INTERIGHTS Bulletin

186
INTERIGHTS Bulletin
Volume 16 Number 4 2011
also called for ensuring affordable
access to adequate emergency obstetric
care; providing adequate training for
health workers and imposing
sanctions on health professionals who
violate women’s reproductive rights;
ensuring that private healthcare
facilities comply with national and
international reproductive healthcare
standards; and ensuring access to
effective remedies for reproductive
rights violations. 11
Abortion Jurisprudence
Because abortion is often subject to
legal and procedural restrictions,
heavily stigmatised and highly timesensitive,
violations in the abortion
context are frequent. In the process of
protecting access to safe and legal
abortion, a growing body of
jurisprudence is articulating how
denial of medical treatment violates
fundamental rights and that states are
obligated to institute procedural
protections to prevent these violations.
Denial of Key Medical Services and
Information as Cruel, Inhuman and
Degrading Treatment
In its groundbreaking 2005 decision,
KL v Peru, the Human Rights
Committee, which oversees
compliance with the International
Covenant on Civil and Political Rights,
held that denial of a therapeutic
abortion violates the right to be free
from torture, cruel, inhuman and
degrading treatment. 12 It noted that
Article 7 ‘relates not only to physical
pain but also to mental suffering’ 13 and
that KL’s suffering was foreseeable. 14
In 2011, the European Court found in
RR v Poland 15 that denial of essential
medical information in the abortion
context can violate the right to be free
from cruel, inhuman and degrading
treatment. While the decision is not yet
final as Poland has appealed to the
Grand Chamber, the reasoning in the
case is instructive. RR was consistently
denied the genetic testing she needed
to make an informed decision about
whether to terminate her pregnancy
and to demonstrate that she qualified
for a legal abortion under Poland’s
highly restrictive abortion law. RR’s
doctors denied the testing precisely
because they believed RR would use
the information to terminate her
pregnancy. By the time RR received
confirmation of the foetal anomaly, it
was too late for her to obtain an
abortion. The European Court rejected
the Polish Government’s claim that
RR’s doctors were entitled to refuse to
provide these services on the grounds
of conscience, affirming that states are
obligated to organise their health
services ‘to ensure that an effective
exercise of the freedom of conscience
of health professionals...does not
prevent patients from obtaining access
to [legal healthcare] services...’ 16
In concluding that RR had been
subjected to inhuman and degrading
treatment, the European Court
analysed the relationship between
access to reliable medical information
and RR’s ability to exercise her right to
a legal abortion, and the mistreatment
RR experienced at the hands of her
healthcare providers. The Court noted
that it has found violations of Article 3
where authorities showed ‘a callous
disregard for [the] vulnerability and
distress’ seeking ‘information of
crucial importance’ to the applicants. 17
The Court recognised RR’s
vulnerability and ‘acute anguish’
caused by her inability to obtain
accurate information about her
pregnancy and that the health
professionals treating RR did not take
into account ‘the temporal aspect of
the applicant’s predicament’ or
acknowledge or address her
concerns. 18 It noted that RR was
‘shabbily treated by the doctors dealing
with her case’ who criticised and
belittled her for considering
terminating the pregnancy and that RR
had been ‘humiliated.’ 19
Meaningful Procedural Protections
and Timely Remedies
Access to abortion is highly timesensitive
because of the nature of
pregnancy, but there are many situations
where medical information and
treatment must be provided in a timely
fashion to protect a patient’s rights and
to prevent lasting harm. In those
instances,
abortion-related
jurisprudence affirming the importance
of procedural protections and timely
remedies could be applicable.
In determining exhaustion of domestic
remedies in KL v Peru, the Human
Rights Committee noted that
meaningful remedies had to be
attuned to the time-sensitive nature of
terminating a pregnancy and
remarked on the absence of an
‘administrative remedy which would
enable a pregnancy to be terminated
on therapeutic grounds, or any judicial
remedy functioning with the speed
and efficiency required to enable a
woman to require the authorities to
guarantee her right to lawful abortion
within the limited period...’ 20
Similarly, in Tysiac v Poland, another
European Court decision involving the
denial of a legal abortion in Poland, the
Court emphasised the importance of
clearly defined procedures to ensure
that healthcare providers can perform
abortions without fear of legal
penalties and to ensure that redress
procedures are in place for women
who have been denied an abortion. 21
The European Court recognised the
‘chilling effect’ that largely
criminalising a medical procedure can
have on its provision and stated that:
‘The provisions regulating the
availability of legal abortion should be
formulated in such a way to alleviate
this effect. Once the legislature decides
to allow abortion, it must not structure
its legal framework in a way which
would limit real possibilities to obtain
it.’ 22 The European Court noted that
‘the concepts of lawfulness and the
rule of law in a democratic society
command that measures affecting
fundamental human rights be, in
certain cases, subject to some form of
procedure before an independent
body....’ 23 In such instances, the
procedure should at a minimum
provide the pregnant woman with a
chance ‘to be heard in person and to
have her views considered.’ 24 The
relevant body ‘should also issue
written grounds for its decision.’ The
importance of these procedural