens of inhuman and degrading treatment. For instance, in R.R. v. Poland (2011) and P. and S. v. Poland (2012), the Court recognised the severe pain and suffering caused to the respective applicants by the denial of their access to reproductive health services. Here, the Court took specific account of the applicants’ vulnerable situations, for example due to the painful uncertainty about the health of the applicant’s foetus (R.R. v. Poland, §159), the pregnancy resulting from rape or the applicant’s young age (P. and S. v. Poland, §162-166). Thus, the Court appears to apply Article 3 only in some instances where additional factors aggravate the applicants’ vulnerability (Timmer 2014). It is regrettable that the Court did not extend a similar reasoning to M.L. v. Poland, where the applicant’s vulnerability was indeed exacerbated by the legal uncertainty and anxiety about the impossibility of terminating her pregnancy, as argued above.
Second, the case of M.L. v. Poland remains silent on the critical issue of the lack of abortion access in cases of foetal abnormality or for reasons for health and well-being in Poland. The Court thus refrained from setting a European standard on this matter. Instead, it centred this case around the question of compliance with the rule of law, assessing only whether the CC’s judgment was indeed rendered “in accordance with the law” (§§156-176). Unfortunately, the Court did not get around to determining whether the interference with the applicant’s right to private life served a “legitimate aim” and was “necessary in a democratic society” as required by Article 8 (§155). The Court has traditionally recognised that abortion laws relate to women’s privacy and autonomy, while also taking into account States’ interests in protecting foetal development (A, B and C v. Ireland, §§213-214). However, in M.L. v. Poland, the Court passed up the opportunity to assess whether the Polish authorities had properly balanced the various rights and interests involved. It deliberately focused on the process by which the Polish CC reached its judgment, rather than on the sensitive content of the decision itself, i.e. the removal of women’s right to abortion in cases of foetal abnormality.
This cautious approach is in line with the Court’s tendency to view obstacles to abortion as procedural rather than substantive human rights violations (Erdman 2014), and thus to avoid taking a clear stance on abortion rights, considering it a sensitive moral issue (Sjöholm 2018). However, the question is whether the Court will be able to refrain from making a substantive analysis on this matter going forward. From a feminist perspective, it has been argued that the Court’s procedural focus overlooks how barriers to abortion services constrain women’s decision-making autonomy over their bodies and perpetuate the gender stereotypes and structural inequalities that underpin these barriers (Oja and Yamin 2016). More generally, the Court’s hesitance to recognise substantive abortion rights for women has been criticised for not reflecting today’s reality in Europe. Most European countries permit abortion either upon request or for broader social reasons within the first trimester of the pregnancy (De Meyer 2020; Center for Reproductive Rights 2023). The question remains whether the Court will adapt its jurisprudence to this growing consensus in favour of liberalising women’s rights.
Although the M.L. judgment may have overlooked the specific vulnerability of women who are forced to leave the country for an abortion and lost the chance to establish a European norm for women’s abortion rights, the question remains whether it may nonetheless have important practical implications. As Poland is now obliged to comply with the judgment and prevent similar human rights violations, the case offers the new Polish government an important opportunity not only to reinstate the rule of law in Poland, but also to review its current near-total ban on abortion (Kocemba 2023).
In the run-up to the Polish elections of 2023, liberal and left-wing parties committed themselves to legalising abortion up to the 12th week of pregnancy, which attracted significant support from women nationwide. Consequently, the progressive opposition secured enough seats to form a coalition government alongside the previously ruling conservatives (Politico 2024). Nevertheless, efforts to liberalise abortion legislation have encountered resistance as the new government remains deadlocked on the issue. As expected, the conservative party opposes the further legalisation of abortion and instead advocates for a national referendum to restore the pre-2020 legal framework. Furthermore, Poland’s conservative CC retains the power to reject potential legislative changes (Foreign Policy 2024). The M.L. ruling plays an important role in addressing the flawed composition of the CC, which is an obstacle to the restoration of the rule of law that needs to be removed (Kocemba 2023). It is hoped that this development will set in motion further reforms in Poland aimed at resolving the ongoing abortion deadlock.
In conclusion, the case of M.L. v. Poland represents an important first step in challenging Poland’s restrictive abortion legislation. The European Court of Human Rights found that the applicant’s right to private life under Article 8 of the Convention had been violated. It concluded that the interference with her access to abortion was not “in accordance with the law” because of the irregular composition of the Polish Constitutional Court and the absence of proper safeguards against arbitrariness. However, it is disappointing that the Court did not fully recognise the applicant’s vulnerable position in rejecting the application of Article 3, thereby passing up the possibility of subjecting the Polish authorities to heightened scrutiny in this case. This approach reflects the trend to address access to abortion primarily in the context of Article 8. Additionally, it was apparent that the Court approached this case from a procedural perspective, focusing on the rule of law requirement rather than undertaking a substantive analysis of the abortion ban. The case also raises concerns about the Court’s willingness to adapt to the growing consensus among European countries to adopt more liberal abortion laws. Nevertheless, the M.L. case provides an opening for the Polish government to tackle Poland’s pressing rule of law issues, hopefully catalysing further reforms to secure reproductive rights and human dignity for women in Poland.
With many thanks to Fien De Meyer (University of Antwerp) for reviewing the draft of this blog post.
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