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Lawyer unfazed by Poland abortion rights case defeat at ECHR

Ella Joyner in Brussels
June 8, 2023

Polish women challenging Warsaw's abortion laws at the European Court of Human Rights had their cases dismissed, but many more are still to come.

A person wearing a mask waves a pink flag with a black lightning bolt. Other protesters stand in the background.
Pro-choice demonstators took to the streets in swathes after the changesImage: Aleksandra Szmigiel/REUTERS

A Polish lawyer who oversaw the case of eight women challenging their country’s abortion laws at the European Court of Human Rights told DW she was undeterred after their complaints were deemed inadmissible on Thursday. 

"We were quite aware that the court might not agree with us at this point," Kamila Ferenc, a lawyer and vice-president of the Polish Foundation for Women and Family Planning (FEDERA), told DW on the phone.  

Taking the complaints to the ECHR was more about showing the "massive anger of Polish society, Polish women" following the introduction of a near-total abortion ban more than two years ago, Ferenc explained: "That was an unprecedented situation when in 2020 in the middle of Europe, in a modern country, women's rights are violated so much." 

The complainants — all Polish nationals born between 1980 and 1993 — had alleged that their right to respect for private and family life as out set in the European Convention of Human Rights were violated. 

'Too remote and abstract,' ECHR finds 

Two claimed to suffer medical conditions increasing the risk of fetal abnormalities and another two were pregnant and concerned about complications, according to ECHR press material. The others were planning pregnancies or stopped trying to become pregnant. 

But ECHR judges threw out their petitions on Thursday citing a lack of clear medical evidence. The prospect that 2020 changes to Poland’s laws could harm them was deemed "too remote and abstract" at present, the ECHR press material continued. 

Poland's Constitutional Court declared it illegal to abort seriously malformed fetuses in 2020, further tightening the country’s already strict rules and unleashing a massive wave of protests

The ECHR noted that it had received some 1,000 similar complaints since 2021. Thursday’s ruling  was the first on such a case. 

The conservative European Centre for Law and Justice think tank welcomed the ECHR ruling, saying it was "delighted".

"Despite all their efforts and prestige in the eyes of the world, the pro-abortion groups did not succeed in convincing the Court, which refused to allow itself to be crudely used — and demeaned — for purely political ends," the group said in a written statement on its website. 

Poland’s abortion lockdown

At present, termination is only permitted in Poland if the pregnancy is the result of rape, or if the mother's life is in danger. Doctors can refuse to perform abortions on grounds of conscience and face jail time for illegal terminations. In 2021, just 107 abortions were performed legally in Poland. FEDERA has estimated that 150,000 terminations take place in the country outside the official system each year.  

There have also been a number of high-profile deaths that activists or relatives have blamed on women being denied abortions. 

"The [2020] ruling has increased the extreme barriers women seeking access to abortion face and has had tragic consequences for many of them and their families," Keina Yoshida, a legal advisor from the international Center for Reproductive Rights, told DW in an emailed statement. 

"At least seven women have lost their lives as a result of being denied life-saving reproductive health care due to the near-total ban on abortion [in Poland] and its chilling consequences on the provision of essential medical care," Yoshida wrote.

Fighting for abortion rights - Polish women’s struggle

And now? 

FEDERA lawyer Ferenc told DW that while these particular cases had been dismissed by the ECHR, there were four others pending under her organization’s coordination. She was hopeful these would turn out differently as they were more concrete. The women had been diagnosed with fetal abnormalities and had been forced to travel abroad for terminations, she said. 

According to Jakub Jaraczewski, a legal expert at Democracy Reporting International, Thursday’s ruling is "merely the first shot of this battle." There are many more cases to be processed, he told DW. "[We will have to wait for] one of the obviously admissible cases — such as that of women who were denied abortion or of relatives of ones that died as a result of denial." 

The ECHR, which is headquartered in Strasbourg, ultimately has the power to award compensation to victims or even instruct a country to change its laws, though in practice the 46 Council of Europe members over which it presides have been known to snub verdicts.  

The European Convention on Human Rights, which provides the basis for rulings from the Strasbourg  court, does not explicitly refer to the concept of reproductive health or reproductive rights.  

The court has ruled in the past on complaints relating to Poland’s pre-2020 abortion laws. In 2007, it awarded a Polish woman compensation because she did not have the proper recourse to appeal after doctors’ denied her requests for termination. 

While FEDERA holds out hope for the ECHR rulings still to come, they are also waiting for elections. Poland is to headed to the polls by November at the latest, though the ruling Law and Justice (PiS) party is still on top in opinion polls.

"My hope is simple," Ferenc said. "We want to decriminalize abortion. We want free access to easily accessible abortion here in Poland." 

Additional reporting by: Tomasz Bielecki
Edited by: Carla Bleiker