ETPC has not annulled the ban on eugenic abortion in Poland. He simply concluded that the 2020 judgement of the Constitutional Tribunal was announced in a chaotic and vague manner. The abortion ban itself was not challenged – the Court recalled that states have right defend the life of the unborn children, due to the fact that the Convention does not warrant "right to abortion".
There has been a ritual in Polish public life for years: all ruling of a abroad tribunal becomes an excuse for a national storm, the temperature of which increases in proportion to the level of misunderstanding of the content of the judgment. 1 press release was adequate for any media to announce that in Strasbourg "a ban on eugenic abortion had been abolished". But the fact is completely different.
The European Court of Human Rights has not challenged the ban on eugenic abortion in Poland. Not straight or indirectly. He only questioned the way this ban was declared. This discrimination is crucial. And very uncomfortable for those environments that have been trying to convince Poles for years that Europe requires legalization of abortion. It does not require – and this conviction is yet another proof.
Where did the case come from? A past of women, chaos and politics
In 2020 – a year that Poles remember both due to the pandemic and thousands of street protests – the Constitutional Court ruled that the alleged eugenic premise was incompatible with the Constitution. In another words, you can't take a child's life just due to the fact that he's suspected of being sick or disability.
This sentence, based on the rule of protecting human life from conception, remains 1 of the most crucial achievements of the Polish legal strategy in the last 30 years. But there was 1 problem: it was only published 3 months after its release. Meanwhile, women in weight, doctors, hospitals – they all lived in legal suspension, not knowing whether the regulation already applies, or whether it will inactive apply.
That's why she filed the complaint. womanwho gave up abortion in Poland and left for the Netherlands, where the procedure was performed in a private clinic. Her complaint did not concern whether Poland is obliged to licence abortion. It afraid whether the State acted in a predictable and lawful manner.
What did Strasbourg truly say?
- Abortion is not a human right. Those who waited for the revolution did not come. The ECHR reiterated its position: the European Convention on Human Rights does not warrant the right to abortion. Neither as freedom, nor as a claim, nor as a right.
- States are free to regulate the protection of unborn life. From Ireland to Malta, from Poland to Finland – all country has the right to find the scope of life protection according to its own standards. Thus: the ban on eugenic abortion is compatible with European law.
- The problem is procedure, not content. The ECHR considered that: the 2020 judgement of the Constitutional Tribunal had fallen with judges whose choice was raised by legal objections, the Prime Minister waited to print the ruling, which created legal uncertainty, this uncertainty affected the applicant's life and violated her right to privacy (Article 8 ECHR).
What was lacking in that sentence? The voice of a child
In the full ruling – cool, legal, method – there was no 1 element: a reflection that there was another individual in the case. The smallest. Most vulnerable. A man who lived truly, though he could not defend himself. His communicative did not fit in the file, although he was the 1 who was most affected by the abortion decision. This is simply a reminder for us people of conscience: all decision that touches the issue of abortion always has a second hero, though he is never in the courtroom.
The protection of the life of the unborn kid is inactive in force in Poland and the judgement of the ECHR does not change that. It should be recalled that the right to life deserves the seriousness of the state, not its mess.
jb
Source: basins.pl, Center for Medical Law and Bioethics Ordo Iuris
