On 1 July 2021, the European Court of Human Rights communicated a series of 12 applications against Poland (see links: K.B., K.C. and A.L. – B.. as well as the Court’s press release).
All were filed by Polish women who consider that the ban on eugenic abortion violated their right to privacy (Article 8) and amounted to mental torture (prohibited by Article 3). The applicants are between 27 and 40 years old and say they are very “worried” and “stressed” by the fact that they won’t be able to eliminate a hypothetical disabled child. The Polish Constitutional Court ruled on 22 October 2020 (case K 1/20, in which the ECLJ intervened), that eugenic abortion was contrary to human dignity and thus unconstitutional.
Several applicants claim to be reluctant or to have given up on starting a family because of the ban on eugenic abortion. Others, who were pregnant at the time of filing the application, would have wanted to feel “happiness” and not “anxiety” at the idea of not being able to abort their child in the event of the discovery of a potential disability. Finally, for some requests, it is difficult to understand the link between the women’s wishes and eugenic abortion.
For example, one uses contraception and does not want to be pregnant at all, but she says she is “very worried”. Another, who is 40 years old, says she is infertile, has already tried three unsuccessful in vitro fertilisations (IVF), does not want to have any more children, but still complains of “mental torture” because of the ban on eugenic abortion.
Surprisingly, all of these applications were deemed serious enough by the ECHR to be selected from the 5% of applications it accepts to juge, and urgent enough to be given clear priority.
The ECHR could, and should, have rejected such applications from the outset because:
- The European Convention guarantees the “right to life”, not a right to abortion, let alone eugenic abortion which discriminates against disabled people;
- None of the applicants were victims of the prohibition on eugenic abortion within the meaning of Article 34 of the European Convention, as no such abortion was requested by any of the twelve women, who are, at most, only hypothetical or potential victims;
- The applicants applied directly to the European Court, without exhausting domestic remedies, in violation of Article 35 of the Convention and of the principle of subsidiarity;
- The Court rejects in principle “actio popularis,” i.e. legal remedies brought by persons who are not victims and have with the sole aim of changing the law.
Furthermore, it is doubtful whether the European Convention offers a legal guarantee against the anxiety or stress caused by the idea of pregnancy, but also whether this anxiety can reach a sufficient degree of intensity to be qualified as “torture” within the meaning of the Convention, even supposing that the reality of this hypothetical psychological state be proven, and that it be imputable to the State. These claims also imply that pregnancy would be an inevitability from which the state has an obligation to protect women.
In fact, if it were not for the issue of abortion and Poland, these applications would have been rejected out of hand, by a single judge. Unfortunately, with these cases, the Court is once again accepting to be instrumentalisedfor purely political purposes, to “bring down” Polish legislation protecting human life before birth, as it previously helped to bring down Irish legislation.
A thirteenth application against Poland, brought by Jolanta Anna Zawadzka, was also communicated on 29 June 2021. The feminist activist is challenging, on the grounds of her freedom of expression, the fact that she was fined for disrupting a mass in Warsaw in 2016 to protest against the Church’s position on abortion. Both her lawyers see the case as part of the demand for abortion rights in Poland.
We observe an increase in the number of abortion cases against Poland. As we already explained, the ECLJ intervened in September 2020 in the case of B.B. v. Poland, still pending before the Court, in which the Polish law on abortion and conscientious objection are challenged.
In the past, the ECHR has already condemned Poland three times in abortion cases, in the judgments Tysiąc (2007), R.R.
All these cases are of the utmost importance: they are a decisive fight for the protection of life and sovereignty against supranational judicial activism.
It is interesting to note that, both at the ECHR and at the Committee of Ministers, but also in the pro-abortion demonstrations in Poland, the issue of eugenic abortion is at the heart of the battle. Before their ban in Poland, these abortions were mainly targeted at children with Down’s syndrome. However, people with Down’s syndrome do not suffer and are generally happy.
This demand for eugenic abortion is made in the name of women’s rights. However, unlike the reasons usually given to justify abortion – rape, danger to the health or life of the mother, or simply the mother’s choice – eugenic abortion is based on a characteristic of the baby, unrelated to the mother. Abortion is not then an attempt at family planning or a response to a health or social need of the mother, it is an assumed selection between “healthy” children and sick, handicapped or with Down’s syndrome children. It is not a general refusal of the right to be born, it is a rejection of sick, disabled or with Down’s syndrome people. This is called eugenics and it is no less shocking before birth than after.
The ECLJ intervenes on behalf of Poland in the 12 appeals sent.