ECHR: The Abortion Lobby Lashes out at Poland

In recent months, the European Court of Human Rights (ECHR) has agreed to hear more than 15 applications against Poland by or with the support of the abortion lobby, resulting in a new political instrumentalization of the ECHR. The global abortion lobby is being mobilised in an unprecedented way, even though most of these applications ought to be declared inadmissible. Moreover, these applications are an offence to people with disabilities, as 14 of them complain about the impossibility of eliminating disabled children before birth. The applications also call into question the impartiality of the Court and the Registry, as several of them have worked for the stakeholder organisations or have publicly advocated for the liberalisation of abortion in Poland.

Is suppressing an unborn child because they are disabled a human right? That is what a coalition of organisations is arguing before the European Court of Human Rights. They are challenging the decision of the Polish Constitutional Court to abolish eugenic abortion out of respect for human dignity, adopted by a judgment of 22 October 2020 in case K 1/20.  This ruling had the effect of protecting the lives of more than a thousand disabled children - most of them with Down's syndrome – who would have been aborted like every year until then. The ECLJ intervened in defence of human life (see our observations here). The global abortion lobby then mobilised in an unprecedented way to challenge this judgment before the ECHR and impose the practice of eugenic abortion in Poland.

As a reminder, abortion was first legalised in Poland by the Nazi occupiers - as a demographic weapon - before being extended and promoted by the Soviet occupiers. In 1993, after the fall of the communist regime, a new law limited the possibility of abortion to cases of pregnancy resulting from an illegal act (rape, incest, etc.), a serious malformation of the foetus, or risk to the life or health of the pregnant woman. The number of abortions per year was reduced from more than 100,000 to a thousand.

This case is crucial: politically, it shows how the ECHR can be instrumentalised by "NGOs", at the risk of calling its impartiality into question; legally, it raises once again the question of a "right to eugenics".

A new instrumentalisation of the Court

On 2 November 2020, the Warsaw Helsinki Foundation invited women wishing to challenge the Constitutional Court's decision to contact it for help in filing applications to the ECHR.[1] Similarly, on 1 April 2021, the Federation for Women and Family Planning (FEDERA) in Poland invited women in Poland to fill a large number of applications before the ECHR to challenge the 22 October 2020 judgment, providing a pre-filled application form.[2]

On 1 July 2021, in an exceptionally rapid response to these applications, the ECHR informed the Polish government of its decision to rule on a series of 12 cases (K.B. v. Poland, K.C. v. Poland and A.L. - B. and others v. Poland).[3] These were brought by Polish women aged 27 to 40 who claimed that the idea of carrying a disabled child without being able to abort them would cause them "stress" amounting to mental torture and violate their right to respect for their private life, in violation of Articles 3 and 8 of the Convention. This is the argument provided by FEDERA and the Helsinki Federation, under the supervision of lawyers Agata Bzdyń, Kamila Ferenc and Monika Gąsiorowska.

The global abortion lobby is mobilised

In the months that followed, the main abortion lobbies asked the ECHR for permission to intervene in the case. A group including Amnesty International, Human Rights Watch, Center for Reproductive Rights, International Commission of Jurists, International Federation for Human Rights, International Planned Parenthood Federation European Network, Women Enabled International, Women's Link Worldwid, World Organisation against Torture acted jointly. Activist Fiona de Londra also spoke with a group of law teachers, as well as the United Nations Working Group on Discrimination against Women and Girls, whose chair (Melissa Upreti) was a staff member of the Center for Reproductive Rights. Most of these abortion activists also intervened before the US Supreme Court in the recent case of Dobbs v. Jackson Women's Health Organization. They are also mostly funded by the same organisations.[4] The Council of Europe's Commissioner for Human Rights also intervened, as is its custom, in support of abortion, based on a report written in 2017 by the same Center for Reproductive Rights. The International Federation of Gynecology and Obstetrics (FIGO) also intervened, as it did in R.R. v. Poland.

FEDERA, which initiated and provides legal representation in these cases, is funded by the Center for Reproductive Rights[5] - which also intervened in these cases as a "third party" - but also by the Open Society Foundation (with about US$550,000 between 2017 and 2020),[6] the International Women's Health Coalition, the Global Fund for Women (US$348,500 between 2012 and 2020),[7] the Sigrid Rausing Trust (£130,000 as of 2018),[8] the Fundacja im Róży Luksemburg - Przedstawicielstwo w Polsce, and Mama Cash.

On the side of defence of human life and dignity, only three organisations were allowed to intervene: ECLJ, ADF and Ordo Iuris, while the applications of three other organisations were rejected by the Court, including that of a Down's syndrome organisation (PRO VITA București, Alliance of Romania's Families, Down Art Therapy Association). It is very regrettable that the application of the latter association was refused, as children with Down's syndrome are the main ones concerned by the outcome of these proceedings.

