The Council of Europe presses Poland to expand access to abortion and punish those hospitals that do not perform it

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The Committee of Ministers of the Council of Europe requested Polish authorities to create procedures for easier killing of children through abortion. The institution also requires the collection of information about hospitals where doctors invoke the conscience clause. The Committee demands easier methods for objecting to decisions by physicians who refuse to perform abortion. The officials want the authorities to hold the healthcare facilities that do not perform abortions accountable.

The Committee of Ministers is the body of the Council of Europe that is responsible for monitoring the enforcement of the judgements of the European Court of Human Rights by member states that lose a case. The requirement is connected with Poland’s alleged failure to execute judgements of the Tribunal in Strasbourg. In those judgements the ECHR claims that if a country permits abortion in certain specific cases (for instance a threat to the mother’s health, severe foetal disease or rape), it should create special procedures to guarantee every mother a possibility of killing her unborn child with ease.

In 2008, the Lower House of the Polish Parliament passed a bill on patient rights and a Patient Ombudsman. The new legislation guaranteed all patients two procedures to verify an unsatisfactory medical opinion – the right to request a second medical opinion or a medical staff conference and the right to object to a medical opinion or statement to the Patient Ombudsman’s Medical Committee.

However the Committee of Ministers consistently considers the adopted legal solutions as unsatisfactory. It claims that the right to object is underused by patients, which supposedly shows that the measure is not very effective. As a result, the Committee demands better access to the objection procedure. This would make it possible to perform more abortions. The officials also expect the conscience clause laws to be amended so that hospitals where a doctor refuses to perform an abortion would have to provide information about who could kill an unborn child and where.

The body of the Council of Europe also requires the gathering of information about the hospitals where physicians refuse to perform abortions by invoking the conscience clause. Furthermore, the Committee wants those hospitals that do not perform abortions to be held accountable under civil law (financial consequences) for failure to abide by the terms of the contracts with the Polish National Health Fund (NFZ), which still cover abortion in the area of gynaecology and obstetrics, in violation of the judgement of the Constitutional Tribunal dated 7 October 2015.

“Contrary to the claims of the Committee of Ministers, all ECHR judgements entered in abortion cases were enforced by Poland insofar as permitted by the law in effect in Poland, which in principle protects human life from the moment of conception. By addressing such demands to Poland, the Committee of Ministers oversteps its authority. The Tribunal in Strasbourg obligated Poland to introduce a procedure to verify the decisions of physicians, including decisions on no grounds for legal abortion, and Polish authorities responded with the introduction of not one but two such procedures. The Tribunal clearly emphasised that the protection of human life at the prenatal stage was an issue decided by the countries-parties to the Convention. So the Committee has no right to demand any specific solutions from Poland which could in fact impair that protection in Poland. The appeal to revile and gather information on the hospitals where abortions are not performed deserves even more criticism as this may stigmatise the physicians invoking the freedom of conscience guaranteed in Article 9 of the European Convention on Human Rights,” Dr Marcin Olszówka, Head of Legislative Analysis Centre of the Ordo Iuris Institute.

Cases: Tysiąc v. Poland, P. i S. v. Poland and R.R. v. Poland, decisions of the Committee of Ministers dated 3-5 March 2020.