Not just abortion : converging human rights and the rule of law in the European Court of Human Rights

Abstract

On 14 December 2023, the European Court of Human Rights (“ECHR”) ruled in the case M.L. v. Poland. The ECHR decided that the restrictions on abortion rights that Poland had violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights (“Convention”). The judgment is one more step and, surely, not the last in the rather intense battle over abortion law in Poland. On 22 October 2020, the Polish Constitutional Court (“CC”) restricted the already narrow right to abortion in Poland. The CC’s decision resulted from right-wing legal mobilization, and it ignited counter-mobilization by women’s rights advocate groups that turned to the ECHR for protection. The 14 December decision is thus the result of a string of mobilizations within which NGOs, populist power, law and religion, constitution, and the rule of law clash. However, contrary to the hopes of the initiators of the case, this is not a European Roe v. Wade moment. The ECHR again refused to affirm that Article 8 can be interpreted as conferring a right to abortion, as it did in the case of A., B., and C. v. Ireland. Nevertheless, the ECHR made significant findings regarding rule of law violations and claimed that the Polish CC did not meet the requirements of an independent court. Thereby, the ECHR indicated a desirable direction for further reforms in Poland.