European Court of Human Rights Trying to Create Right to Abortion

International   |   J.C. von Krempach, J.D.   |   Nov 6, 2012   |   2:08PM   |   Strasbourg, France

While for many years the European Court of Human Rights (ECtHR) has simply failed to protect unborn children against being murdered (the lead case here is the ignominious Vo v. France decision of 2004, where the Court explicitly recognised that the embryo “belongs to the human race”, but at the same expressed doubts as to whether it qualified as a “person”…) it is now trying to fabricate a “Right to Abortion”.

A first step in that direction was the decision in the case Tysiac v. Poland, in which the Court on the one hand acknowledged that the European Human Rights Convention does not contain any entitlement for women to have access to abortion, while on the other hand it opined that “once a State allows abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion”. Similar judgments were issued in the cases of A, B, and C, v. Ireland (although, just as in the Tysiac case, it was manifest that none of the applicants were in a situation in which abortion would have been legal) and R.R. v. Poland.

In the newest abortion case, P. and S. v. Poland (Appl. Nr. 57375/08), the Fourth Section of the Court reiterates this erroneous opinion, and it is high time that the issue should be reviewed and set right by a Grand Chamber.

The facts underlying this decision amount to a long saga, which I will not repeat in full length here, as it fills more than seven pages in the ECtHR’s judgment. Just to summarize it very briefly, I should say that it appears to be uncontested that the first applicant (“P”), a girl of (then) 15 years, had fallen pregnant as a result of being raped by a boy of her own age, a circumstance under which abortion is legal under Polish law. However, when she – with the support of, or under pressure from, her mother (“S”, the second applicant) – sought to actually obtain an abortion, she met considerable difficulties. It appears that the doctors at the hospital she had turned to refused to perform the abortion for reasons of conscience, and they also refused to refer her to other doctors who might not have had such conscientious objections. Instead, they sought to dissuade her from having her pregnancy terminated. This involved the intervention of a Catholic priest (whom the first applicant says she never wanted to meet, whereas other witnesses seem to affirm that she had expressed the wish to see a priest), as well as some pro-life activists. At some point, the case came to be discussed in the public press, but it remains unclear whether the underlying facts had been disclosed to the press by the doctors (who, if that were the case, would have violated their professional obligation of confidentiality), or by the first applicant herself, or her mother, or any third persons.
In addition, there also appear to have been some doubts whether it was really the girl who wanted an abortion, or whether she was being put under pressure by her mother, the second applicant. This was why a Family Court decided to suspend the mother’s parental right and place the pregnant girl under custody, a decision that was, however, later revoked.

The abortion eventually took place in a different town, at a distance of 500 km of the applicants’ home town. Thereafter, the applicants filed criminal complaints against various persons involved, including various doctors, Catholic priests, and members of pro-life organisations. Those complaints were duly examined by the competent judicial authorities, but in the end they were all dismissed, as it was found that none of the accused had a criminal case to answer.

In the end, the two applicants brought their case to the ECtHR, which has now found the Polish State guilty of having violated various articles of the European Human Rights Convention (EHRC), including Article 8 (Right to respect for privacy), Article 5 (Right to liberty), and Article 3 (Prohibition of degrading or inhuman treatment).

Obviously, one should be very cautious in forming an opinion on this case. I personally object to the idea that it could ever be legitimate to kill a child even if it has been conceived as a result of rape, given that, irrespective of the circumstance in which it has been conceived, it nevertheless is a human being that has an inalienable right to life. Nonetheless, from a purely emotional point of view I can understand that a girl who is pregnant after having been raped may want to be rid of the child, especially if the legislation in place explicitly provides for the possibility of abortion. And of course, in that situation, I would not want my case to be discussed in the public media.

However, the ECtHR’s decision seems utterly ill-founded on several accounts. I limit myself to some very elementary points, hoping that other writers (on this blog or elsewhere) will find time to provide a more detailed analysis:

1. The judgment has no certain factual basis

This is not the first time that the ECtHR issues a judgment that seems to be based on fiction rather than facts, or the factual basis of which has not been duly ascertained. And it is, to say the least, a strange and sad coincidence that such careless negligence seems to occur always in the context of decisions which relate to abortion.

In Tysiac v. Poland, the Court completely neglected the fact that no less than eight specialized medical practitioners who had examined the applicant during or after her pregnancy, had found that the continuation of the pregnancy did not put her health at any risk (beyond the risk that is normally associated to each and any pregnancy), and that therefore this was no case where an abortion was lawful under Polish law. Instead, the Court based its findings on the opinion of one single general practitioner, who had affirmed that there was such a risk, and on the subjective fears and anguishes of the applicant. This shift from objective facts to subjectivity and emotion makes Tysiac one of the most obscure decisions in the Court’s history.

