The alert was sent to the Council of Europe’s Committee of Ministers regarding the Polish government's lack of compliance with European Court of Human Rights decisions that safeguard women's right to seek safe and legal abortions.
As the communication emphasised, there are no mechanisms in Poland that guarantee women practicable access to legal abortion.
Cases lost by Poland
The HFHR’s communication refers to three judgments, P. and S. v. Poland, R.R. v. Poland and Tysiąc v. Poland, in which the Court found that Poland had violated the European Convention on Human Rights. The applicants in these cases were entitled to an abortion under Polish law but medical personnel restricted their access to this health service. Due to the lack of proper legal mechanisms, the applicants were either prevented from exercising their right to access legal abortion or faced material difficulties in exercising this right.
In anticipation of the Committee of Ministers’ debate on the closure of the procedure for the execution of the judgment P. and S. v. Poland, the Helsinki Foundation called on the Committee to continue supervising Poland’s implementation of this decision. The HFHR also stated that its communication did not refer to the existing legal framework for legal abortions but only discussed the procedural aspects that are supposed to guarantee that women can use abortion whenever Polish law allows.
Overly formalistic criteria
"In our assessment, there are no mechanisms that would guarantee that women have effective and timely access to the lawful procedure of termination of pregnancy. Regrettably, the existing procedure for objecting against a certificate or opinion of a doctor who refuses to perform abortion is too formalistic and does not guarantee that the final decision is issued before the end of the period in which a pregnancy may be legally terminated", says Jarosław Jagura, a member of the HFHR legal team. "Also, the objection procedure does not ensure that a woman obtains accurate, full and objective information about whether she has the right to a legal abortion, and also information about the condition and health of the foetus."
Right to legal abortion 'illusory'
In a 2015 ruling, the Constitutional Tribunal held that a doctor who refuses to perform a medical service on moral grounds was under no obligation to refer a patient to another facility where the patient can obtain this service. There is no person or institution that could refer patients who find themselves in such a situation to a proper facility where they are able to access the services they are legally entitled to.
"The state should introduce measures that would ensure that the medical personnel’s reliance on the 'conscience clause' does not deprive women of access to legal abortions. Otherwise, women’s right to a legal abortion will become illusory", Jagura explains.
The communication sent to the Council of Europe’s Committee of Ministers can be read here.