Given the importance of these cases, the ECLJ intervened with the support of a number of organisations and prominent lawyers, including Messrs Giovanni Bonello, Javier Borrego Borrego, Vincent A. De Gaetano and Boštjan Zupančič, former judges at the ECHR, Antoni Górski, Judge at the Supreme Court of Poland (1997-2017), President of the National Judicial Council (2010-2014), Rafael Nieto Navia, Judge and President of the Inter-American Court of Human Rights (1982-1994), Judge at the International Criminal Tribunals for the former Yugoslavia (1997-2005) and for Rwanda (1999-2003), Alfred de Zayas, United Nations Independent Expert on the promotion of a democratic and equitable international order (2012-2018). The ECLJ's brief can be downloaded here.

These cases should be ruled inadmissible

If it were not for the sensitive issue of abortion, these applications would have been dismissed out of hand, by a single judge. Firstly, because the Convention does not guarantee a right to kill a foetus because of a disability, nor does it guarantee a right to abortion. Secondly, because the state has no obligation to protect women from pregnancy. Finally - assuming that there be a treaty right to eugenic abortion - because the Convention does not allow one to complain about a law without first having been a victim of it, and without having first brought the matter before the national courts. In other words, it is not the purpose of the European Court to review the conformity of national laws with the Convention in the abstract, let alone to initiate an actio popularis against the legislation. It is true that a person who is a potential victim of a violation of the Convention may apply to the Court, but only if there is a real and specific risk that they will be personally affected by the law, and that this risk will affect their conduct in such a way as to make them liable to criminal prosecution.

The applicants' alleged "anxiety" at the thought of not being able to abort, should they conceive a disabled child, was in no way specific to the applicants and was not serious, nor had it been proved. Moreover, two of the applicants do not want to or cannot have children.

An offence against people with disabilities

More than that, this "anguish" is not caused by the decision of the Constitutional Court but by the fear and rejection of disabled people. Therefore are these applications an offence to disabled people who are thus stigmatised and discriminated against. Abortion is not the best answer to the anguish caused by the fear of disability. It is possible to overcome this fear without eliminating unborn children with disabilities. That is what respect for human rights is all about. If the applicants were right, the disabled children who escaped eugenic abortion as a result of the 22 October 2020 judgment would be the result of violations of the European Convention on Human Rights.

Due to the very nature of the act of abortion, it can never be a right, nor a freedom. Poland, within its margin of appreciation, recognises the unborn child as a subject of law and grants it legal protection from the moment of conception. By granting the child the right to non-discrimination on the basis of disability, Poland is complying with the most recent developments in international law, which prohibit the mentioning of disability as a specific ground for abortion. According to the UN Committee on the Rights of Persons with Disabilities (CRPD), “Laws which explicitly allow for abortion on grounds of impairment violate the Convention on the Rights of Persons with Disabilities (Art. 4,5,8),” particularly because this type of abortion “perpetuates notions of stereotyping disability as incompatible with a good life”.^[9] For the Committee, abortion because of a disability is in itself discrimination that stigmatises people with disabilities.

Finally, it is not the fear of disability that constitutes torture within the meaning of the Convention, but rather the suffering inflicted by abortion on unborn children. Eugenic abortions are usually performed late in life, when the nervous system of the foetus is already developed, and when they can feel pain. Worse still, some late-term abortions are carried out by dilatation-evacuation. In this method, the cervix is dilated and the fetal limbs are removed with forceps. If there was no prior injection to cause foeticide, or if the injection did not cause the death of the fetus, this means that the fetus was alive while it was being dismembered.

The question of the impartiality of the Court and the Registry

It is quite surprising that the Court selected these cases from the 5% of applications that it agrees to judge, even more so, as a priority. This may be explained by the attention the Court has always paid to this issue, and the support these cases receive from organisations close to the ECHR, such as the Warsaw Helsinki Foundation, Amnesty International, Human Rights Watch, International Commission of Jurists, etc. Several judges of the Court, in office at the time of the applications, have collaborated with, or even held positions of responsibility in these organisations. This is the case of Judges Grozev, Pavli, Mits, Kūris and Turković who worked for or with the Open Society (which funds FEDERA and some of the third parties), or Judges Motoc and Kucsko-Stadlmayer who were members of the International Commission of Jurists (ICJ), which intervenes in the 12 cases in support of abortion.^[10]

These cases also raise difficulties regarding the impartiality of the Court's registry. Indeed, several lawyers, who are members of the registry, have publicly campaigned on social networks in favour of the liberalisation of abortion in Poland since the October 2020 decision, placing the "red lightning" symbol (Strajk Kobiet) on their profile picture. This is particularly the case of Polish lawyers likely to deal with these cases in court, such as Rafał Sokół and Marcin Sczaniecki. The latter also worked for the Helsinki Foundation in Warsaw before being recruited by the ECHR. Indeed, many of the Court's lawyers have worked for organisations such as the Open Society Justice Initiative. Conversely, Agata Bzdyń and Monika Gąsiorowska, who contributed to the drafting of these applications, used to be lawyers at the ECHR.^[11]

As a result, the conditions for the impartiality of the registry are not fully guaranteed in these important and sensitive cases.

A series of cases against Poland

These twelve applications have been accepted by the Court, while three other cases against abortion restrictions in Poland are currently pending before the ECHR.