In A., B., and C., v. Ireland, the case was based on facts that had never been ascertained by any law court in Ireland or elsewhere, and which could therefore have been completely fictitious.

In the present case, the factual basis is again completely uncertain. For example, while the first applicant claims that she had been forced to discuss her pregnancy with a Catholic priest without having requested to see one, the hospital staff affirm in fact the girl had requested to see a priest, or at least accepted when this was proposed to her. While the applicants claim that the fact that the girl had been raped and was seeking an abortion had been disclosed to the press by hospital staff, the hospital staff accused of such misconduct flatly denied those charges. While the competent authorities apparently had reasons for concern that it was the girl’s mother rather than the girl itself who considered an abortion to be the only suitable solution, the applicants claimed that this was not the case. All of these circumstances seem to have been the subject of judicial proceedings in Poland, and in all of those proceedings the competent judicial authorities found that there was no case to answer. Yet the ECtHR appears simply base its decision on the assumption that the applicants’ version of the facts was correct, whereas the Polish Government’s version (which is based on the findings of the competent judicial authorities) wasn’t.

How does the ECtHR come to that conclusion? Nobody can know, because no explanation is given. The ECtHR has heard no witnesses, nor conducted its own enquiry, nor does it provide any argument why it believes that one version of the saga has more credibility than the other.

This leads to a question of broader importance: what is the role of the ECtHR in a case such as this, where it is the relevant facts rather than the relevant law that seem controversial?

If the facts were certain but the law controversial, the ECtHR might provide a basis for its finding that the respondent Stated has violated the Convention simply by demonstrating the incompatibility of that State’s legislation with the provisions of the Convention. For example, if there was a law in Poland allowing the hospital to disclose confidential information on the applicant’s predicament to the press, then obviously such a law would violate Article 8 of the Convention. But there is no such law in Poland. On the contrary, Polish law prohibits the disclosure of such confidential information, and provides for the possibility of legal action against those who are suspected of violating confidentiality.

The case thus appears to boil down to a claim that the various charges brought by the applicants against other persons (i.e. hospital staff, the Catholic priest, or certain pro-life activists) had not been properly examined by the Polish judiciary authorities and that, had they been correctly examined, they would have resulted in a different outcome. In other words, as Judge De Gaetano lucidly points out in his dissenting opinion, the essence of the claim really seems to be an alleged violation of the applicants’ right to a fair procedure (Art. 6 of the Convention).

But this claim has apparently not at all been substantiated by the applicants. And the ECtHR, in order to find a violation of this right, would have had to examine in more detail the various procedures conducted by the Polish authority. However, no such examination appears to have taken place.

This judgment is therefore a judgment without an established factual base. It is a monstrosity that an international judicial body that claims to have supreme authority over 47 European countries makes such a decision, which would never be accepted if it came from an ordinary law court. The question is whether we should accept it from the ECtHR.

Over and again, this case reveals a fundamental systemic weakness of the ECtHR. As one of the Court’s former judges, the Spaniard Javier Borrego Borrego has once famously pointed out, one of the Court’s main problems is that it mainly consists of judges that are no judges. Indeed, prior to their appointment as judges of the ECtHR, most of the Court’s judges have served as professors for Human Rights Law or in similar functions, but hardly any of them has ever worked as a judge in an ordinary law court. “Getting the facts and subsuming them under the applicable legal provisions is not something that fascinates them”, Borrego wrote. “Instead they think that their appointment as judges of the ECtHR gives them a mandate to replace the provisions of the Convention through their own theories and preferences…”

The present decision is a showpiece for this attitude.

2. The “Right to Abortion”

The second point I must make here is that the Court apparently, and not for the first time, appears to commit a logical error that would not be acceptable of it came from an undergraduate law student, but which is even less acceptable if it comes from a body that claims to be Europe’s supreme instance in all matters related to human rights. That error consists in confounding the legality of abortion with an entitlement to abortion.
The relevant passage in the P. and S. v. Poland judgment (which is found similarly in Tysiac v. Poland and A., B., and C., v. Ireland) runs thus:

“Once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion.

It is strange that the ECtHR should make such an argument with regard to abortion, given that no reasonable person would ever seriously think of making a similar statement with regard to any other type of surgery. For example, as one author has already lucidly pointed out years ago, eye laser surgery to correct myopia or hyperopia is doubtlessly legal, but that does not create any legal entitlement for anyone to have such surgery. Nor is there any obligation for any doctor to perform it, or to refer anyone to another doctor who will perform it. The medical profession is a profession in which contractual freedom applies (except in cases where urgent action is needed to save a life or to prevent irreparable damage – but abortion is not such a case). And obviously, the State also is under no obligation to make eye laser surgery available.

