Lessons from A.R. v. Poland and the New European Landscape

When Poland’s Constitutional Court moved in 2020 to eliminate fetal abnormality as a legal ground for abortion, it didn’t just restrict access. By announcing its decision but delaying publication for three months, it created a period when no one — patients, doctors, or hospitals — could be sure what the law actually was. That uncertainty alone became a barrier to healthcare.

On 13 November 2025, the European Court of Human Rights (ECtHR) addressed this directly in A.R. v. Poland. The Court ruled that the prolonged delay violated Article 8 of the European Convention on Human Rights because it deprived the applicant of legal clarity at a moment when she urgently needed it. The judgment highlights an important point: legal uncertainty itself can undermine reproductive rights.

In A.R.’s case, doctors detected a lethal fetal condition at 15 weeks of a wanted pregnancy. She found herself in the gap between the Constitutional Court’s announcement and its unpublished ruling — a moment when the law could change from one day to the next. Some hospitals had already stopped providing care, fearful of consequences. With COVID-19 border closures still possible, A.R. decided to travel to the Netherlands for an abortion, facing financial and emotional strain. The ECtHR recognized this forced travel as an unjust burden created by the state’s inaction and by the broader rule-of-law crisis affecting Poland’s judiciary.

The case is also the result of impressive grassroots mobilization. After the 2020 ruling, the Polish organization FEDERA encouraged women to file applications in Strasbourg, offering a template that roughly a thousand people used. A.R.’s situation was one of the first the Court accepted as demonstrating concrete harm. Meanwhile, the case drew eleven third-party briefs from both human rights groups and conservative organizations. Notably, the ECtHR did not rely on arguments from anti-choice groups, aligning instead with submissions defending reproductive autonomy.

Despite the judgment, abortion access in Poland remains fragile. Hopes for reform after the 2023 elections have faded, and legal access today depends heavily on Ministry of Health guidelines rather than parliamentary legislation. These guidelines allow abortion when mental health is at risk, but they are vulnerable to political pushback and can be ignored by hospitals. Many doctors still avoid providing care due to fear of criminal liability — a fear that has already cost women their lives.

In response to this growing instability, new mobilization is happening at the European level. The European Citizens’ Initiative My Voice, My Choice seeks to create an EU-wide standard for safe and accessible abortion care. Its upcoming hearing in the European Parliament shows how strongly the issue resonates beyond national borders. The A.R. judgment reminds us that reproductive rights rely not only on legal guarantees but also on clear, consistent implementation. Without legal certainty, rights remain fragile.

Source:
When Legal Uncertainty Violates Reproductive Rights – Verfassungsblog