The ECHR Condemns Poland to a Cultural Revolution

It only took four days. On Monday, December 11, 2023, Donald Tusk was elected Prime Minister of Poland with the support of the left and far left wings. The very next day, the ECHR condemned Poland for its non-recognition of same-sex couples. On Wednesday, the Council of Europe was informed by the new Polish government that it would cease to contest the judgements of the ECHR, particularly regarding the contentious judicial reform. On Thursday, the ECHR condemned Poland for the prohibition of eugenic abortion.

Why wait until after Donald Tusk's election to publish these judgements? Simply to prevent the previous conservative Polish government from exercising its right to appeal to the Grand Chamber of the ECHR. The Court knew that these judgements would be welcomed by the new Tusk government. Now it can use them to impose these reforms on Poland.

When the ECHR rules on essential political and cultural issues, it would be naïve to believe that its judgements are solely based on legal logic. They are primarily political, then dressed in legal attire. Often, this legal attire 'cracks' under the strain of pulling law in a political direction. This happens whenever the Court interprets the Convention opposite to the intentions of its drafters, as in matters of morals, immigration, or euthanasia.

The M. L. judgment condemning Poland for eugenic abortion is illustrative in this regard. As the two dissenting judges pointed out in the margins of the judgment, the Court manages to condemn Poland for not allowing a pregnant woman to abort, while emphasizing that the Convention does not guarantee a right to abortion. It achieves this by moving abortion into the realm of private life (Article 8) and challenging the legitimacy of the Constitutional Court, which initiated the prohibition of eugenic abortion. The European Court thus avoids questioning the human rights compliance of the abortion in question, performed at 17 weeks of pregnancy due to the child’s Down syndrome. Poland considers such abortion contrary to human dignity and the rights of disabled persons, leading to its unconstitutional status. As, the two dissenting judges of the ECHR denounce, this "judgment will contribute to enhancing prejudice against the extremely vulnerable class of persons with trisomy 21 and negatively stereotyping them as a burden on their families."

It is obvious that the drafters of the ECHR would never have accepted their text being used to create a right to eugenic abortion. A proposal aiming to ‘prevent the birth of disabled children’[1] was expressly rejected during the drafting of the Universal Declaration of Human Rights due to its resemblance to Nazi practices.

Ultimately, Poland was ordered to pay €16,000 to the claimant because she would have had "no other option" but to have an abortion abroad, even though she was supposed to be able to do it in Poland before the disputed prohibition came into effect. The ECHR does not impose the legalization of eugenic abortion but drives a wedge into its prohibition. It thus acts on sensitive subjects.

The European Court contributes to imposing a cultural revolution on Poland through its jurisprudence. While it may seem progressive from the perspective of Western Europe, this differs when viewed through the lens of Polish history. It is essential to remember that abortion was initially introduced in Poland by Nazi Germany to limit the demographic of the Slavic people. A Nazi document dated November 25, 1939, titled ‘The problem of how to deal with the population of the former Polish territories on a racial-political bases’ prescribes that "All measures serving to control births must be accepted or encouraged. Abortion must not be punishable on the territory. Abortifacients and contraceptives may be publicly offered for sale in all their forms without any political measures being taken. Homosexuality must be declared non-punishable. Institutes and persons who engage in abortion must not be pursued by the police." This document organized the Germanisation attempt of Poland and the first deportations, with its 'ultimate aim being the complete elimination of the Polish national spirit’.[2] Abortion was then promoted during the Soviet occupation with similar ideological intentions. ideological intentions.’ Historically, abortion is not considered in Poland as a liberal practice or a feminist conquest, as in Western Europe, but rather as an anti-Polish practice imposed from abroad by the Nazi and then Soviet occupiers... and today by the ECHR.

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[1] Proposal from the Working Group of the Commission on the Status of Women, Preparatory work, E/CN.4/SR.35, p. 1266

[2] Trials of the War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1946-49), Volume 5, page 95-96.