But eye laser surgery (or, for that matter, cosmetic surgery in general) is morally rather uncontroversial, whereas the problem with abortion is that it involves, as the ECtHR itself has acknowledged, the killing of someone who “belongs to the human race”. Thus, if the legality of an ethically uncontroversial type of surgery does not imply an entitlement, the legality of abortion creates even less of an entitlement.

Indeed, if a parallel needs at all to be drawn, it should not be between abortion and other types of surgery, but between abortion and other ethically controversial acts.

For example, between abortion and prostitution.

There are many countries where prostitution is legal in the sense that, under certain circumstances it is not prohibited by law. If certain conditions (most of which relate to public health concern or the protection of minors) are met, women may sell sex, and men may buy it. But never has it been claimed that a State that has legalized prostitution is under an obligation to make it available. Or that, in such a country, if a woman does not want to prostitute herself, she is under an obligation to find a prostitute for any man wishing to have sex with her.

Is that comparison too far-fetched? I think not. Both prostitution and abortion have in common that they are intrinsically immoral acts. The difference is that prostitution only involves extramarital sex, whereas abortion involves the deliberate killing of human being.

3. Freedom of conscience

As becomes apparent from the above considerations (as well as from the account of facts found in the P. and S. v. Poland judgment), the “problem” with abortion in Poland is not that Polish law is too restrictive, but that hardly any medical practitioner wants to perform abortions. Most doctors have objections of conscience, because their cothey are aware that abortion means killing an innocent human being. It is the objective truth that imposes itself on human conscience.



This “problem” does not only exist in Catholic Poland, but it reportedly also occurs in more secularized countries, such as the United Kingdom or Austria. Indeed, it seems no coincidence that the Right to conscientious objection has recently become the target of virulent attacks of the international abortion lobby.

One of those attacks took place in the Council of Europe’s Parliamentary Assembly, where a group of radically anti-human politicians led by the British socialist Christine McCafferty pushed for the adoption of a draft Resolution which would have called for the elimination of the Right to conscientious objection. But the attempt was averted, and the Assembly’s majority adopted a number of amendments through which the Right to conscientious objection was re-affirmed in all clarity and certainty. Thus, while there is no legal basis at all for any claim that anyone can have a “Right to Abortion”, there is no doubt at all with regard to this “Right to Conscientious Objection”, which, even in jurisdictions where it is not explicitly recognized, is derived from the Freedom of Conscience that is enshrined in Art 9 of the ECHR.

Quite obviously (and the comparison drawn between abortion and prostitution helps us in understanding this), a medical practitioner’s Right to Conscientious Objection does not only mean that he cannot be obliged to perform abortions, but also that he cannot be obliged to refer a woman to an abortionist. Indeed, it also includes for him to do whatever he deems necessary to prevent an abortion from taking place, as long as his actions do not violate the law.

It is thus simply silly for the ECtHR to argue that doctors wishing to make use of their Right to Conscientious Objection should be put under an obligation to refer women to doctors who will perform the abortion. Such an obligation would indeed itself be a human rights violation, which the Court must prevent rather than promote.

4. Parental Rights:

There is one further aspect in the P. and S. v. Poland judgment that deserves attention. It relates to the position as a “victim” of the second applicant, i.e. the pregnant girl’s mother. The relevant passage runs:

“The Court is fully aware that the issues involved for her in the case were different from those of the first applicant. The Court acknowledges that in a situation of unwanted pregnancy the mother of a minor girl is not affected in the same way. It is of the view that legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. This consideration applies also in a situation where abortion is envisaged as a possible option. However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter. Hence, the difference in the situation of a pregnant minor and that of her parents does not obviate the need for a procedure for the determination of access to a lawful abortion whereby both parties can be heard and their views fully and objectively considered…

These assertions are, to say the least, surprising. The position traditionally taken by the abortionist lobby is that there should be no parental rights, i.e. that if a girl of minor age wants an abortion the parents should neither have a right to be informed, nor have a right to prevent the abortion from taking place. Lo and behold, here we have the ECtHR which suddenly affirms the contrary: the pregnancy of the daughter affects the private life of the mother, who therefore has a right to be kept informed of everything and to make her views heard…

I certainly welcome the Court’s unexpected concern for parental rights. But I am just wondering: would the Court have taken the same position if the mother had spoken out against, instead of in favour of, abortion? Or is the Court meanwhile so imbibed with abortionist ideology that it makes the existence of parental rights depend on whether parents are for or against abortion??

In the light of what has been exposed above, I believe it is clear that this judgement is yet another lamentable instance that demonstrates how the ECtHR is drifting away from its role as an impartial and credible judicial instance. It becomes more and more apparent that this Court has an agenda of its own, and that this agenda implies subverting human rights rather than protecting them.

LifeNews Note: J.C. von Krempach, J.D writes for the Catholic Family and Human Rights Institute. This article originally appeared in the pro-life group’s Turtle Bay and Beyond blog and is used with permission.