Indeed, on 29 June 2021, the Court communicated an application brought by a feminist activist who, invoking the right to freedom of expression, complained that she had been fined after noisily disrupting a mass in Warsaw in 2016. She wanted to protest against the Church's opposition to abortion. The ECLJ intervened in this case and filed observations with the Court (Jolanta Anna Zawadzka v Poland, no. 50554/19). In July 2021, another application (M.L. v. Poland, no. 40119/21) was communicated to the Polish Government: it was submitted by a woman complaining that she had to spend 1220 euros to travel to the Netherlands to abort the child with Down's Syndrome she was carrying. The applicant is represented by Agata Bzdyń and Kamila Ferenc of FEDERA. Finally, the Court is still awaiting judgment in the case of B.B. v Poland (no. 67171/17) communicated on 29 January 2020. In this case, a woman complained about a doctor's refusal to perform an abortion (after 24 weeks of pregnancy) on the disabled child she was carrying. Her child died shortly after their premature birth. She is also represented at the ECHR by Agata Bzdyń,^[12] together with Monika Gąsiorowska^[13] of FEDERA. The ECLJ filed written observations in September 2020 in this case as well as, among others, the Warsaw Helsinki Foundation.^[14]

Finally, the Council of Europe Committee, in charge of supervising the execution of the Court's judgments, refuses to close three former cases in which Poland has already been condemned for not providing effective access to abortion. These are the Tysiąc (2007), R.R. (2011) and P. and S. (2012) judgments^[15]  already unofficially brought by the Federation for Women and Family Planning (FEDERA); the ECLJ had intervened in the P.S. case. Even though the Polish Government has largely fulfilled its obligations arising from these convictions, the execution of judgments department is still demanding more, as the ECLJ has shown in its written observations. In its interim resolution of 11 March 2021 (CM/ResDH(2021)44), the Council of Europe has indeed extended its demands, stating on the one hand that Poland should curtail the right to conscientious objection, and on the other hand asking it to justify itself on the Constitutional Court's judgment of 22 October 2020, even though this judgment is more than 10 years after the three judgments by the ECHR.

Even though abortion is no human right, but an infringement on the right to life, the bodies of the Council of Europe are being used to try and force the Polish government to liberalise abortion. This pressure is now being exerted against Poland in the context of the political struggle of the European bodies against the conservative Polish government. The ultra-liberal forces (represented by the organisations supporting these applications) want to lead Poland into the same process of cultural revolution that has profoundly transformed Ireland in the decade since its conviction in A. B. and C. v. Ireland of 16 December 2010. Getting a country to legalise abortion is symbolically a declaration of apostasy from the Christian faith, and of adherence to materialistic and individualistic post-modernity. This is the real cultural issue in the abortion battle. To accept abortion is to adhere to a conception of man and society in which the individual will claims to dominate human life.

[1] https://www.hfhr.pl/skargi-do-miedzynarodowych-organow-ochrony-praw-czlowieka-a-tzw-orzeczenie-tk-w-sprawie-aborcji/

[2] https://web.archive.org/web/20210120231617/https://skargakobiet.eu/

[3] K.B. v. Poland and 3 other applications (nos. 1819/21, 3682/21, 4957/21, 6217/21), K.C. v. Poland and 3 other applications (nos. 3639/21, 4188/21, 5876/21, 6030/21), and A.L. - B. v. Poland and 3 other applications (nos. 3801/21, 4218/21, 5114/21, 5390/21).

[4]  Open Society Foundation, Center for Reproductive Rights, Sigrid Rausing Trust, Ford and MacArthur Foundations.

[5] https://federa.org.pl/wp-content/uploads/2021/02/RAPORT-ROCZNY-2020.pdf p.46.

[6] https://www.opensocietyfoundations.org/grants/past?filter_keyword=Federation+for+Women+and+Family+Planning

[7] https://globalfundforwomen.secure.force.com/GrantSearch/

[8] https://www.sigrid-rausing-trust.org/Grantees/Federation-for-Women-and-Family-Planning-FEDERA

[9] Committee on the Rights of Persons with Disabilities (CRPD), 'Comments on the Human Rights Committee's draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights', 2018, available online.

[10] See ECLJ, « NGOS AND THE JUDGES OF THE ECHR, 2009 - 2019», February 2020.

[11] https://www.agatabzdyn-legal.pl/agata-bzdyn-cabinet-d-avocat

[12] https://www.agatabzdyn-legal.pl/news/67/19/ABORCJA-I-PRAWA-REPRODUKCYJNE-W-ORZECZNICTWIE-EUROPEJSKIEGO-TRYBUNAlU-PRAW-CZlOWIEKA-CZesc-1-SPRAWY-PRZECIWKO-POLSCE/d,blog

[13] She was also counsel in the cases of Tysiąc and R.R. v. Poland, among others. See http://gasiorowska.eu

[14] https://www.hfhr.pl/wp-content/uploads/2020/09/B.-B.-p.-Polsce-amicus_2_PDF.pdf

[15] Tysiąc v. Poland, no. 5410/03, 20 March 2007; R.R. v. Poland, no. 27617/04, 26 May 2011; P. and S. v. Poland, no. 57375/08, 30 October 2012