ON MARCH 20, 2007, THE Fourth Section of the European Court of Human Rights, made up of seven judges, gave judgment in Tysiac v Poland. It upheld the applicant's complaint. She suffers from severe myopia, but was unable to obtain a lawful abortion after she became pregnant for the third time. Alicja Tysiac had seen three ophthalmologists, who agreed that she might suffer retinal detachment as a result of pregnancy, but that this was not certain. Her family doctor was concerned about the impact of pregnancy on her sight, and certified that she met the criteria for an abortion. But when Tysiac saw a gynecologist, he disagreed.
Tysiac had her baby, and suffered retinal hemorrhages. Her sight deteriorated significantly. She complained to the criminal authorities. The prosecutor obtained a medical opinion that her eye problems were not caused by the gynecologist's refusal of an abortion. Tysiac challenged the refusal to prosecute in a judicial review, which failed. She reported the gynecologist to his professional body, which rejected her complaint.
The court said that her rights under Article 8 of the European Convention on Human Rights, which guarantees respect for private life, were violated. It rejected her claim under Article 3, a prohibition on inhuman and degrading treatment. It awarded her 25,000 [euro] in damages, plus legal costs.
This is the first case where the court has upheld a woman's complaint that her state denied her a lawful abortion. In D v Ireland, it decided that the applicant had failed to exhaust her domestic remedies. This ruling suggests that the court is more receptive to complaints about a malfunctioning abortion regime than to complaints touching on wider questions of when states should permit abortion.
Polish law permits abortion if pregnancy endangers a woman's life or health; if antenatal tests or other medical findings indicate a high risk that the fetus will be severely and irreversibly damaged, or is suffering from an incurable life-threatening disease; or if there are strong grounds for believing that the pregnancy is a result of a criminal act. Unless one of these conditions is met, abortion is a criminal offense punishable by up to three years' imprisonment.
In its fifth periodical report to the U.N. Committee on the International Covenant on Civil and Political Rights (ICCPR), the Polish government had stated:
"The Law's provisions are not fully implemented and ... some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go.... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions."
Tysiac complained that, while Polish law allowed doctors to make referrals for therapeutic abortion, it gave no details as to how that process worked, or within what time frame. Critically, there was no provision for any meaningful review of or scope for challenge of a doctor's decision not to make a referral for termination.
The Polish government maintained that Tysiac did not meet the criteria for a lawful abortion anyway. If she had been dissatisfied, she could have challenged the doctors' refusal in a judicial review.
A majority of the European Court accepted the applicant's argument. The court's reasoning shows a purposive approach to the application of the Convention to the facts.
Article 8 of the Convention has two aspects: first, protection of the individual from arbitrary interference by the authorities; and second, the state's obligation to take positive measures to ensure effective respect for private life. The court concentrated its analysis on the second aspect.
It began by making some points of principle. Legislation regulating the interruption of pregnancy touches upon the sphere of private life, since whenever a woman is pregnant, her private life becomes closely connected with the developing fetus. Next, although the Convention does not guarantee, as such, a right to any specific level of medical care, the notion of private life includes a person's physical and psychological integrity, and the state is under a "positive obligation" to secure to its citizens their right to effective respect for this integrity.
This can mean the adoption and implementation of measures designed to secure respect for private life, including the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights. Although Article 8 contains no explicit procedural guarantees, the effective enjoyment of the fights guaranteed by this provision implies that any relevant decision-making process be fair, so as to afford due respect to the interests safeguarded by it.
In cases concerning pregnancy, the court said, "a particular combination of different aspects of private life is concerned. While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must--in case of a therapeutic abortion be also assessed against the positive obligations of the State to secure the physical integrity of mothers-to-be."
It acknowledged that it is not the court's function to question doctors' clinical judgment. However, it noted the government's admission to the ICCPR committee that Polish abortion law does not always work effectively. In the court's view, this only served to highlight the importance of what it calls "procedural safeguards" regarding access to a therapeutic abortion.
THE NEED FOR SAFEGUARDS
The court continued:
"A need for such safeguards becomes all the more relevant in a situation where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, either between the pregnant woman and her doctors, or between the doctors themselves. In the court's view, in such situations the applicable legal provisions must, first and foremost, ensure clarity of the pregnant woman's legal position.
The court further notes that the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility under Article 156 [section] 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. The provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect_ Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it." [Italics added]
So what safeguards are needed? The court said that the rule of law in a democratic society means that measures affecting fundamental human rights should, in certain cases, be "subject to some form of procedure before an independent body competent to review the reasons for the measures and the relevant evidence." It said that this procedure should guarantee the woman "at least a possibility to be heard in person and to have her views considered. The competent body should also issue written grounds for its decision."
Finally, the court stressed that that the very nature of the issues involved in decisions to terminate a pregnancy is such that time is of the essence. The procedures in place should therefore ensure that such decisions are timely, to limit or prevent damage to a woman's health, which might be occasioned by a late abortion. Measures that only operate retrospectively are not enough, because by then, the woman might have suffered irreparable damage to her health.
In considering how the applicant had been affected by the lack of safeguards in her particular case, the court showed sympathy for Tysiac. It said that the applicant had been left in a situation of prolonged uncertainty and "suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health."
There is a strongly worded dissent by the Spanish judge. He complained that the majority ruling was disrespectful to Polish doctors, and effectively favored abortion on demand. He questioned why the applicant in the Irish case was said to have failed to exhaust her domestic remedies, whereas here, Tysiac was not. He concluded: "According to this reasoning, there is a Polish child, currently six years old, whose right to be born contradicts the Convention. I would never have thought that the Convention would go so far, and I find it frightening."
The thrust of the majority ruling is clear. If a state chooses to legalize a therapeutic procedure that affects fundamental rights, it cannot make the procedure impossible to access in practice. What is less clear is the nature of the review procedure envisaged; presumably, this is to be worked out by the member state. In Poland, this judgment will cause controversy. The government may ask for it to be referred to a Grand Chamber for review.
BARBARA HEWSON is a barrister at Hardwicke Building in London, U.K.…