A recent EU Court ruling means that Poland, which generally outlaws abortion but in theory permits it legally in cases of rape, is expected by the EU, on pain of recurring awards of damages to complainants, to make abortion not simply legal but actually available in those cases. (To read the EU's side of the story, including a lot of details, go here and scroll to "Chamber Judgment P. and S. v. Poland 30/10/2012.")
The story indicates that Poland's rape exception has been only grudgingly allowed under Polish law and that not only a great many Polish people and the Catholic Church but also the Polish medical establishment are not on-board with it.
A minor girl, age fourteen, became pregnant as a result of rape. The parents obtained a prosecutor's certificate of the rape to allow the abortion to take place, but they were then unable for a time to find a doctor or hospital that would carry out the abortion. One hospital let the general circumstances be known to the public, though without naming the parties. Members of the public were somehow able to use this information and (apparently) some revealing communications made by the family itself to friends to find out the identity of the people involved and to make contact with the girl and her family, attempting to deter them from the abortion. The doctors also informed a priest, who spoke with the girl and attempted to dissuade her. The government removed the girl from her parents' custody for a time, alleging that the mother was attempting to coerce her into the abortion. Whether that was true or not (see below for more on that), the parents' custody was eventually restored, the parents found a hospital willing to kill the unborn child, and the abortion took place.
Now the EU has ordered Poland to pay damages to the family for the difficulty they had obtaining the abortion. There was one part of the situation where it seems to me that the government was at fault, and that was when the girl herself was investigated for illegal sexual contact; one infers that the rapist was also a minor. According to the EU court's summary the girl had suffered bruises, and the prosecutor appears to have been convinced that a genuine assault had taken place. It's unclear exactly why the government carried out that investigation of the girl and whether it was another attempt to find a way to prevent the abortion, but it certainly seems to have been unjustified.
Aside from that, however, I am not at all convinced that any of the government's or medical personnel's actions in attempting to prevent the abortion were wrong. Yes, of course, in our HIPPAA-taught society, for a doctor to tell a priest that a girl is considering abortion so that the priest can try to dissuade her seems the height of unprofessionalism, but it's not clear to me that it's objectively wrong. In fact, I can definitely see a point to it. (Abortion being murder, after all!)
The EU ruling is quite striking. A crucial passage goes like this:
As regards the complaint concerning the lack of unhindered access to abortion, the Court observed that the Polish Government had referred to the right of physicians under Article 9 of the Convention (freedom of thought, conscience and religion) to refuse certain services on grounds of conscience. However, States were obliged to organise their health system in a way that the exercise of that right did not prevent patients from obtaining access to services to which they were entitled by law.
In other words, if it is legal for a woman to have an abortion under certain circumstances in Poland, Poland must see to it that their health system is organized in such a way that women can actually get the abortion. The abortion is not merely to be regarded as legal. It is an entitlement.
The ruling goes on:
Polish law in principle provided for mechanisms to reconcile doctors’ right to conscientious objection with patients’ interests, in particular by obliging the doctor to refer the patient to another physician carrying out the same service. However, it had not been shown that those requirements had been complied with in P.’s case. The medical staff had not considered themselves obliged to carry out the abortion expressly requested by the applicants.
Those nasty doctors. The abortion was requested, and they didn't consider themselves obliged to carry it out! Well, we might let them get away with that if they were sure to go out and find a doctor who would, but they didn't do that either! The idea!
The Court had already held in another case that the provisions of civil law as applied by the Polish courts did not make available a procedural instrument by which a pregnant woman seeking an abortion could fully vindicate her right to respect for her private life. There were no grounds on which to reach a different conclusion in P.’s case.
There must be a regular procedure by which a woman can insure that she can get that baby killed. Anything else is insufficient and constitutes a violation of a woman's "right to privacy."
Oh, about that coercion matter, there is an odd discrepancy. The court's summary of the case states that the Family Court in Poland believed there was reason to think that the girl was being pressured by her mother to have an abortion which she herself did not want. However, the girl subsequently testified (after the abortion took place) that she had not been forced into it by her mother. One would think that would be the end of that question, though one might be a little curious about what made the Family Court in Poland suspect coercion. But the EU Court had these puzzling comments. (S. is the girl's mother.)
Furthermore, it had not been shown that the legal setting in Poland allowed for S.’s concerns to be properly addressed in a way that would respect her views and attitudes and to balance them in a fair and respectful manner against the interests of her pregnant daughter. While legal guardianship could not be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, it could not be overlooked that the interests and life prospects of the mother of a pregnant minor girl were also involved in the decision whether to carry the pregnancy to term or not.
Oh. In other words, maybe the mother was putting heavy pressure on the girl to have the abortion. And the EU Court is subtly telling the government to back off as far as protecting the girl from such coercion. Because, you see, the "interests and life prospects" of the pregnant girl's mother must be taken into account in deciding whether to kill the baby! And this paragraph is plunked down in the midst of a document that otherwise goes on ad nauseum about personal autonomy, a "woman's decision," and all the rest of the pro-choice malarkey! Choice devours itself, indeed. This is a signal to Poland that they really shouldn't take all that "choice" stuff too seriously when the pregnant girl is a minor and doesn't want an abortion but her parents want her to have one.
Probably we'll never know for certain just what the story was between the girl and her mother, but that ominous paragraph shouldn't go without notice.
The EU ruling is a house of horrors. And the reference to a different case shows that this EU Court has had its claws into Poland for a while for its reluctance in the matter of baby-killing.
It's worth noting that both the law and the extra-legal set-up in Poland, while by no means perfect from a pro-life perspective, are obviously vastly superior to the situation in the United States. Even in the "exceptions" circumstances where the unborn child is not actually protected in law, it appears that actually getting an abortion is by no means an easy matter, as this case demonstrates. That is precisely what the Robed Masters of the EU are unhappy about and want to change in a top-down manner by forcing Poland to pay damages again and again until, presumably, the Polish medico-legal establishment is cowed into making abortion more widely available in actual practice. That this will, if successful, eventually result in the coercion of doctors either to perform or to refer for abortions seems beyond doubt. Nothing will satisfy the EU Court but the assurance that there are places to which abortion-minded women can be reliably, swiftly, and eagerly referred in Poland to receive an abortion whenever one is technically legal. To insure that, Poland will probably have to make an active attempt to recruit or pressure doctors to do abortions. And the odd extra paragraph on "balancing" the interests of a pregnant teen with the interests of murder-minded grandparents in not being punished with a baby may well mean the erosion of the ability of a minor to resist a forced abortion.
We Americans have it bad enough with one runaway court. We should be glad that there isn't another, even more liberal, runaway court beyond that one.