In Poland, women are unable to access abortion on demand except in very strict conditions. Due to these limitations, in the lastdecade, there have been two cases against the Polish state before the European Court of Human Rights (ECHR) questioning the provision of on-demand abortion services.
The legal argument used in the ECHR decisions may provide a relevant framework for discussion for the Romanian situation, highlighted by our investigation.
An ECHR decision from 2011, issued in the case of R.R. versus Poland, puts forth, among other things, the argument of the Special Rapporteur on the right of everyone to the enjoyment the highest attainable standard of physical and mental health (the Special Rapporteur is based within the Office of the UN High Commissioner for Human Rights).
According to him, “if a state has allowed providers to consciously oppose the provision of health services, it must ensure that it has other appropriate procedures in place to protect the ability of women to effectively exercise their rights under article 8 of the Convention, including the right to abortion, if it is legal, and the right to information regarding their state of health”.
The case of R.R. versus Poland was precisely about this: a woman had been denied access to medical investigations and abortion.
In the same decision, ECHR explains: “For the Court, the states are obligated to organize the system of medical services in such a way as to ensure that the effective exercise of the freedom of conscience of doctors in a professional context does not prevent patients from gaining access to medical services to which they are entitled under the applicable law”.
In a second case, P. and S. versus Poland, brought forth after a raped girl was denied medical access to abortion, the Court noted that the Polish Government had referred in its defense to the right of doctors to refuse certain services on grounds of conscience, in accordance with Article 9 of the Convention (freedom of thought, conscience and religion).
However, according to ECHR, states are obliged to organize their health care system in such a way that the exercise of this right does not prevent patients from gaining access to services to which they are entitled by law.
So far, the Romanian state has been exempt from court actions by women who are, by law, guaranteed the right to on-demand abortion services, but whose right is limited by the malfunctioning procedures and lack of predictability of the public medical system.
In the event that a case concerning the provision of abortion services will be filed against Romania at the ECHR, the Court’s judges would probably follow the established philosophy: even if doctors have the right to not perform medical procedures that they consider contrary to personal values, the state is obligated to ensure that such decisions do not limit the right of women seeking an abortion.